2A and "Infringement"

[Glaug-Eldare]

12. May be worthwhile to review the "common use" standard

Here's a quick legislator briefing on it I wrote up for our local gun rights group. It was required at very short notice, so it's not completely polished. Other commonly-used items include standard magazines, but I didn't address that.



In 1934, Congress passed the National Firearms Act in reaction to gang violence, specifically the St. Valentine's Day massacre in Chicago. This law created stringent regulations for the manufacturing, transferring, and transportation of machineguns and short-barreled long guns. In April 1938, two men (Jack Miller and Frank Layton) were put on trial for transporting a short-barreled shotgun unlawfully, and their defense challenged the constitutionality of such a law. They claimed that the National Firearms Act violated the 2nd Amendment right to keep and bear arms, and the law was ruled unconstitutional by the U.S. District Court for Western Arkansas. The case was appealed to the U.S. Supreme Court, which overturned their decision and ruled that the restrictions on certain types of firearms was, in fact, consistent with the Constitution. In doing so, they created a vague precedent that the 2nd Amendment guarantees the right of the people to possess arms "of the kind in common use at the time."

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. United States v. Miller (1939)

In 2008, the Supreme Court addressed this issue more directly in District of Columbia v. Heller, when six plaintiffs (including Dick Heller) challenged the constitutionality of the District's total ban on the possession of handguns. They looked to the Miller decision for guidance, and determined that the "common use" standard guarantees the right to keep and bear "the sorts of weapons [...] in common use at the time." Handguns being an extremely popular weapon used by law-abiding citizens for lawful purposes such as self-defense and recreation, they held that it was indeed unconstitutional to prohibit their possession.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “Ordinarily when called for militia service able-bodied men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, small-arms weapons used by militiamen and weapons used in defense of person and home were one and the same.” Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. District of Columbia v. Heller (2008)

In 2010, this ruling was explicitly applied against the states in McDonald v. Chicago. The Supreme Court reaffirmed the Heller decision, and overturned the previous decision in United States v. Cruikshank (1876), which had previously asserted that the Privileges or Immunities clause of the 14th Amendment did not incorporate the Bill of Rights against the states. Since then, lower courts have applied this standard to exotic weapons such as grenades, land mines, and pipe bombs, and agreed that, “unlike firearms which may be used for sports, recreation or for collection, pipe bombs have no legitimate purpose.” (United States v. Dempsey (1992); United States v. Tagg (2009)) No authoritative figures are available for modern sporting rifles, but a study by Christopher S. Koper estimates that 1.5 million were privately owned in 1994. A December 2012 article in Slate magazine suggests that 3,750,000 AR-pattern rifles are privately owned, not including other popular types such as AK-patterns and the Mini-14.

1. [url]https://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf[/url]
2. [url]http://www.slate.com/blogs/crime/2012/12/20/assault_rifle_stats_how_many_assault_rifles_are_there_in_america.html[/url]