February 27, 2021

The Illogical “In Common Use” Legal Standard

The Supreme Court’s District of Columbia v. Heller decision in 2008 was a landmark case. While it did confirm our right to keep and bear arms, it stopped short of overturning the plethora of bad laws that it should have. In this essay, I will demonstrate that the logic that the court applied in Heller was significantly flawed. In Heller, while addressing the 1939 Miller v. United States decision, the Supreme Court applied the standard of “the sorts of weapons protected were those ‘in common use at the time.’”

Some background: Jack Miller and Frank Layton were small-time crooks that had been convicted of illegal possession of a short-barreled shotgun–which had effectively been banned by the National Firearms Act of 1934. (NFA-’34.) The case was heard with Miller in absentia — he was still in prison on a string of charges. The illogical Miller decision revolved around the fact that in 1937, militias did not issue shotguns with barrels measuring less than 18 inches, so, therefore, Mr. Miller’s constitutional rights were not infringed by the National Firearms Act of 1934. That was a specious argument.  Instead of addressing the constitutional issue squarely, they deflected off into “in common use” semantics.  The Miller decision was bad law, and more recently the Supreme Court has compounded the Miller decision’s error, by echoing it in the Heller ruling.

Heller’s “in common use” test has been debated by legal scholars for the past 12 years. A piece authored by Nicholas J. Johnson published in Harvard Law and Policy Review is fairly typical. But both the Supreme Court and later analysts have overlooked a key logical flaw in this standard.  The flaw is this: The “In Common Use” standard ignores the potential common use by the citizenry that failed to develop because of previously-enacted unconstitutional laws or edicts. Looking retrospectively, the restraint on commerce created by gun laws is incalculable.  For instance, consider how many machineguns or submachineguns would now be “in common use”, if it were not for the onerous federal tax that congress established in 1934, or the ban on new manufacture (for private sale) with the Hughes Amendment, in 1986? It is impossible to quantify, but it is safe to assume that there would now be millions of machineguns now circulating in private hands if it were not for those two laws. Simply stated: They never achieved “common use” because congress unconstitutionally taxed and banned them!

Even in 1937, when the Miller decision was handed down, there had been restrictions on the commerce in machineguns and short-barreled rifles and shotguns for about four years. Who is to say that if were not for NFA-’34 that the popularity of the famed Model 1928 Thompson Submachinegun wouldn’t have flourished by 1937? Or that competing brands (presumably with more simplified blow-back designs and lower manufacturing costs) wouldn’t have hit the market, and sold in even greater numbers?  But we will never know, because congress slapped on an enormous $200 Federal transfer tax, registration, and background check requirements in 1934, and those have been in place ever since. While $200 might not seem like a huge sum of money today, but in 1934 it was a princely sum. A quick visit to The Inflation Calculator web site shows that $200 in 1934 equates to $3,826.78, today!  The cumulative rate of inflation since then has been 1,813.4%.

The Heller decision affirmed that the Second Amendment — with rights later incorporated by the Fourteenth Amendment — forbade any bans on self-defense weapons. In Heller, the court rightly showed that the Second Amendment was much more than a collective right (to raise state militias), but also an individual right. In that part, they did well. But in ignoring the absurdity of “in common use” tests, the Supreme Court was in serious error.  If they had discarded the flawed “in common use” legal standard, as they should have, then we’d be living in a much more free country, with our right to keep and bear arms restored. That right should trump all legislation.  But our rights haven’t been restored. We are still living under the tyranny of unconstitutional laws. Having the Supreme Court repeatedly deny writs of certiorari for firearms-related cases is dangerous. It is as if they are playing Monkey Hear No Evil.

In Heller, by relying on the Miller precedent, the court also failed to point out the arbitrary and capricious nature of legislation that attempts to distinguish between “legal” and “illegal” weapons, based on design factors or metrics such as how many cartridges it can fire with the press of a trigger, or a precise barrel length. How can the courts say with a straight face that a shotgun with an 18.1″ barrel is good, but that a shotgun with a 17.9″ barrel is evil?  Oh, and don’t forget that for rifles, the standard is different: 16 inches. Can’t they see the absurdity of such arbitrary legal standards? They might just as well say that we have the freedom of speech, except on Tuesdays, or when the moon is full. Or that a car with a 301 cubic inch engine is good, but one with a 302 cubic inch engine is evil.

