The Second Amendment: What "Arms" are Protected?

Transcription

1 From the SelectedWorks of James M Ramey July 19, 2012 The Second Amendment: What "Arms" are Protected? James M Ramey Available at:

2 The Second Amendment: What Arms are Protected? By: James M. Ramey Knudsen, Berkheimer, Richardson & Endacott, LLP July 19, 2012 Following the United States Supreme Court s decision in District of Columbia v Heller, 1 there is still a significant amount of ambiguity as to what types of weapons constitute arms under the Second Amendment. This paper will first attempt to determine what guidance the Court itself has provided with respect to which arms are protected by the Second Amendment. Then we will address some of the weaknesses, ambiguities, and problem areas posed by the current framework for addressing what is a protected arm. Finally, this paper will attempt to put forth some arguments practitioners attempting to overturn an assault weapon ban would likely make based on current Second Amendment law and whether those arguments will be successful. In points throughout this paper, suggestions will be made as to arguments practitioners would be well served making when arguing over whether a particular firearm is protected under the Second Amendment. I. The Heller decision. The Second Amendment states, A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. 2 Throughout our nation s history there has been a great deal of debate over topics such as whether the Second Amendment applied only to arms used by an organized militia, or whether the Second Amendment only protects weapons used for hunting. 1 District of Columbia v Heller, 554 U.S. 570 (2008). 2 U.S. Const. amend. II. 1

3 In Heller, Dick Anthony Heller challenged a District of Columbia statute which totally banned handgun possession in the home and required that any firearm kept in the home be disassembled or locked by a trigger lock at all times so that it would be unusable. 3 In applying the rules set forth below, the Court found that a complete prohibition on the use of handguns in the home was invalid due to the fact that, the handgun ban amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose [self-defense in the home] and handguns are the most popular weapon chosen by Americans for self-defense in the home. 4 The Court also held that the trigger lock or disassembly requirement was unconstitutional because it would make it impossible for citizens to use their firearms for the core lawful purpose of self-defense. 5 The individual right to bear arms has been incorporated against the states by the McDonald opinion. The McDonald opinion does not seem to change any of the rules or holdings of the Heller opinion other than applying the opinion and the Second Amendment to the states. 6 As a result, this paper will concentrate mostly on the Heller opinion. Neither Heller nor McDonald establishes a level of scrutiny to be applied to firearms regulations; however that does really affect the present analysis. No level of scrutiny will be applied to a firearm regulation if it is determined that the firearm being banned is not a protected arm under the Second Amendment. Thus, this paper will concentrate on what makes a firearm a protected arm under the Second Amendment. A. What are the key rules that can be gleaned from the Heller decision for application in future cases? 3 Heller, 554 U.S. at * Id. at * The lawful purpose described was self-defense in the home. 5 Id. at * McDonald v City of Chicago, Illinois, 130 S. Ct (2010). 2

4 While the Heller decision may leave many questions unanswered, it does establish a few key points. First and foremost, at the very least, it is now clear that the Second Amendment protects an individual right to keep and bear arms for lawful purposes, specifically the core lawful purpose 7 of self-defense in the home. 8 This is the most important aspect of Heller because it does away with some pre-heller notions that the Second Amendment secured only a collective, rather than an individual, right to bear arms and other limitations on arms such as the sporting use test and militia use tests. 9 Despite this strong assertion of an individual right to bear arms for self-defense, the Court was quick to limit the scope of these protections. First of all, the Court stated that its decision should not cast doubt on long standing prohibitions such as laws prohibiting firearms possession by felons and the mentally ill, 10 laws prohibiting carrying firearms in sensitive places, and laws imposing conditions on the sale of arms. 11 It is important to note that the Court did not provide an exhaustive list of valid longstanding prohibitions; rather these are simply examples of presumptively lawful regulatory measures. 12 For the purposes of this paper, the key limitation on the individual right secured in Heller, is found when the Court specifically stated, the right was not a right to keep 7 Id. at * Id. At* 636; Andrew R. Gould, The Hidden Second Amendment Framework Within District of Columbia v Heller, 62 Vand. L. Rev. 1535, 1554 (2009); Nicholas J. Johnson, Symposium: Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons and the Attitudinalist Critique, 60 Hastings L.J. 1285, 1285 (2009); Jason Racine, Symposium: Meeting the Needs of Persons with Mental Illness: Best Practices and Remaining Issues in the Law: What the Hell[er]? The Fine Print Standard of Review Under Heller, 29 N. Ill. U. L. Rev. 605, 615 (2009). 9 Gould, supra note 8 at Heller, 554 U.S. at * Id. 12 Id. at n.26. 3

