In Common Use Test

 Received via email:

David,

I'm a long time reader of your work, which is among the best out there on the subject. I know you get a lot of email so I will try to keep this brief.

I wanted to throw in my two cents on the 'in common use' test, since you speak of it frequently. I also follow Mark W. Smith quite closely, and my view on the topic is basically a restatement of what he says. Let me say, first, that I agree 1,000% with what you say about how this will be used against us. That being said, I think it is a fantastic test, if used as intended. All one has to do is look at the lower courts, though, to see how they will twist any test beyond recognition to achieve their goals. Like they say it's not the gun, it's the criminal, and it's not the test, it's the courts/grabbers.

So, SCOTUS laid down the text first, then historical tradition*** approach, as laid out in Heller and affirmed in Bruen. Is it a ban or restriction? The plain text of the 2A is implicated, move to step two, historical tradition. The burden shifts to the government to find historical analogs to said ban/restriction. You understand this as well as anyone on the planet. Where does the 'in common use' test fit in, then?

SCOTUS did the historical analysis to some extent in Heller for arms that are in common use for any lawful purpose. There is no historical tradition for banning such arms, hence they can't be banned. Here's how it is supposed to work:

Is the plain text of the 2A implicated? If no, case over. If yes, proceed to the next step.

Is it in common use for lawful purposes? If yes, case closed, can't ban/restrict it, go home. If no, proceed to the next step.

Burden shifts to the government to show an historical tradition of such a ban/restriction.

This is a great step that stops many cases from going into the historical tradition phase because that work has already been done by SCOTUS in Heller for things in common use for lawful purposes. If we got rid of this step then all in common use for lawful purpose challenges would have to proceed to the historical tradition phase instead of being done right there. This test does not, if applied as it was intended, in any way say that something that is not in common use is able to be banned/restricted, hence eliminating new technology and so on. That would only be the conclusion when the entire process is twisted, as they do now with idiotic nonsense like the nonexistent 'military use' test, or the 'useful for military purposes' test, and on and on. There are no such tests, and there is no such test as 'if it's not in common use for lawful purposes it can then be banned/restricted'. It only puts you right where you would be if that test didn't exist, at the 'historical tradition' phase.

So, although I agree unequivocally with you that this is going to be and is being twisted to hurt us, so is every aspect of everything (SCOTUS Bruen footnote on permitting schemes, anyone?, and endless other dicta). I don't see the point of eliminating this very good test because they will twist it like everything else they twist.

My main reason for writing this is to hopefully get a reply back on your thoughts on what I am saying. Outside of Mark I haven't heard anyone mention this at all. I am sure you have thought of this aspect but have chosen not to write about it. I would love to understand that. Thanks for reading this and keep up the good work, you really are the best of the best at what you do.

*** I use the term 'historical tradition' instead of 'history and tradition' for the same reason Mark does, to not have people get confused (as some courts/grabbers have) that that is two separate tests/things, 'history' and then 'tradition'. I am not a 'fanboy' of Mark who just accepts everything he says, but some of his work is top notch in my opinion, and I've been at this as long as you have.

Jim

Addendum 

David,

I wanted to clarify one thing. When I list the steps below:

Is the plain text of the 2A implicated? If no, case over. If yes, proceed to the next step.

Is it in common use for lawful purposes? If yes, case closed, can't ban/restrict it, go home. If no, proceed to the next step.

Burden shifts to the government to show an historical tradition of such a ban/restriction.

I made it sound like the burden doesn't shift to the government until the third step I listed. It shifts for step two i.e.the burden is on the government to show it is not in common use for any lawful purpose, not on the gun owner to show it is in common use for lawful purposes. Some grabbers have tried to shift that burden to 'the people'. Sorry for not putting that burden shift in step two where it belongs. I should have put that in step two and then said 'Burden is on the government' in step three. I was trying to keep it simple, but it's important to understand this, or it will be the first thing the grabbers attack.

Jim