The Common Use Standard in Maryland

So while we were talking about other things, a judge in Maryland upheld the state's "assault weapons" ban. The NRA is not pleased. Their argument is interesting in places.
In Heller, the Supreme Court further suggested that the Second Amendment protects the right to keep and bear only such arms that are not “dangerous and unusual.” Of course, “dangerous and unusual” weapon statutes, which date back to England before the founding of the United States, have historically prohibited dangerous and unusual conduct with a weapon, rather than the weapon itself. For example, in one ancient case, it was deemed “dangerous and unusual” to ride a horse through a courthouse at night while drunk, while riding a horse under more conventional circumstances was perfectly lawful.

Judge Blake, like other gun control supporters, instead interpreted “dangerous” and “unusual” according to their dictionary definitions.
Well, OK, although it's not clear to me that the SCOTUS didn't also interpret the language according to the dictionary definitions here. The judge is bound by how they read it -- alas! -- rather than by the ancient construction. I yield to none in my desire that the old liberty by law should be upheld in the old way, but we have to work with the very flawed institutions we have.

Of greater concern to me is this 'common use' standard.
She concluded, saying “Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual. First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.”
Now the NRA's argument is that, proportionately, these are among the most common firearms in the country -- a claim that is doubtless correct. Slate magazine's best effort put the number of AR-15 style rifles at a bit over three million, which is about 1% of all firearms in America -- not bad for a single design! Since "assault weapons" is very broadly defined, the judge's numbers almost certainly don't hold up (except perhaps in Maryland itself, where the weapons have been largely illegal).

But what does it mean to say that a weapon is protected if and only if it is in 'common use'? Well, technologies change. The weapons of the future are not at all in common use now, because they haven't been invented yet. Thus, this standard would seem to suggest that there's no problem with banning all weapons that aren't in current production -- any sort of weapon, that is, that has not yet been designed is not protected by the 2nd Amendment because it is not in common use.

My understanding of the 'common use' standard is not that it should be pointed at current common use among civilian owners, but rather that it is pointed at the kinds of weapons that are in common use should citizens be called up to perform their militia function. That was certainly what the Miller ruling seemed to say, too: the reason it found that sawed-off shotguns were unprotected by the 2nd Amendment was that they weren't the kind of a weapon that you might be called upon to use in militia service. (The court was doubtless wrong about that, as demonstrated by the popularity of 'trench guns' in the most recent major war to that ruling -- still, wrong or not, that was their standard.)

By this token, the AR-15 is currently the most properly protected of all firearms. But the standard will change, as the technology changes.

All the same, I'm not too inclined to be bothered by the ruling. While I think the inherent right of self-defense is a human right that must be protected always and everywhere, I tend to think it's at least as important to the health of the Republic to allow different communities to have different rules -- the old Federalism, in other words. Maryland should be able to construct its militia as it likes, provided that it doesn't try to ban the possession or carrying of the tools of self-defense entirely or outright. If we are going to keep this country together at all, we have to make room for those who disagree with us.

18 comments:

  1. "we have to make room for those who disagree with us."

    The zero-th amendment: Any citizen has the right to be wrong.

    (US Courts have consistantly held that this right does NOT include the right to DO wrong...)

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  2. Well, it may not; but when enough citizens are wrong that they can sway a whole state government to adopt their standard, there has to be at least a limited degree in which they have leeway. Otherwise, we don't need a democracy at all, let alone Federalism. We just need a rule-book assigned to us by those wiser than we, who can ensure we are held to the "right" standards.

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  3. Ymar Sakar10:54 AM

    So American courts allow Hussein to supply AQ in Libya with artillery and anti air weapons, while giving Syria training in demolitions, and American citizens get... what exactly?

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  4. raven2:01 PM

    This has to be the stupidest argument ever.

    All weapons are dangerous by definition.

    Or as Jeff Cooper put it, " of course guns are dangerous, if they were not, they would be useless."

    "unusual" -so logically a Webley-Fosberry automatic revolver or a 17th century flintlock is more to be feared than a Glock, in common usage by half the planet?

    The very basis of their argument should have an entry in the annals of stupidity. It makes me sick to think someone with such poor reasoning skills could become a judge. The average fencepost has a higher intellect.

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  5. Ymar Sakar2:28 PM

    Zombies don't need higher intellect. All they need is to Obey Authority and do what they are told to do.

    The police have said, "the best way to avoid violence is just to do what I tell you to do". Or something like that. Assistant professor to Homeland security was it...

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  6. Ymar Sakar2:31 PM

    Also AR 15s look crazy now. They're as modifiable as muscle cars with the nox and air foils now. They don't look normal, but can be configured for a lot of different things.

    I'm not sure if they always looked like that or if the various rail systems made it more user customizable and costs went down on mods.

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  7. I keep reading the 2nd Amendment and no matter how many times I do, I can find no reference to "common use" or to "dangerous and unusual." Indeed, I cannot undertake to lay my finger on that part of the Amendment that allows the government to dictate our purpose in having any weapon.

    Never mind that the security of a free State is unavailable unless each of the citizens of that State also is secure. Which is to say, armed to his satisfaction. Which is to say, with whatever weapon(s) suits his own purpose or fancy.

    Blake's own argument seems plainly at odds with Heller and McDonald; naif that I am, I expect her to be overturned on appeal.

    Eric Hines

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  8. " I tend to think it's at least as important to the health of the Republic to allow different communities to have different rules -- the old Federalism,"

    Isn't that kinda what we tried with the Articles of Confederation? Didn't that fail miserably?

    ...and what Raven said. A thousand times.

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  9. Well, it's kinda what we tried with the Tenth Amendment. Whether that's failed miserably or still has a chance of succeeding is an open question. If it fails, though, and we have to have one single standard for all these hot-button moral issues for the whole country -- if that's the case, it's America that is going to fail. Hard and ugly.

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  10. Ymar Sakar9:07 PM

    America's problem back then was lack of unity, so federalism solved the weak point.

    America's problem these days is too much federalized centralized authoritarian totalitarian tyranny. So the solution to the weakness is to compensate with the opposite.

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  11. Ymar Sakar9:08 PM

    "Hard and ugly."

    No justice, no peace.

    No justice, time to burn.

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  12. Isn't that kinda what we tried with the Articles of Confederation? Didn't that fail miserably?

    The Articles failed because all it produced was a conclave of diplomats from independent, sovereign nation-states. Even a federal government needs some teeth.

    The tricks are two: find the right balance between teeth and essential liberty, and then actively maintain that balance against the inevitable human drift. That balance is, after all, an unstable equilibrium. The thing working in our favor is that it's initially a shallow slope off the equilibrium; all that's required to keep the balance is, first, eternal vigilance and on occasion, the blood of patriots and tyrants.

    Eric Hines

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  13. Well, the Tenth Amendment has failed, insofar as it has, because the Federal government has too much teeth relative to the states.

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  14. At this point, there's drift. I don't agree "failed" just yet.

    There is a series of elections over the next few years.

    Eric Hines

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  15. Is it that the Federal government has too much teeth, or that our states now have too little appetite, and unkept dentition?

    Does anyone expect much from their state government anymore? Don't they all look to Uncle Sugar, er, Sam first instead of last now?

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  16. "There is a series of elections over the next few years."


    Who will count the votes?

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  17. Ymar Sakar11:42 AM

    The Democrat party can produce 20 million fake votes. Although they can't concentrate it all in one area, like Florida or Chicago.

    By breaking the Mexican US border, they will be able to open their supply lines much wider so they can begin mobilizing against any particular area.

    Elections are meaningless when people either ignore or fail to counter that Leftist strategic issue.

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