What Firearms Have “Common-Use” Protections?

[Charlie T Waite]

What “arms” are protected by the Second Amendment? The text is explicit: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 

Since this is a right, the people, not the government, decide. The arms they keep in their homes and carry on their persons are protected. These include arms that are useful in a militia in order to secure a free state.  

In District of Columbia v. Heller (2008), the U.S. Supreme Court held that the Second Amendment protects “arms ‘in common use at the time’ for lawful purposes like self-defense” and arms that are “typically possessed by law-abiding citizens for lawful purposes.” Such arms are “chosen by American society,” not the government.

Heller was not the first court to enunciate the common-use test. For instance, the North Carolina Supreme Court in State v. Kerner (1921) upheld the constitutional right to carry a pistol openly without a license. To the citizen, “the rifle, the musket, the shotgun, and the pistol are about the only arms which he could be expected to ‘bear,’ and his right to do this is that which is guaranteed by the Constitution,” said the ruling. 

A few months before Congress passed the 1994 “assault weapons” ban, the U.S. Supreme Court decided in Staples v. U.S. that, to convict a person for an unregistered machine gun, the government must prove that the person knew it would fire automatically. The opinion by Justice Clarence Thomas noted: “The AR-15 is the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon.”

Observing “a long tradition of widespread lawful gun ownership by private individuals in this country,” some dangerous items like firearms and automobiles are “so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation,” wrote Thomas. Firearms, such as the AR-15, “traditionally have been widely accepted as lawful possessions ... .” So in Staples, the Court had already articulated a common-use test.

The Heller opinion, written by Justice Antonin Scalia, looked back to the Court’s 1939 decision in U.S. v. Miller, which had sent the case back to the trial court to decide whether a short-barreled shotgun, which was required to be registered under the National Firearms Act (NFA), “is any part of the ordinary military equipment” so as to be protected by the Second Amendment. 

Heller explained:

We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily 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.

Thus, Heller continued, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes ... .” That ruling was “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Recall that Staples referred to firearms and automobiles as dangerous but commonplace. In short, firearms in common use or typically possessed for lawful purposes are not “unusual.”

Which arms are in common use is established by what Americans acquire in a free market, not by whatever arms are left over after the government bans the arms that the people would have preferred. D.C. had banned “an entire class of ‘arms’ that is overwhelmingly chosen by American society ... ‘for protection of one’s home and family ... .’” Heller rejected the argument “that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.”

In addition to or instead of handguns, many Americans prefer long guns for self-defense and other lawful purposes. The Violence Policy Center argued in an amicus brief supporting D.C. in the 2008 Heller case that “shotguns and rifles are much more effective in stopping” a criminal; “handguns—compared with larger shotguns and rifles that are designed to be held with two hands—require a greater degree of dexterity.” Naturally, the anti-gun Center would reverse such arguments in later cases where it supported the banning of rifles.

In McDonald v. City of Chicago (2010), an opinion written by Justice Samuel Alito, the U.S. Supreme Court held that the right to keep and bear arms is a fundamental right applicable to the states through the Fourteenth Amendment. Dissenting, Justice Stephen Breyer worried that judicial enforcement of Second Amendment rights would require judges to resolve questions such as: “What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons?” The thing is, that’s a question for individual choice, not government diktat. As Justice Samuel Alito responded, it is not up to judges “to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise.”

After Heller invalidated its handgun ban, D.C. banned numerous rifles, which it previously argued were superior to handguns for self-defense. Thinking that Heller’s common-use test was a no-brainer that the courts would faithfully follow, our legal team challenged the ban in a case that became known as Heller II. In the U.S. Court of Appeals for the D.C. Circuit, two judges on the three-judge panel conceded:

We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market.

That should have been the end of the case in our favor, but it wasn’t. Presto, the court balanced the right away under “intermediate scrutiny” and upheld the ban. It disregarded our expert testimony that the pistol grip on an AR-15 is designed to stabilize the rifle when firing from the shoulder. The Court instead deferred to the pretense by a Brady Center lobbyist that the pistol grip “allows the shooter to spray-fire from the hip position.”

Brett Kavanaugh, then a judge on the U.S. Court of Appeals for the D.C. circuit, dissented in Heller II, writing: “After Heller, however, D.C. seemed not to heed the Supreme Court’s message. Instead, D.C. appeared to push the envelope again, with its new ban on semi-automatic rifles ... .” He averred that semiautomatic rifles and handguns “are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.” For that proposition, he cited both our expert Harold Johnson and Cabela’s website.

