A Classic Legal Interpretation of the Second Amendment
By Jamie G. McWilliam
Publication Date
2024
Abstract
The few courts that have tried to place the common use standard within Bruen’s framework have been largely consistent, with a few exceptions. Many courts cite the common use standard as a limitation on the amendment’s plain text and what it “presumptively protects.”[4] A recent case from the Ninth Circuit, however, has recognized that considerations of usual-ness belong to an analysis of historical laws, [5] which occurs after determining that the particular weapon being regulated is indeed covered by the plain text of the Second Amendment.[6] For its part, the Supreme Court has consistently maintained that the common use standard arises from the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”[7] The Court in Bruen raised the common use standard in both the textual and historical steps, with relatively little language devoted to it in both instances. Yet the common use standard was born of history, not the text of the Second Amendment, and considerations of historical tradition arise at Bruen’s step two, not step one.
Recommended Citation
Jamie G. McWilliam, A Classic Legal Interpretation of the Second Amendment, 28 Tex. Rev. L. & Pol. 125 (2024).
