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Lawyer and Gun Activist
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Discussion Starter · #1 ·
So, this month's NRA magazine called Americas First Freedom has an article called "what guns are protected by common use?"

The common use language comes from the US Supreme Court case of District of Columbia vs. HELLER in 2008 where the Supreme Court said that the intent of the framers who wrote the bill of rights was that the Second Amendment covers those arms that were in common use at the time-- weapons that were chosen by the American society not chosen by the government.
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We at GeorgiaPacking have not discussed this in more than a decade,
so I'm soliciting new info / opinions on this topic.
 
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Well, no new technology (gun/cartridge/action/optics/caliber/barrel rifling) is ever common use. A library of arbitrary restrictions is available by picking random dates.
 

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Romans 10:13
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How conventional do the guns have to be?
 

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The problem is the 2A does not say anything about guns. The 2A protects the right of the people to keep and bear arms.You can bring the ships arms to bear on the enemy or you can do the same with the arms mounted on an M1Abrams.
 

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Depends on where you draw lines. "Self-loading" is a commonly used firearms technology in both rifles and handguns. Magazines come in all size. That should cover all variants of those technologies. A brand-new semi-automatic handgun that has a 33 round magazine may not have achieved "common use", but its fundamental design elements have.
 
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Discussion Starter · #9 ·
When it comes to items that are currently covered by the national firearms act of 1934,and subject to extremely burden some taxation and registration requirements (made even more onerous and affecting more classifications of weapons after 1968)...

... how can any court today judge whether such weapons would be in common use but for a long-standing federal law going back three or four generations that practically prohibited them ?

Should the courts speculate about what level of ownership these kind of weapons would have in our society were they not so restricted?

Saying "fully automatics are not common therefore they're not covered by the second amendment" is disingenuous when the federal government practically banned machine guns within 20 years after they first became established on the market among military and police agencies.
 
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... how can any court today judge whether such weapons would be in common use but for a long-standing federal law going back three or four generations that practically prohibited them ?
This is one of the reasons the common use language is so problematic. On par with the 9th circuits continued use of intermediate scrutiny to uphold any gun control law that California or Hawaii dream up. It always goes like 1) Yes, the 2nd amendment is implicated and 2) none of that matters because of a compelling government interest.

Perhaps an analysis of the text, history and tradition would be better than the common use test.

In colonial times owning a privateer warship was extremely expensive. The common person with a law practice, silverworks shop, or grocery in Boston couldn't be expected to have one. And yet those very people did enjoy a 2nd amendment. Should an analysis of the cost of an item absent government banning them be considered to determine likely common use?
 

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none of that matters because of a compelling government interest.
Like so much that happened under FDR, United States v. Carolene Products was a abomination. Probably second (under Wickard) in the worst SCOTUS decisions of all time.
 

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Saying "fully automatics are not common therefore they're not covered by the second amendment" is disingenuous when the federal government practically banned machine guns within 20 years after they first became established on the market among military and police agencies.
I think they’re common if the government issues them though…
 

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I think they’re common if the government issues them though…
Excellent point. There are many people issued automatic weapons that are civilians. Police, for example.
 
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Discussion Starter · #14 ·
I don't know that 1n the 1790's, it was a "Second Amendment Right" to own bombs, artillery rockets, cannon, and private warships.

The fact that a few private people or private groups owned such things COULD MEAN that the gov't did not see a good reason to restrict them at that time, rather than having a strict hands-off-our-cannon policy due to the 2A.

Sometimes (more often THEN, back in the 18th Century) the gov't chose not to exercise its powers to the very limits of the Constitution.
 

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I don't know that 1n the 1790's, it was a "Second Amendment Right" to own bombs, artillery rockets, cannon, and private warships.
About that....

"during the American Revolution and the War of 1812 the United States relied heavily on privateering, which was commonly referred to as “the militia of the sea.” In general, the term privateer refers to a privately-owned ship or sailor commissioned by a government to raid an enemy’s military and merchant shipping. "
-- The Militia of the Sea

"During the siege of Boston at the onset of the American Revolution, George Washington had leased private ships and manned them with uniformed personnel. The Continental Congress went further in March 1776 by permitting private citizens “to fit out armed vessels to cruise on the Enemies of these United Colonies.” "

How a Rogue Navy of Private Ships Helped Win the American Revolution
-- How a Rogue Navy of Private Ships Helped Win the American Revolution


The fact that a few private people or private groups owned such things COULD MEAN that the gov't did not see a good reason to restrict them at that time, rather than having a strict hands-off-our-cannon policy due to the 2A.
I think you mean MANY HUNDREDS. And it is worth noting that the Colonial Navy had only 27 ships, and the US Navy today has only ~480.

"According to the National Park Service, approximately 800 vessels were commissioned as privateers throughout the American colonies during the American Revolution."

MASSACHUSETTS PRIVATEERS DURING THE SIEGE OF BOSTON
-- Massachusetts Privateers During the Siege of Boston - Journal of the American Revolution

And they did far more than "not restrict them". They recruited them, paid them, and allowed them to keep any plunder they obtained.
 

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Discussion Starter · #16 · (Edited)
Again, because something was "allowed to take place" does not mean that it is a constitutional right or that the government at the time was without the power to restrict it.


It could have been legal then, even encouraged, because it served society with a favorable risk / benefit anslysis.
 

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Arms means anything The People can use to repel tyranny, whether foreign or domestic.
 
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Stephen Halbrook, the author of the OP's referenced article, on referenced Caetano v Massachussets on pg 31, which overturned a ruling in MA that stun guns were not protected because they were not in common use in 1790s. Justice Alito explained that "Ms. Jaime Caetano got the stun gun for protection from threats by her abusive ex-boyfriend who ignored restraining orders...'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'."

The author also cited testimony before congress with respect to nunchaku bans and that at the time Ted Kennedy's bill's description matched a jump rope.

Hopefully this adds to the discussion based on the article that @gunsmoker references.
 
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