{"id":2887,"date":"2023-09-27T10:16:20","date_gmt":"2023-09-27T14:16:20","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2887"},"modified":"2025-12-20T17:27:04","modified_gmt":"2025-12-20T21:27:04","slug":"what-part-of-in-common-use-dont-you-understand-how-courts-have-defied-heller-in-arms-ban-cases-again-mark-w-smith","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/what-part-of-in-common-use-dont-you-understand-how-courts-have-defied-heller-in-arms-ban-cases-again-mark-w-smith\/","title":{"rendered":"What Part of \u201cIn Common Use\u201d Don\u2019t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases\u2014Again – Mark W. Smith"},"content":{"rendered":"\n
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What Part of \u201cIn Common Use\u201d Don\u2019t You Understand?: How Courts Have Defied Heller <\/em>in Arms-Ban Cases\u2014Again<\/h2>\n\n\n\n

Mark W. Smith[*]<\/strong><\/a><\/p>\n\n\n\n

Introduction<\/h2>\n\n\n\n

In the year since New York State Rifle & Pistol Association v. Bruen<\/em>[2]<\/a> was decided, a line of argument has developed in the lower courts that effectively seeks to relitigate and nullify District of Columbia v. Heller<\/em>.[3]<\/a><\/p>\n\n\n\n

Heller<\/em> established the constitutional test to determine what arms are protected by the Second Amendment. After examining the text of the Second Amendment, as illuminated by history, Heller<\/em> determined that bearable arms that are \u201cin common use\u201d today are constitutionally protected and cannot be banned.[4]<\/a><\/p>\n\n\n\n

To circumvent Heller<\/em>, government litigants, their amici, and some lower courts have seized upon a single sentence in Bruen<\/em> that states that \u201c[w]hile the historical analogies here and in Heller <\/em>are relatively simple to draw, other cases implicating unprecedented societal concerns<\/em> or dramatic technological changes<\/em> may require a more nuanced<\/em> approach.\u201d[5]<\/a> Gun-control proponents claim that improvements in firearms technology, such as the development of semiautomatic weapons, are \u201cdramatic technological changes\u201d and that mass shootings are \u201cunprecedented societal concerns\u201d that did not exist at the Founding. According to some courts, these changes and concerns justify bans on so-called \u201cassault weapons\u201d and what are mislabeled \u201clarge capacity magazines.\u201d[6]<\/a><\/p>\n\n\n\n

That contention is wrong because Heller<\/em>\u2019s \u201cin common use\u201d test governs in all arms-ban cases including \u201cassault weapon\u201d bans, \u201clarge capacity magazine\u201d bans, and non-roster handgun bans. The language from Bruen<\/em> regarding technological changes and societal concerns is not a legal test<\/em> that governs decisions either in arms-ban cases or in non-arms-ban cases. It is part of a description of the methodology<\/em> that Bruen<\/em> lays out for lower courts in deciding \u201cother cases\u201d not governed by Heller<\/em>\u2019s \u201cin common use\u201d test or by Bruen<\/em>\u2019s actual decision regarding restrictive, discretionary licensing systems regulating the public carry of arms.<\/p>\n\n\n\n

Just as generations of Latin students learned that \u201cAll Gaul is divided into three parts,\u201d[7]<\/a> all Second Amendment cases after Heller<\/em> and Bruen <\/em>are divided into two categories: 1) laws that ban the possession or sale of particular arms (or the components required for them to function),[8]<\/a> or 2) laws that otherwise regulate the sale or use of arms without banning particular weapons.[9]<\/a> Cases in the first category are directly controlled by Heller <\/em>and its test for arms bans. Cases in the second category are not.<\/p>\n\n\n\n

In arms-ban cases, Heller<\/em>\u2019s \u201cin common use\u201d constitutional test<\/em> controls, and there is nothing for the lower courts to do except apply that test<\/em> to the facts at issue. In other, non-ban cases, the methodology<\/em> described in Bruen<\/em> must be followed to arrive at a test<\/em> that provides the rule for deciding that case and similar cases.[10]<\/a> It is only in the second, non-arms ban category of cases that \u201cunprecedented societal concerns\u201d and \u201cdramatic technological changes\u201d might have some application. But that language is not itself a test, <\/em>and it is irrelevant in arms-ban cases.<\/p>\n\n\n\n

The Heller<\/em> test looks at what arms are \u201cin common use\u201d today, not in the past. If semiautomatic rifles and handguns that accept detachable magazines are in common use today, they are protected. Their ubiquity, and their being \u201cin common use,\u201d confirms their protected status under the Second Amendment.<\/p>\n\n\n\n

