This is a longer article, but well worth taking the time to read. Mark W. Smith has a very approachable style and does an excellent job explaining important Second Amendment cases in a way non-lawyers can easily understand.
Introduction
In the year since New York State Rifle & Pistol Association v. Bruen[2] was decided, a line of argument has developed in the lower courts that effectively seeks to relitigate and nullify District of Columbia v. Heller.[3]
Heller established the constitutional test to determine what arms are protected by the Second Amendment. After examining the text of the Second Amendment, as illuminated by history, Heller determined that bearable arms that are “in common use” today are constitutionally protected and cannot be banned.[4]
To circumvent Heller, government litigants, their amici, and some lower courts have seized upon a single sentence in Bruen that states that “[w]hile the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”[5] Gun-control proponents claim that improvements in firearms technology, such as the development of semiautomatic weapons, are “dramatic technological changes” and that mass shootings are “unprecedented societal concerns” that did not exist at the Founding. According to some courts, these changes and concerns justify bans on so-called “assault weapons” and what are mislabeled “large capacity magazines.”[6]
That contention is wrong because Heller’s “in common use” test governs in all arms-ban cases including “assault weapon” bans, “large capacity magazine” bans, and non-roster handgun bans. The language from Bruen regarding technological changes and societal concerns is not a legal test that governs decisions either in arms-ban cases or in non-arms-ban cases. It is part of a description of the methodology that Bruen lays out for lower courts in deciding “other cases” not governed by Heller’s “in common use” test or by Bruen’s actual decision regarding restrictive, discretionary licensing systems regulating the public carry of arms.
By Mark W. Smith
