In Common Use!
In A Win for the 2nd?, I wrote about how the Fourth Circuit court has ordered the parties to brief them on when "common use" comes into play under Bruen.
Some comments talk about "in common use" being an issue for us. It is not.
Consider a startup company that introduces a new shell. For sake of argument, let's call it the "Worm Breath." When this shell is fired out of a standard shotgun, it puts out a visible flame 20 yards long.
The rogue, infringing states leap into action and ban "Worm Breath." The legislative findings are that it is extremely dangerous and has no reason to be in the hands of civilians.
A 2A group finds a front person and sues.
Under Bruen the 2A group has to prove that "Worm Breath" is an "arm" under the plain text of the Second Amendment and that a member wishes to keep or bear it.
That is it. There is nothing in that requirement that touches on "common use".
The state then has the burden of proving a history and tradition of banning things like "worm breath".
They immediately talk about how this is a
unprecedented societal concerns or dramatic technological changes
[xCite item="75DAVPP7" pos=0 pos=0] and a
more nuanced approach
[xCite item="75DAVPP7" pos=1] is required.
That is, if they are in an honest court. If, instead, they are in a dishonest court, they claim that "worm breath" is not in common use and can be banned.
It doesn't work that way. "In common use" is of use only to us. Never to the state.
The Heller court did the analysis of history and tradition and found that there is no history and no tradition of banning arms that are in common use.
In order for the plaintiffs to prevail in an arms ban case, they only need to say, "It is in common use." if there are more than 200,000 of that arm in use.
If the manufacture of "Worm Breath" can show that more than 200,000 rounds have been sold, then "Worm Breath" is in common use and cannot be banned.
What if the manufacture cannot prove to the court that they have sold more than 200,000 rounds? Nothing happens.
The state still has the burden of proving that there is a history and tradition of regulations banning "arms" of this type.
"In common use" is a one-way ratchet, in our favor.
Yes, the state wants to make it go the other direction. Yes, the state wants the burden of proving "in common use" to rest on the plaintiffs. Yes, the state wants to negate the meaning.
What the state wants and what the Supreme Court has said are two extremely diverse things.