Such arms cannot be banned simply because they employ technology that some legislators or judges think is too dangerous. When Heller<\/em> was before the Court, the parties and their amici presented arguments concerning the alleged exceptional \u201cdangerousness\u201d of modern firearms (in that case, handguns).[11]<\/a> After considering these arguments, the Supreme Court adopted the \u201cin common use\u201d test without any exceptions for weapons that are allegedly too dangerous.<\/p>\n\n\n\n

Likewise, parties also presented arguments concerning \u201cunprecedented societal concerns\u201d to the Heller<\/em> Court.[12]<\/a> The Court adopted the \u201cin common use\u201d test without any limitation based on these allegedly unprecedented concerns.<\/p>\n\n\n\n

Nevertheless, some post-Bruen<\/em> courts have utterly disregarded the Supreme Court\u2019s binding precedent in Heller<\/em> governing what arms are protected. Having lifted language about \u201cunprecedented societal concerns\u201d and \u201cdramatic technological changes\u201d from Bruen<\/em>\u2019s description of the methodology<\/em> for non-arms-ban cases, some courts, as discussed below, have refused to apply Heller<\/em>\u2019s binding test. Instead, these courts conduct their own historical analyses to determine what arms are protected and formulate new tests that are contrary to Heller<\/em>. Under such tests, lower courts have held that arms that are \u201cexceptionally dangerous\u201d or \u201cparticularly dangerous\u201d\u2014such as \u201cassault weapons\u201d\u2014may be banned, even though they are unquestionably \u201cin common use.\u201d[13]<\/a> In doing so, these courts have not only refused to apply binding Supreme Court precedent but have also resurrected the discredited \u201cinterest balancing tests\u201d rejected in Heller<\/em> and expressly abrogated in Bruen<\/em>.<\/p>\n\n\n\n

I. Heller\u2019s<\/em> \u201cin common use\u201d test was reaffirmed in Bruen <\/em>and governs in arms-ban cases.<\/h2>\n\n\n\n

Heller<\/em> was an arms-ban case. The District of Columbia had imposed a ban on the possession of handguns, with only minor exceptions.[14]<\/a> The Heller<\/em> Court, therefore, had to decide whether handguns fell within the scope of the Second Amendment\u2019s protection of \u201carms,\u201d and thus could not be banned. To do that, the Court first had to decide the constitutional test for determining whether a class of arms is protected by the Second Amendment, and then determine whether that protection extended to the kind of arm at issue in the case.<\/p>\n\n\n\n

The Heller<\/em> Court applied the methodology later explicitly spelled out in Bruen<\/em> to decide the appropriate constitutional test.[15]<\/a> That methodology starts with evaluating the plain text of the Second Amendment. The plain text of the Second Amendment is clear\u2014it protects the right to \u201ckeep and bear arms.\u201d[16]<\/a> Because it is the right to keep and bear <\/em>arms, that implies one limitation of the right\u2014the arms it protects must be \u201cbearable.\u201d[17]<\/a> And what are arms? \u201cWeapons of offence, or armour of defence\u201d; in other words, \u201cany thing that a man wears for his defence, or takes into his hands or useth in wrath to cast at or strike another.\u201d[18]<\/a> The plain text of the Second Amendment thus has an expansive scope: \u201cthe Second Amendment extends, prima facie<\/em>, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.\u201d[19]<\/a> Moreover, the term \u201carms\u201d includes \u201cmodern instruments that facilitate armed self-defense.\u201d[20]<\/a><\/p>\n\n\n\n

Heller <\/em>also indicated that the Second Amendment\u2019s protection, like that of other constitutional rights, is \u201cnot unlimited.\u201d[21]<\/a> Although those in support of arms bans quote that language as a talisman, the statement is really an unremarkable observation about constitutional law. The Court read United States v. Miller<\/em>[22]<\/a> as recognizing that \u201cthe Second Amendment extends only to certain types of weapons.\u201d[23]<\/a> When it came to consider \u201cwhat types of weapons Miller<\/em> permits,\u201d the Court noted that \u201cMiller<\/em> said \u2026 that the sorts of weapons protected were those \u2018in common use at the time.\u2019\u201d[24]<\/a> The Court identified one and only one historical tradition that could fairly support a ban on possession of a type of arm: \u201cthe historical tradition of prohibiting the carrying of \u2018dangerous and unusual weapons.\u2019\u201d[25]<\/a> This limitation dovetailed with the historical practice of the militia bringing \u201cthe sorts of lawful weapons that they possessed at home to militia duty\u201d; i.e.<\/em>, weapons that were \u201cin common use at the time.\u201d[26]<\/a><\/p>\n\n\n\n