In 2016, the Supreme Court reversed an absurd ruling by a Massachusetts appellate court that electric stun guns could be banned because they were not in common use in 1791. Thankfully, the court slapped down that silliness. But again, it did not go far enough.  If they had instead applied genuine logic, what the court should have ruled is that the “in common use” standard itself is inherently flawed, and thrown it out. They should have replaced it with a standard that recognizes that the right to keep and bear arms is an inherent, pre-existing right that was only re-affirmed by the constitution. The true standard is objective and straightforward. I’d call this The Inherent Right Standard. This test for this is quite simple, requiring only two questions:

  1. Question: Is what is at issue an “arm” (weapon) of any sort or size, or ammunition, or an accouterment to a weapon?
  2. Answer: Yes.
  3. Question: Is the party in question an adult citizen? (That is, someone who is part of “The People.”)
  4. Answer: Yes.
  5. Immediate Ruling: Both the owner and his “arm” is constitutionally protected, and any law, policy, tax, or edict that denies, restricts, licenses, or taxes the manufacture, ownership, control, purchase, import, export, carry, transport, maintenance, use, transfer, bequest, sale, or other disposition of any weapon, ammunition, magazine, related optics, or accouterments (regardless of its size, barrel or blade length, bore diameter, wattage, sound decibels, rapidity of fire, or any other specification) in any way is summarily null and void, nunc pro tunc.
“Reasonable” According to Whom?

Another flaw with District of Columbia v. Heller is that it vaguely leaves the door open to what the court called “reasonable regulation” of arms. But that would be in direct contravention of the Second Amendment’s unambiguous  “…shall not be infringed” wording. Any infringement, even if some people consider it “reasonable” is unconstitutional, on its face.

Similarly, the Heller decision attempted to distinguish what it called “dangerous and unusual” weapons, such as machine guns. But that is ludicrous. By their very nature, weapons are supposed to be dangerous. If they aren’t dangerous, then they aren’t weapons. Furthermore, militias–whether private or public–require the most dangerous weapons that the technological state of the art can muster, in order for them to be effective fighting forces. And, as I’ve already pointed out, a weapon can become “unusual” because of the prior restraint of laws, enforcement policies, or court rulings that unconstitutionally restrict them.

In summary, the courts cannot arbitrarily define “reasonable regulation” based on the political winds of the day nor can they determine something to be “dangerous and unusual”. Neither of these is in their purview because “…shall not be infringed” is an absolute and definitive phrase, with no leeway for “except on Sundays” sorts of hedging, weaseling, or gradual degradation, based on a decline in popularity or media acceptance.

Take Action

Please take a few minutes to read this article: SCOTUS Rejection of 2A Cases Moves Up Likelihood of a Forced Choice for Gun Owners. After digesting that, please contact your elected representatives, and impress upon them the gravity of this situation, some legal background, and where you stand on this issue.

I’ve often written about the legal maxim: bad law is no law. (Lex mala, lex nulla.) In Common Law that essentially dates back to the Magna Carta in the year 1215.  And more recently in our own nation — an inheritor of English Common Law — this maxim was confirmed in 1803, with the Marbury v. Madison decision.

We must also consider stare decisis. The term stare decisis is Latin for “to stand by things decided” — the whole concept of legal precedent. However, any precedent set by a bad legal decision that restricts our rights is not genuine, legitimate, or binding. Again: Lex mala, lex nulla And let’s not forget that this maxim applies to all three branches of government: legislative, judicial, and executive.

If the Supreme Court continues to deny writs of certiorari for firearms ownership (i.e. “keep”) cases or carry (i.e. “bear”) cases, then they risk pushing the American citizenry into a corner. That is a lot like pushing a Grizzly Bear into a corner. It usually does not end well. If the courts dawdle too long, then the Law of Unintended Consequences may come into play.  – JWR

Note: Permission to repost this article is granted, as long as it is re-posted in full, with all links intact, and credit given to the author (James Wesley, Rawles) and to SurvivalBlog.com.

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