Commonality Redux

Many Second Amendment questions remained open after Heller. The Court clarified that the right to keep and bear arms guarantees a private, individual right to have a handgun at home for purposes like self-defense, but it left open a host of questions about where people can take their weapons, what weapons can be restricted, and which persons can be precluded from exercising the right altogether. For example, it left open where one can carry their arms in public, including what restrictions a state can put on public carry permits and how a state can limit guns from specific places. The Court shed little light on what types of firearms can be barred to individuals (like weapons categorized as assault weapons or high-capacity magazines) and what non-firearm weapons enjoy constitutional protection. And it didn’t resolve questions about whether particular individuals, like noncitizens or those subject to domestic violence restraining orders, can be constitutionally prohibited from possessing arms.

In the case pending before it right now—New York State Rifle & Pistol Association v. Bruen—the Court is likely to answer at least some of the where questions, though an important set of questions about sensitive places will likely remain. By contrast, the Court has shown almost no interest in who questions, denying cert in all these types of questions that reach the Court, not even holding such petitions pending other cases it has taken (NYSRPA and Bruen). But the what questions appear to be on deck.

Of the two Second Amendment cert petitions the Court is holding for Bruen, one directly confronts this question, while the other is about another aspect of public carry. That what case—Association of New Jersey Rifle & Pistol Clubs v. Grewal—challenges New Jersey’s ban on magazines that hold more than 10 rounds of ammunition. Another new cert petition that has not yet completed briefing is Bianchi v. Frosh, a challenge to Maryland’s ban on select semi-automatic firearms that it classifies as assault weapons. The Fourth Circuit upheld the law in 2017 in Kolbe v. Hogan on the ground that the regulated assault weapons fall outside the scope of the Second Amendment. Bianchi challenges that conclusion and the lower courts’ broader approach to deciphering which weapons get constitutional protection.

In an amicus brief submitted at the certiorari stage, several Second Amendment experts and organizations (including several scholars I call friends, even though we don’t always see eye-to-eye) argue in favor of granting cert and against the lower court approaches. The brief addresses at length the signers’ understanding of the best way to flesh out the “common use” test. That test derives from Heller’s gloss on the Supreme Court’s 1939 decision in United States v. Miller. The Miller case upheld the National Firearms Act against a Second Amendment challenge, declaring short-barrel shotguns unprotected arms. In the course of discussing the purpose and scope of the Second Amendment, the unanimous Miller Court said:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (emphasis added)

After quoting some of this language, Heller says, “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” But that was not all. Heller also leveraged Miller to create another caveat to its finding of an individual right:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. (citations omitted)

Lower courts have had some difficulty deciphering just what this language covers. The amicus brief argues that Heller creates a presumption that all bearable arms are protected, which can be rebutted by showing that an arm is both dangerous and unusual. It then includes a variety of metrics (noting lower court disagreement among which to use) for deciding commonality: total number of weapons, the number of jurisdictions in which they can be lawfully possessed, and what percentage of the total “arms stock” the regulated weapon makes up. It argues that all these factors support a finding of commonality for the firearms designated as assault weapons under Maryland law.

The brief—as appropriate for an advocacy document—takes the Court’s common use test as a given. But there are serious conceptual issues with the test as formulated by the Heller Court and employed by the advocates, including the brief writers. For one, as Judge Frank Easterbook noted in a Seventh Circuit case, “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.” So commonality—and thus constitutionality—seems dependent on how quickly states act to regulate, which is an odd way to think about how constitutional rights work. (See also Justice Breyer’s similar point in Heller: “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”).

Another related difficulty is the question of timing. When is commonality measured? If a particular type of weapon is popular today, a ban on its possession is unconstitutional. But that leaves open the possibility that the exact same ban might have been constitutional in the past when the particular weapon was not commonly possessed—or could possibly be constitutional again the future if the weapon falls out of favor. In this context, we could echo Justice Scalia’s question to those asserting a right to same-sex marriage: “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” Exasperated by the lack of a date, Justice Scalia emphasized: “It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.” So, to repurpose the question for originalist Second Amendment adherents, when did it become unconstitutional to ban AR-15s? 1791? 1868? 1881, when the brief suggests self-loading technology at heart of semiautomatics was perfected: “All semiautomatics ‘descend from’ the models of the1880s”? When AR-15s were first invented? When they reached the quantum of commonality?

Next, consider the issues of classification. The brief does address this question, arguing that legislatures cannot ban “classes” of arms that are in common use. And it states that lower courts—including the Fourth Circuit—are improperly slicing up classes of arms into small subgroups. Instead, it argues, “the Supreme Court performs the commonality analysis at the ‘sort,’ ‘kind,’ or ‘class’ level,” and so “lower courts should not have upheld prohibitions of a subclass (or subsort or subkind) of rifles.” Why “rifles” is the class rather than “long guns” is not entirely clear, but the signers do specify that “handguns” is how they understand the class of arms designed to be held with one hand and its subtypes (rather than their own classes) are revolvers and semi-automatic pistols.

Finally, consider the ambiguity in the commonality question. Is commonality a question of possession, so that a sufficiently commonly owned weapon is absolutely protected, or is it about use, so that a weapon has to be commonly used in some manner before the designation applies? And if the latter, which uses qualify? Only those that constitute uses protected by the Second Amendment or does any lawful use qualify? (The amicus brief argues for the latter.) Does carrying constitute use or does use mean use as a weapon, such as use for target shooting, hunting, or brandished or discharged in self-defense? And why, apart from arguments about the best reading of Heller, would the choice among any of these alternative formulations be theoretically justified?

The Supreme Court is unlikely to answer any of these questions in Bruen, but it will need to address them when it confronts a what question—whether in ANJRPC or Bianchi or another case.