These passages, taken together, established a constitutional test<\/em> for determining what kinds of arms are protected under the Second Amendment. In more formal language, Heller<\/em> established the rule of decision<\/em> for arms-ban cases: that is, the legal principle governing judicial decision-making in cases of a particular kind.[27]<\/a> The general rule of decision embraced in Heller <\/em>is that arms \u201cin common use\u201d are protected by the Second Amendment and cannot be banned. That is the legal test in a Second Amendment challenge to an arms ban. The Court then applied that constitutional test or rule of decision to the facts presented by Heller<\/em> and held that because handguns are \u201cin common use,\u201d handguns cannot be banned.<\/p>\n\n\n\n

Heller <\/em>remains good law and provides the binding rule of decision in arms-ban cases.[28]<\/a> When the modern-day regulation seeks to ban a type of arm, the Heller <\/em>test controls. Far from undermining or altering Heller<\/em>, Bruen <\/em>reinforced it, stating expressly that Heller <\/em>found that \u201cthe Second Amendment protects the possession and use of weapons that are in common use.\u201d[29]<\/a> And Bruen<\/em> added that \u201ceven though the Second Amendment\u2019s definition of \u2018arms\u2019 is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.\u201d[30]<\/sup><\/a><\/p>\n\n\n\n

In its discussion of historical analogues, Bruen<\/em> was merely describing, for the benefit of litigants and lower courts, the methodology <\/em>that should be followed in future non-<\/em>arms-ban cases, so that courts could perform the proper analysis in those cases. Only in non-arms-ban cases might the societal concerns and technological changes have some relevance. But such concerns and changes do not create an exception to Heller<\/em>\u2019s \u201cin common use\u201d test or allow that test to be cast aside. The Heller <\/em>test is not an exception to the Bruen <\/em>methodology, but rather the result <\/em>of the Court\u2019s application of that same \u201ctext and historical tradition\u201d methodology to the facts in Heller<\/em>. Bruen<\/em> merely described for lower courts how to apply that methodology in types of Second Amendment cases yet to be decided. Arms-ban cases are not such cases, for Heller<\/em> already has decided that the \u201cin common use\u201d test governs.<\/p>\n\n\n\n

Straightforward application of the \u201cin common use\u201d test should lead courts to strike down bans on \u201cassault weapons\u201d and on \u201clarge capacity magazines\u201d because those arms and magazines are unquestionably in common use.<\/p>\n\n\n\n

II. Bruen <\/em>described the methodology to be followed in cases in which Heller<\/em> does not establish the rule of decision.<\/h2>\n\n\n\n

Heller<\/em>\u2019s \u201cin common use\u201d test is of little, if any, relevance in Second Amendment cases in which the question presented is not whether a particular arm is protected, but some other issue regarding the possession or use of arms.<\/p>\n\n\n\n

Because the lower courts had largely misapplied Heller <\/em>for fourteen years, the Bruen<\/em> Court felt compelled to explain exactly how an originalist approach should proceed in non-arms-ban cases in the future. The Supreme Court used Bruen<\/em> as a teaching tool for lower courts that failed to follow the clear originalist methodology demonstrated in Heller<\/em>. But Bruen<\/em> first had to clear away the underlying mistakes made by the lower courts. No, Bruen <\/em>said, there is no two-step test, in which Second Amendment rights could be, and nearly always were, eliminated by intermediate scrutiny \u201cinterest balancing.\u201d[31]<\/a> No, Bruen <\/em>said, addressing the specific issue before the Court, Second Amendment rights are not a privilege that can be denied to almost everyone through a restrictive, discretionary licensing system that requires a showing of \u201cproper cause\u201d (that is, a special need) to obtain a license.[32]<\/a><\/p>\n\n\n\n

Having done away with these past errors, Bruen<\/em> then outlined how lower courts should conduct an originalist analysis in non-arms-ban cases. Courts should begin with an examination of the plain text of the Second Amendment as it bears on the question under consideration.<\/p>\n\n\n\n

In keeping with Heller<\/em>, we hold that when the Second Amendment\u2019s plain text covers an individual\u2019s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation\u2019s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation\u2019s historical tradition may a court conclude that the individual\u2019s conduct falls outside the Second Amendment\u2019s \u201cunqualified command.\u201d[33]<\/a><\/p>\n\n\n\n