Judge Kavanaugh, of course, is now U.S. Supreme Court Justice Kavanaugh. There are perhaps six justices on the current Court who take the Second Amendment seriously. As of late 2021, American citizens legally owned over 20 million AR-15-type rifles, according to the National Shooting Sports Foundation, so clearly they are in common use.

In the meantime, in the 2016 decision of Caetano v. Massachusetts, the U.S. Supreme Court reversed a Massachusetts court decision upholding a stun-gun ban. The state court erred in holding stun guns not to be protected because they were not in common use when the Second Amendment was adopted, claiming they are “unusual” as a modern invention, and “only those weapons useful in warfare are protected.” This court didn’t seem to care that Heller had rejected each of these arguments. 

On appeal to the U.S. Supreme Court, Justice Alito explained that Ms. Jaime Caetano got the stun gun for protection from threats by her abusive ex-boyfriend who ignored restraining orders against him. He explained the evolving technology of protected arms: “While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols.”

To be banned, Alito continued, a weapon must be “both dangerous and unusual,” and thus “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” The high court thus vacated Massachusetts’ conviction of Caetano.

The common-use test has been criticized for ignoring the situations in which arms may be banned before they have a chance to be in common use or even after they are in common use. But the test only says that arms that are in common use are protected. It does not say that other arms are not protected.

Those scenarios are illustrated by the National Firearms Act of 1934. The bill, as it was originally proposed, would have restricted pistols and revolvers, other concealable weapons, silencers for concealable weapons, short-barreled shotguns and machine guns. Worried that small rifles might be considered concealable, then-Rep. Harold Knutson (R-Minn.) suggested adding to the list a rifle with a barrel under 18 inches, so as not to “make it impossible for our people to keep arms that would permit them to hunt deer.” He said this even though no one suggested that rifles with short barrels were a crime problem.  

But then pistols and revolvers were removed from the bill. So then, why weren’t short-barreled rifles and shotguns removed as well? Rifles with barrels under 18 inches were in common use before enactment of the NFA. For instance, over half a million Hamilton Model 27 .22 single-shot “boy’s rifles,” which had barrels from just under 15 to 16 inches, were manufactured, selling for less than $3 each. So the NFA essentially banned rifles that were in common use.

Also, the bill as originally proposed did not include a silencer for long guns, but only a silencer for a firearm capable of being concealed. Without any claim that noise suppressors for rifles were a crime problem, these devices that cost $5 at the time were suddenly subjected to a $200 tax, essentially banning them. Generations of hunters would suffer hearing damage as a result.

Now that the $200 tax in today’s dollars doesn’t amount to as much, such items are in common use again. As of 2020, there were 2,017,804 silencers registered to individuals and non-governmental entities. In 2021, there were 532,725 registered short-barreled rifles. But for the NFA, these numbers would be much greater.

It goes without saying that Congress banned outright rifles that were in common use in the 1994 “assault-weapon” law. Fortunately, that infringement sunset after 10 years, and the no-longer-verboten firearms are in even more common use today.

Protected arms are not limited to firearms. Frightened by Bruce Lee movies, in the 1970s, do-gooders rushed to ban nunchaku. In 1986, I testified before the U.S. Senate Judiciary Committee against then-Sen. Ted Kennedy’s (D-Mass.) bill to ban mail-order sales. He defined nunchaku as two sticks connected by cord. His face turned beet red when I pulled out a jump rope—it met his definition. I swung it around. The bill died.

But New York “saved the children” by criminalizing possession of nunchaku anyway. Martial artist James Maloney challenged the ban. In Maloney v. Singas (2018), U.S. District Judge Pamela Chen wrote that “the government bears the burden of rebutting the ‘prima facie presumption of Second Amendment protection’ that extends to all bearable arms.” Her careful reading of Heller led her to hold that the state must prove both that an arm is not in “common use” and is not “typically possessed by law-abiding citizens for lawful purposes.”

Neither alternative could be proven. Sales data and the lawful status of nunchaku in most states established its common use. And its lawful use in martial arts demonstrated its typical possession for lawful purposes.

When it decides New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court should give more guidance on the standard of review for Second Amendment cases. Meanwhile, petitions to review bans on commonly possessed firearms will be knocking on its door. 

Attorney Stephen P. Halbrook is a senior fellow with the Independent Institute and the author of 10 books, including The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? See stephenhalbrook.com.