Can an Arm ‘in Common Use’ Be ‘Dangerous and Unusual?’

In the Heller decision, the Supreme Court stated that arms that are “in common use for lawful purposes” are protected by the Second Amendment, but “dangerous and unusual” weapons may fall beyond the scope of the right to keep and bear arms. 

Since then, though, we’ve seen a number of courts declare that arms that are unquestionably in common use for lawful purposes like hunting, self-defense, competitive and recreational shooting aren’t protected by the Second Amendment because they’re “dangerous and unusual”, or sometimes “unusually dangerous.” 

As the Firearms Policy Coalition puts it in a new brief filed with the Fifth Circuit Court of Appeals, “application of the Supreme Court’s precedents in arms ban cases… has proven to be a thorny issue, with significant disagreement among the courts as to how the analysis should be run.”

FPC’s amicus brief in support of Knife Rights, Inc.’s challenge to the Federal Switchblade Act (known as Knife Rights, Inc. v. Bondi) argues that “[d]etermining which arms are ‘in common use’ and which are ‘dangerous and unusual’ are two ways of asking the same question, or inverse ways of drawing the same constitutional line.”

Because that line comes from “the Nation’s historical tradition of firearm regulation,” not anything in the semantic meaning of the Second Amendment’s text, it must be the result of the historical inquiry prescribed by Bruen, where the Government shoulders the burden. Indeed, the “common use” and “dangerous and unusual” inquiry is the very product of the Supreme Court’s already having done the historical analysis that is relevant to an arms ban case and constitutes a standard that is binding on this Court. And thus, this Court need not, and indeed may not, revisit the Supreme Court’s historical analysis in weapons ban cases to water that standard down.

Therefore, under Heller and Bruen, to sustain a ban on a particular type of weapon the government has the burden of demonstrating that it is not in common use but rather is a dangerous and unusual weapon. In some cases this will be an exceedingly simple inquiry. For example, if millions of Americans own a particular type of weapon for lawful purposes, then it would be impossible to consider that a dangerous and unusual weapon. And a type of weapon that is not overwhelmingly common numerically can still be “in common use” if it is generally lawful for typical Americans to own across the country. The key insight of the “common use” test is that the right protects the arms that the American people choose. If a substantial number of the People have chosen to keep or bear a type of arm that is generally lawful for typical people to possess, the Government simply cannot show that the arm in question lies outside of our constitutional tradition.

All arms are “dangerous” in nature, but it makes no sense that an arm that is in common use could also be “unusual.” The FPC brief cautions the Fifth Circuit, however, not to get too into the weeds when considering whether a particular arm is common or not.  

… this Court should bear in mind that when asking whether an arm is common, the relevant question is whether a type of arm is common. Heller, for instance, asked whether “handguns” writ large are common, not whether any specific model or make is. And given that it is the Government’s burden to prove an arm is bannable, unless the Government can show some relevant distinction between the arm it chooses to ban (here, for instance, switchblades) and the broader category of arms it belongs to (concealable bladed weapons) that makes the banned arm materially distinct from others in the broader group, as long as the broader group of weapon is common, the targeted arm is protected. Even if the Government could show that the arm its banning is distinct from a class of common arms, it must still prove that the arm it is banning is “dangerous and unusual” and not itself common.

This makes sense. The Court did rule in Heller that bans on entire classes of arms are unconstitutional, but there’s nothing in the decision that suggests the justices would uphold a ban on, say, a specific caliber of handgun that’s less common just because it’s “unusual.”

Similarly, switchblades may be a subset of concealable bladed weapons, but they still belong to a class of arms that are undoubtably in common use for lawful purposes. Is the mechanism used to open a switchblade materially distinct enough from gravity-assisted knives or the standard pocket knife to make a switchblade “unusual” and unprotected by the Second Amendment? I doubt it, but that’s something that the Fifth Circuit needs to consider. 

The FPC brief makes another good point about the “common use” test. We’ve seen several courts declare that “large capacity” magazines aren’t in common use for self-defense because most defensive gun uses don’t involve more than ten rounds being fired in defense of self or others. They might be possessed for lawful purposes, but according to the courts they’re not actually commonly used for a lawful purpose. FPC points out that in Heller, the Court specifically said “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”

Too many courts have ignored what the Supreme Court actually said in Heller. Here’s hoping the Fifth Circuit doesn’t do the same when considering whether switchblades are part of a broader class of bladed arms that are in “common use” for lawful purposes. 

Editor’s Note: The Schumer Shutdown is here. Rather than put the American people first, Chuck Schumer and the radical Democrats forced a government shutdown for healthcare for illegals. They own this.

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