Article on Heller's "firearms in common use" test

the test should not have been whether arms were in common use by ordinary citizens for lawful purposes, but whether the arms at issue were in common use by the forces against which a well-regulated militia would be expected to compete.

The test should be whether something is a device that can be defined as an armament or arm. We should strive for a legal definition of arms that allows a broad classification of arms as opposed to other weapons.

In my mind, an arm is a device, or any component, ammunition, or accessory to that when used as intended, produces a destructive effect that can be directed by the user against a specific target individual, area, or object, and which produces little risk to the surrounding area, or unintended individuals or objects.

Swords, knives, spears, bows and arrows, firearms, clubs, unguided rocket and grenade launchers, axes, hammers, laser rifles, and light cannon are and artillery are arms.

Flamethrowers are questionable, but are likely to be arms because their effects can easily get out of control, not because of the misuse, but because of environmental conditions.

Large cannons and artillery are also questionable, because their effects can be directed over and out of visible sight.

Nuclear weapons and guided missiles are not arms, as their effects are indiscriminately destructive, with fallout being unpredictable in range, and they direct themselves.

I see the effort by the courts as a way to limit the availability of what are sometimes called modern sporting rifles and LCMs in anyway possible. If the notes are right the courts conflate M-16 and assault rifle to AR-15s and other semi-autos and LCM to no other purpose but military.
To me the Supreme Court does need to step in to clarify BUT that opens a potential negative result for us. Maybe it needs to wait till there is at least one more justice like Gorsuch.

"The First Amendment doesn't protect only mainstream media or mainstream churches."
Not yet, but they are working on it.

Despite the phrasing of Miller and Heller, I wonder if "in common use" is being misconstrued. Congress is prohibited from "infringing" upon "the right" "to keep and bear" "arms" by "the People". The court's job is to construe these words, as they were understood at the time.

The observation is made that the militia would muster with arms "in common use" at the time.

Now, let's suppose that there may always be some doubt as to what constitute "arms". Is it an "arm"? Or, is it NOT an "arm". Is a bayonet an "arm"?

One way of getting at an answer is to evaluate whether it is "in common use" at the relavant time. If the bayonet was "in common use" in the 18'th century then that observation would tend to suggest that it was construed to be within the bounds of "the right" to "arms". Could Congress have "infringed" on bayonets in the 18'th century? No.

In the 21'st century we could inquire whether the bayonet is - today - in "common use". If we undertook such a discussion we might reach a different conclusion. If we reached a different conclusion about "common use" then we might say that they do not qualify as "arms" under the "common use" doctrine. Nevertheless, they might qualify under some other doctrine; such as the observation that they are purchased by the military and rifles are fitted with bayonet mounts.

Suppose - for illustration - that Congress legislated against shotgun chokes. (Why they would do so is not important for this illustration.) We ask the same questions: Are shotgun chokes "in common use"? Are they purchased by the military and are military shotguns fitted with chokes?

We might discover that civilian fowlers universally employ chokes; while, at the same time, the military does not purchase any chokes. Perhaps even the Army skeet team does not use chokes. Is Congress at liberty to infringe upon civilian use of shotgun chokes?

I propose that the "common use" test is useful but not dispositive. If the argument for "common use" is persuasive, then it is all the more likely that the artifact IS an "arm" "the right" to which is protected. If the argument for "military efficiency" is persuasive, then it is all the more likely that the artifact IS an "arm" "the right" to which is protected. Under this reasoning, the shotgun choke has one claim to protection; a rifle chambered in 5.56 NATO with a 30-round removable magazine has a different claim to protection (even if it were found not to be useful for defense of hearth and home).

Given the "militia, necessary" clause of the 2A, all of the following seem to have unassailable claims for protection: 30-round magazines; 5.56 NATO chambering; full-auto action. Given the "self-defense" core interpretation, keeping in the home; and carrying in public spaces would seem to have unassailable claims for protection.

The article repeatedly cites the propaganda site "smartgunlaws.org" uncritically and unironically.

"The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans."

Tench Coxe
Pennsylvania Gazette, Feb. 20, 1788.

Why don't we have a "terrible implement of the soldier" test? That would actually be in line with the intention of the Second Ammendment

"[T]errible implement of the soldier" is consistent with "militia, necessary" and Miller's "contributing to the efficiency" arguments. Therefore, it is one more brick in a coherent wall that serves to contribute to a definition of those "arms" contemplated by the 2A.

As such, this term "terrible" serves to dismiss the notions of "weapons of war" having no place in civilian hands. It also serves to dismiss "dangerous and unusual".

I have long thought that the term "dangerous and unusual" has been given far more deference than it deserves. It long predates the Declaration of Independence and the constitutions of the several States who later formed the US under our present Constitution. What did "dangerous and unusual" mean when first used? Very hard to say through the mists of so many centuries; but, in any case, what did it mean in the US in 1792? Did it have any meaning whatsoever once the 2A was ratified?

How could we the People, or justices of SCOTUS, be expected to understand "dangerous and unusual" other than by application in America in court cases in the last quarter of the 18'th Century? Without court opinions from that particular era it seems to me that any reference to prohibitory language used in England long before is quite dangerous.

By analogy, what would we make of a law, passed by Congress or one of the several States, baring Roman Catholics from keeping or bearing arms? How much deference ought we - Americans - give to the English Bill of Rights protection reserved to "Protestants"?

Our search for meaning of the words in the 2A ought to begin from a premise that it was understood to protect a Right of the People. It was NOT intended to incorporate governmental prohibitions against arms that predated it. Such a point of departure doesn't answer questions about suitcase nukes; however, it ought to shed a lot of light on the permissibility/or-lack-thereof of "Won't-Issue" carry permits.

