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.