5 and carry any weapon whatsoever 13 This begs the question: if not any weapon whatsoever, then which weapons are protected arms under the Second Amendment? B. What guidance does the Heller opinion provide as to which weapons constitute arms under the Second Amendment and are thus subject to Second Amendment protection? Heller provides some categorical rules as to what constitutes a protected arm under the Second Amendment. Specifically, the Second Amendment protects against a blanket ban on handgun possession in the home. 14 It also invalidates government requirements that firearms be rendered inoperable in the home. 15 The state is permitted to have non-arbitrary licensing requirements for firearms ownership. 16 Additionally, M-16 rifles and the like 17 and short barreled shotguns 18 may be banned without running afoul of the Second Amendment. For weapons not covered under these categorical rules (seemingly every weapon falling between a handgun and a fully automatic machine gun or short barreled shotgun) the line drawn by the court becomes much less clear. The key language in Heller that determines which weapons outside these categorical rules are protected is, the sorts of weapons protected were those in common use at the time. 19 This will be referred to throughout as the common use test. As will be discussed later, the common use test leaves much to be desired as far as practical application goes. 20 However, the Heller 13 Id. at * Id. at * Id. at * Id. at **631, Id. at * Id. at * Id. at *627; Nicholas J. Johnson, Article: Administering the Second Amendment: Law, Politics, and Taxonomy, 50 Santa Clara L. Rev. 1263, 1265 (2010); Sarah Perkins, District of Columbia V. Heller: The Second Amendment Shoots One Down, 70 La. L. Rev. 1061, 1069 (2010). 20 John Zulkey, Note: The Obsolete Second Amendment: How Advances in Arms Technology Have Made The Prefatory Clause Incompatible with Public Policy, 2010 U. Ill. J.L. Tech. & Pol y 213, 228 (2010); 4

6 opinion does provide a small amount of guidance as to what the common use test actually means in the form of its reasoning behind the test. First of all, the court stated that the limitation posed by the protection for weapons in common use at the time was supported by the historical prohibitions on carrying dangerous and unusual weapons. 21 Additionally, while interpreting the Miller 22 case, which is the case that held that short-barreled shotguns are not protected, the Heller Court stated, the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes, such as short barreled shotguns. 23 However, it is important to note that Miller was not overturned by Heller. In interpreting Miller, the Heller Court stated that the Miller Court s reasoning was due to the fact that short barreled shotguns were not typically possessed by law abiding citizens for lawful purposes. 24 Thus, this law abiding language is not a rule or holding from the Heller court, rather it is what the Heller court is interpreting Miller to mean. 25 The Heller court later goes on to say that the decision in Miller simply said that the weapons protected were those in common use at the time thus formulating the in common use rule. It is not completely clear which of these two rationales is most important. The law abiding citizen language appears in the portion of the Heller opinion where the court is Kristen L. DeBoise, Casenote: Constitutional Law-The Second Amendment-D.C. Statute Prohibiting The Possession of a Useable Handgun in the Home and Restricting Handgun Possession is Unconstitutional, 39 Cumb. L. Rev. 323, 339 ( ); Johnson, supra note 19 at 1265; Johnson, supra note 8 at 1285; Racine, supra note 8 at Heller, 554 U.S. at * United States v Miller, 307 U.S. 174 (1939) U.S. at * Id. at * Nelson Lund, Symposium: The Second Amendment and the Right to Bear Arms After D.C. V. Heller: The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1365 (2009); Racine, supra note 8 at