Note that this is not itself a test or a rule of decision. This is instead a description<\/em> of a methodology<\/em> that a court must employ to arrive at<\/em> a rule of decision<\/em> comparable to the \u201cin common use\u201d test that Heller <\/em>ultimately arrived at for arms-ban cases. Bruen <\/em>expressly tied this methodology to the approach the Court had followed in Heller<\/em>; hence, Bruen<\/em>\u2019s phrase \u201cin keeping with Heller<\/em>.\u201d In explaining why the two-step approach previously employed by the lower courts must be rejected, the Bruen<\/em> court \u201csummarize[d] Heller<\/em>\u2019s methodological approach to the Second Amendment.\u201d[34]<\/a> That summary showed that Heller<\/em>\u2019s methodological approach, even though not made so explicit, was the same as the methodology described in Bruen<\/em>. Indeed, in explaining and exemplifying a methodology for Second Amendment cases to come, Bruen<\/em> bolstered Heller<\/em>\u2019s approach and constitutional test. Bruen<\/em> not only described the methodology to be applied, but also served as its own example of how the text-and-historical-tradition methodology is to be applied by the lower courts\u2014i.e., Bruen<\/em> showed by practice how to do what it and Heller<\/em> preached.<\/p>\n\n\n\n

Having explained the ways in which the lower courts had gone wrong under Heller<\/em>, Bruen <\/em>then went on to prescribe in detail how Heller<\/em>\u2019s methodology should be implemented in other cases by use of historical analogues. That methodology for the future included observations about three situations in which the presence or absence of analogues might suggest the unconstitutionality of a present-day law,[35]<\/a> a discussion of reasoning by analogy and when two laws may be \u201crelevantly similar,\u201d[36]<\/a> two important \u201cmetrics\u201d for comparing analogues,[37]<\/a> and related matters.<\/p>\n\n\n\n

It is deep within this discussion of analogues that Bruen<\/em> noted that, unlike the relatively straightforward analogues in Heller<\/em> and in Bruen<\/em> itself, there might be circumstances in \u201cother cases<\/em>\u201d in which \u201cunprecedented societal concerns<\/em> or dramatic technological changes<\/em> may require a more nuanced<\/em> approach.\u201d[38]<\/a> But this consideration comes into play only when a court is engaged in examining analogues in non-arms-ban cases for which Heller<\/em> does not provide the binding rule of decision. Bruen <\/em>acknowledges that in these \u201cother,\u201d non-arms-ban cases some questions may require a \u201cmore nuanced\u201d approach to the use of historical analogues than the relatively easy questions presented in Heller<\/em> and Bruen.<\/em> Because Bruen<\/em>\u2019s discussion of societal concerns and technological changes applies only in non-arms-ban cases, arguments about alleged societal concerns and technological changes are not relevant in arms-ban cases because Heller <\/em>provides the relevant legal test.<\/p>\n\n\n\n

III. The Heller<\/em> \u201cin common use\u201d test already accounts for technological changes and societal concerns arising from those changes by providing Second Amendment protection to arms \u201cin common use\u201d today.<\/h2>\n\n\n\n

A common argument raised in support of \u201cassault weapon\u201d bans is that due to alleged \u201cdramatic technological changes\u201d so-called \u201cassault weapons\u201d and \u201clarge capacity magazines\u201d are more lethal than previous kinds of firearms, and lead to increased mortality in mass shootings. But that argument is misplaced for many reasons.<\/p>\n\n\n\n

First, the Supreme Court has been aware of such contentions throughout the development of its Second Amendment jurisprudence. In the 2010 McDonald<\/em> case, some respondents had urged that the \u201cSecond Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety.\u201d<\/p>\n\n\n\n

But the Supreme Court dismissed this assertion by correctly noting that:<\/p>\n\n\n\n

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.[39]<\/a><\/p>\n\n\n\n

Second, briefing in Heller<\/em> pointed out the alleged exceptionally dangerous nature of handguns, the rise of mass shootings, and similar concerns about violence and public safety. Ironically, when Heller <\/em>was briefed in 2008, the District of Columbia and its amici argued that handguns<\/em> were particularly dangerous and lethal, while there were few, if any, mentions of rifles<\/em> such as \u201cassault weapons\u201d being \u201cespecially dangerous.\u201d In Heller<\/em>, the District argued that its handgun ban \u201cdo[es] not disarm the District\u2019s citizens, who may still possess operational rifles and shotguns.\u201d[40]<\/sup><\/a> It further argued that \u201cthe [D.C.] Council . . . adopted a focused statute that continues to allow private home possession of shotguns and rifles, which some gun rights\u2019 proponents contend are actually the weapons of choice for home defense.\u201d[41]<\/sup><\/a> Today, gun ban advocates argue that so-called \u201cassault rifles\u201d are unusually dangerous and must be banned.<\/p>\n\n\n\n

While the public policy arguments based on \u201cdangerousness\u201d that were briefed in Heller<\/em> cannot be listed comprehensively here, the following are a few examples:<\/p>\n\n\n\n