In his majority opinion in Heller, the late Justice Antonin Scalia encoded a concept of “in common use.” Basically, guns that are “in common use” for any lawful purpose cannot be banned or restricted to such a point that they’re unusable for those lawful purposes. Self-defense is the most cited lawful use, and some judges seem to think that’s the only one, but it’s not. It’s any lawful use.
And, to be fair, in the here and now, the phrase “in common use” is a useful shield.
However, there’s a perennial problem with the phrase, and that’s because the world of technology isn’t static.
I’ve repeatedly noted that I’m a science fiction nerd. While I also hold tradition important and think things of the past should be preserved, I also think that the world marches ever forward and that’s a very good thing. People tend to focus on communication or transportation as big advances coming down the line, but firearm technology will also continue onward. That includes some things that are, mostly, science fiction now but won’t be forever.
For example, I’m fascinated by rail guns. The idea of firing a projectile at ridiculous speeds using electromagnets is awesome, and the test firing of the Navy’s examples shows a round going so fast it ignited the air around it. While Uncle Sam seems to have abandoned its rail gun project, at least for now, hobbyists are still piddling with them.
Sooner or later, someone is going to come up with something, even if it’s not a rail gun, that will take weapons technology in an exciting new direction. It’ll probably be expensive to start with, and primarily for the military, but consumers will want their own versions, too.
The problem? Because it’s a new technology, it’s not in common use anywhere. It’s too new, too expensive, and too rare for many people to have one, and that’s the problem.
The weapons not “in common use” are, at least theoretically, free to be restricted as “dangerous and unusual” weapons. In fact, because they’re weapons, they’re going to be dangerous, and because the technology is fresh onto the market, they’ll be unusual.
Anti-gun lawmakers will leap onto this little fact and start passing laws banning this new technology. Don’t want to believe me? Well, look at “ghost guns.”
People were building their own firearms for years before anyone ever uttered a word about them. Most criminals got their guns via the black market, theft, or straw buys. The idea of making guns was too much work for them.
But the moment that a lawmaker decided it was a problem, the push to ban them started. 3D printing just sped up the push because now, people were making them, selling them, and using them. Numerous states started banning them…but between 2017 and 2023, despite tens of thousands of homicides by firearm, so-called ghost guns accounted for just 1,700. That’s an average of around 242 per year. It wasn’t a problem, but it was scary, so lawmakers demanded legislation.
Now, let’s think about something new, like, say, personal rail guns or something else that represents a significant leap in firearm technology. Because they’re new but scary, do you think the anti-gunners won’t try to make a thing about them? They’ll blast the airwaves about how these rail guns are too dangerous for civilian hands, and because they’re too new to be “in common use,” they might actually survive legal challenges that they shouldn’t survive.
That’s the problem.
Our Founding Fathers didn’t say anything about “in common use” because, in their minds, that wasn’t the basis for which rights are governed. It wasn’t about how many people had some new bit of technology; if that technology pertained to one of the rights enumerated in and protected by the Bill of Rights, then it shouldn’t be touched.
So yes, “in common use” represents a very real problem, and one that I hope the Supreme Court addresses very soon. I’d hate to see a force of tyranny somewhere down the road have firepower, particularly on an individual soldier basis, that the citizenry cannot match.
Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.
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