Jamie G. McWilliam is a law clerk on the United States Court of Appeals for the Ninth Circuit. He holds a J.D. from Harvard Law School and a B.S. from Montana State University.
The Supreme Court in District of Columbia v. Heller, 54 U. S. 570 (2008), held that the Second Amendment protects at least an individual right to possess handguns in the home. In doing so, the Court first concluded that the Amendment protects those arms “in common use at the time,” then reasoned that because handguns were “the most popular weapon chosen by Americans” for the lawful purpose of self-defense, they were easily in common use. Fourteen years later, the Court took up New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1 (2022), in order to clarify how lower courts were to apply Heller. It explained that any regulation of conduct covered by the Amendment’s plain text must be justified by a showing that it is “consistent with the Nation’s historical tradition of firearm regulation.” But the common use standard itself was not a major part of the Bruen analysis—so how are courts to conceive of the standard today? Is it a limitation on the type of “arms” that are covered by the plain text? Or is it part of tradition that justifies regulations of unusual arms?
The intellectual history of the common use standard can provide the answer. The standard first raised its head in United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court rejected the argument that the National Firearms Act’s regulation of short-barreled shotguns violated the Second Amendment. The Court considered this nation’s militia tradition, concluding that, at the founding, the militia was comprised of ordinary citizens bearing “arms supplied by themselves and of the kind in common use at the time.” Because the Court was not under judicial notice that short-barreled shotguns were “any part of the ordinary military equipment,” it reasoned that they were not protected by the Amendment. In other words, the Court did not perform a textual analysis of the term “arms”; it examined the history of arms-bearing in this country and determined that uncommon or unordinary weapons were within the scope of acceptable regulation.
Heller expanded on this “common use” language, explaining that the “Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” In reaching this conclusion, the Court relied on Miller but also examined the historical record and concluded that the common use standard was supported by “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Again, the standard was justified by an explicit reference to our nation’s historical tradition.
Turning now to Bruen, although the Court called the lower courts’ previous two-step test “one step too many,” in practice it too laid forth a two-step framework. At step one, it asks whether “the Second Amendment’s plain text covers an individual’s conduct.” If so, it asks whether a historical tradition of firearm regulation nonetheless justifies regulating that conduct.
Many courts—at both the district and appellate level—have concluded that the common use standard is a textual limitation. But the Supreme Court has already explained what the text means. In Heller, the Court acknowledged that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” So the “plain text” of the Amendment—the only consideration at Bruen’s step one—covers all bearable arms, not just those in common use.
But the Court in Heller then examined this nation’s historical tradition of arms regulation and concluded that there is a tradition of regulating dangerous and unusual weapons. Conversely, weapons in common use are protected. Bruenconfirmed in its own historical analysis that there is a tradition of regulating dangerous and unusual weapons, and that the common use standard has its intellectual roots in that tradition. In other words, both Heller and Bruen are clear that the common use standard is derived from this nation’s historical tradition.
So taking Heller and Bruen at face value, Bruen’s first step involves only the Second Amendment’s plain text—whether the words themselves cover the regulated conduct. “Arms” has its plain meaning: all bearable weapons. The first step is not about whether a regulation is valid, but only whether the regulated conduct comes within the scope of the Second Amendment’s text in the first place. Said a different way, the first step weeds out irrelevant claims—a police seizure of a vehicle, for example, is not a prima facie violation of the Second Amendment because a car is not understood to be an “arm.” Once the regulated conduct is recognized as covered by the plain text of the amendment, our history informs whether the regulation is lawful in Bruen’s second step. One such historical tradition that has already been recognized by the Supreme Court is that of regulating dangerous and unusual weapons, and an arms regulation is constitutional only if it regulates those weapons not in common use today.
This is what Bruen meant when it described the test as “rooted in the Second Amendment’s text, as informed by history”: step one is purely textual, and step two justifies a regulation by examining history. Any approach that incorporates history into step one renders step two superfluous. If “arm” textually means only those weapons in common use, then there is no reason to even examine the tradition of regulating dangerous and unusual weapons. “Arms” means “arms.” But history tells us arms not in common use today can be regulated.
This is not a nitpicking distinction. Courts have generally interpreted Bruen as placing the burden on the challenger of the regulation at step one, while the government bears the burden of producing historical analogues at step two. So courts that incorporate history at step one essentially circumvent the government’s burden. And in the context of arms regulation, the common use standard is only dispositive—as it was in Heller—if it is placed at step two. If “arms” means only those arms in common use today, then satisfying the standard merely shifts the burden to the government, where it can produce other historical traditions that might justify the regulation.
There is much confusion among the courts as to the proper role of the common use standard after Bruen. Many courts, in a panic to uphold arms regulations in the tidal wave of challenges that followed Bruen, apply it as a restriction on the plain text of the Amendment, allowing them to avoid a historical analysis altogether and shift the burden of proof from the government to the challenger. Some judges think that the standard somehow both informs the meaning of “arms” and answers the historical question. But as the standards’ intellectual history makes clear, it is derived from our nation’s history and tradition of firearm regulation—and that history only becomes relevant at Bruen’s step two, where the government bears the burden of producing historical analogues.
This post is based on an essay published last year in the Harvard Journal of Law & Public Policy Per Curiam.