I love it when folks attempt to get to the intent of those who wrote the 2nd and the rest of the Constitution. Why? Because no matter what the author(s) stated, there were hundreds of others involved who all had their OWN intentions and understandings. Every ratifying convention for both the Constitution AND the Articles in addition to and Amendments of said Constitution had its own discussions and evaluations and determinations as to meaning of the language. As I tell students, there weren't no Kinko's back then. And there wasn't any internet. So the bare language is where ALL understanding must arise.

We can look at the federalist papers BUT we must first read the prior antifederalist papers to find out why the response was so. We must read Eliott's Debates or one of the other accumulations of information from the 1787 Convention.

And I am appalled that the SCOTUS THINKS they have any authority to decide what the document, the Constitution, that creates them means. No one branch of the federal government has any authority to decide the meaning of any word, words, or clauses in the Constitution. They are subordinate to the Constitution. They are the created and the Constitution is the Creator. We the People through our States are the sole arbiters of the Constitution because We the People through our States are the Creator of the Constitution and are thus superior to it. The lie about their authority perpetrated by the courts on the people solely exists because the courts have stolen powers retained by the people.

The BS terms "in common use" and "dangerous and unusual" are NOT found within the Constitution. If we wish to use a contemporaneous source, Federalist 84 points out the enumeration of Rights is necessary because Congress is not empowered to legislate in any of the areas covered by a bill of rights. The Congress and the Courts have been complicit in improperly expanding the power to regulate commerce among the States from the activity to things moved in that activity. Things are NOT commerce. Things that affect commerce do not attach except in the minds of those who would usurp authority. The granted powers of the Constitution prove that there are no attaching powers IF one can comprehend the relationships among the powers.

Excellent point about "intent". We can not say with confidence what - precisely - Madison or the first Congress "intended" by use of the words "right" or "arms". Even so, it is possible to say much about what we the People "intended" by insisting upon a Bill of Rights being added to the Constitution. With respect to each clause, we can say much about what we the People intended to proscribe because we know which abuses they addressed. By interpolation, we can find unenumerated rights among the penumbras and emanations surrounding enumerated rights and common practices of the era.

By no means do these activities make absolutely every right clear; nor specify all the powers that are "necessary and proper". There remains much work to be done. But by whom? Alas, this is not spelled out for us.

Congress, and State legislators, ought to begin their drafting of bills with some thought to whether they are within/without the extent of their powers. Clearly, their failure to show some restraint is a problem. And, we as voters, fail to rein them in.

It is the duty of judges to decide cases; and so, they are obliged to find the meaning of words and phrases in constitutions and laws. There is one remark in the Federalist Papers, and another remark in the Virginia ratifying convention that contemplate that the courts would interpret the Constitution. Admittedly, these 2 are thin justification for the powers that SCOTUS has assumed for itself. But that is not MY major objection. Instead, my objection is that SCOTUS has made it their habit to usually find the power for Congress or legislatures to do what they will whenever it accords with the justices personal sense of what governments ought to do. It is rare that these legislative bodies are constrained because SCOTUS has identified a right of the People. Moreover, SCOTUS is perfectly free to assert/withhold its judgement and explanation therefore by promptly taking some appeals while ignoring others.

The Founders warned us that the Constitution they left us was merely a "parchment barrier". It remained our duty as the People to insist that it be adhered to. I would like to see some Constitutional amendment that would somehow "fix" the judiciary; however, I have failed to imagine a textual fix with which I am somewhat satisfied.

I think our problem - here - must be solved by voting for Congressmen and legislators who will restrain themselves. And this duty falls to voters. In the past century our education institutions have conspired to eliminate civics from the curriculum. In the place of civics we have been taught to be subjects of a benevolent Government which manages us for our own good so that we may be told what "free stuff" we really need from the public treasury and what poison fruit we are forbidden.

We will not solve our problems here unless and until we come to the point of asking our children: 'How would you be governed?' That is to say: 'Once you grow up you will no longer be governed by your benevolent parents; nor by your - hopefully - benevolent teachers and principals. You will come into the duty to govern yourselves. Would you wish to be governed by one or another scheme of government? A theocracy? A hereditary monarchy? An emperor who assumes his throne by military power? Or, by a constitutional republic? What would you hold as the metes and bounds between public powers vs. individual rights of personal prerogatives?

Were we to ask this question of our youth - or even our fellow voters - today we can easily anticipate that they would - universally - be dumbfounded. That is the seat of our problem

Yes, ignorance is rampant. Thought is absent. While Mark Twain believed only 1 in 5000 was a thinker, I grant no more than 1 in 10,000. People are sheep. Those who run for office as a rule are only interested in power.

As to the courts HAVING to decide what things mean. Common definition of the text is the true limit of the meaning. Interpolating, extrapolating, are all crystal ball reading.

"For whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to."

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6

The Constitution means what WE THE PEOPLE say it means. The judiciary has always been out of control seeking to expand their power to the point of total control. The public schools are used to brain-wash the children. Think Pledge of Allegiance - a pledge written by a defrocked baptist minister who was a christian socialist with an avowed desire to destroy state sovereignty and create a utopian all powerful central government. The government has done the job of controlling the schools UNconstitutionally and through that illegitimate control has co-opted the children.

Reteach them one at a time. Individual sovereignty is the core of and key t natural law. See John Randall Tucker (1899) for an excellent discussion of God and man and the proper relationship of man and government.