7 analyzing past precedent, specifically, the Miller case. In contrast, the dangerous and unusual language is the sentence that directly follows the in common use rule 26 and seems to support it. The placement and use of each of these rationales may lend some weight to the proposition that whether a weapon is dangerous and unusual is the key to determine whether a weapon is an arm and thus entitled to Second Amendment protection. At least one commentator believes that the Heller court approved and modified Miller by adopting the common use test. 27 Another takes the common use test to simply mean weapons typically possessed by law abiding citizens for lawful purposes. 28 Other commentators and a couple lower courts take a hybrid approach using both the law abiding language and the dangerous and unusual language either simultaneously to describe the in common use test or within a couple paragraphs of each other. 29 Most commentators place importance on the dangerous and unusual language 30 as opposed to the law abiding citizen language. However, I think this is a mistake and the hybrid 26 Id. at * Michael P. O shea, The Right to Defensive Arms After District of Columbia v Heller, 111 W. VA. L. Rev. 349, 381 (2009). 28 Mark Tushnet, Symposium: the Second Amendment after District of Columbia v Heller, 13 Lewis & Clark L. Rev. 419, 427 (2009). 29 Heller v District of Columbia, 698 F. Supp. 2d 179, 193 (D.C. 2010) ( Heller II ); People v James, 174 Cal. App. 4th 662, 676 (Cal. Ct. App. 2009); Craig S. Lerner and Nelson Lund, Symposium: Heller and Nonlethal Weapons, 60 Hastings L.J. 1387, (2009); Calvin Massey, Symposium: Second Amendment Decision Rules, 60 Hastings L.J. 1431, 1433 (2009); Eugene Volokh, 62 Stan. L. Rev. 199, Article: Nonlethal Self Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 219 (2009). 30 Gould, supra note 8 at ; Robert A. Levy, Essay on Heller: Second Amendment Redux: Scrutiny, Incorporation, and the Heller Paradox, 33 Harv. J.L. & Pub. Pol'y 203, 204 (2010); Lund, supra note 25 at 1366; Cass R. Sunstein, Comment: Second Amendment Minimalism: Heller as Griswold, 122 HArv. L. Rev. 246, 268 (2008); Mark Tushnet, Symposium: The Second Amendment and the Right to Bear Arms After D.C. v Heller: Permissible Gun Regulations After Heller: Speculation About Method and Outcomes, 56 UCLA L. Rev. 1425, 1439 (2009); Adam Winkler, Symposium: the Second Amendment and the Right to Bear Arms After D.C. v Heller: Heller s Catch-22, 56 UCLA L. Rev. 1551, 1560 (2009); Ian W. Henderson, Comment: Rights, Regulations, and Revolvers: Baltimore City s Complex Constitutional Challenge Following District of Columbia v Heller, 39 U. Balt. L. Rev. 423, 439 (2010), Volokh, infra note 33 at

8 approach is the correct approach. The Court s reasoning in declaring the challenged District of Columbia statute unconstitutional and protecting handguns in Heller also sheds some light on the meaning of the in common use rule. In Heller, following the Court s formulation of the in common use rule, the Court addressed the statute. In overturning the portion of the statute that banned handguns in the District, the Court stated, The handgun ban amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose. [self-defense in the home] and Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition on their use is invalid. 31 The Court itself seems to be applying both the unusual portion of the dangerous and unusual language and the law abiding citizen language in a type of hybrid approach. In its justification for holding that handguns cannot be banned without running afoul of the Second Amendment, the Court places particular significance on the popularity of handguns ( overwhelmingly chosen, most popular weapon chosen ). But it is not just stating that handguns are popular, it is stating that handguns are popular for the lawful purpose of self-defense. Nowhere in the opinion does the Court allude to the popularity of handguns without also alluding to their use in self-defense. Since the Court stated that self-defense is a lawful use of a weapon 32, the idea that handguns are both popular numerically and popular for a lawful use do not seem to have been lost on the Court. As previously mentioned, I am in the minority on this point. As Eugene Volokh points out, 31 Heller, 554 U.S. at * Id. at

9 Typical possessor vs is possession typical? It s not clear whether typically possessed by law-abiding citizens for lawful purposes requires that the typical possessor of the weapon be a law abiding citizen with lawful purposes, or that the possession of the weapon be typical (that is, common practice) The phrase is offered as an interpretation of [Miller] which supports the second definition, focusing on how typical possession is. 33 Ultimately, the argument over whether a hybrid or simply popularity based approach controls may be a moot point because, among other reasons, it is nearly impossible to accurately determine what a firearm is typically used for. 34 As can be seen, there is no clear answer as to what exactly the Court meant by the in common use rule. 35 Most of the commentators seem to place more emphasis on the dangerous and unusual language. However, as a practical matter, based on the Court s language in interpreting Miller and its reasoning behind nullifying the District of Columbia s handgun ban, it would be wise for practitioners to argue both that a weapon is neither dangerous and unusual and that it is the type of weapon typically possessed by law abiding citizens for lawful purposes. At the least, the law abiding citizens language probably ties in nicely when explaining that a particular weapon is not unusual and thus in common use or vice versa. As one can easily see, the Heller opinion provides a great deal of uncertainty when trying to determine what types of weapons, outside the categorical rules, are protected arms under the Second Amendment. 36 In addition to the difficulty in determining exactly what the Court meant with the in common use standard, there are several other challenges and difficult issues posed by the Heller opinion. 33 Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: an Analytical Framework and Research Agenda, 56 UCLA L. Rev. 1443, 1479 (2009). 34 Volokh, supra note 33 at See, infra pp Volokh, supra note Zulkey, supra note 20 at

10 II. What are some of the challenges and issues posed by the Heller opinion in relation to whether a particular weapon is a protected arm under the Second Amendment? While there are many issues and challenges posed by the Heller opinion, this paper will concentrate on a select few. Namely issues relating to whether a weapon passes the in common use test and the theoretical ability of lawmakers to dictate firearms innovation in the future under the in common use standard. A. Issues relating to whether a firearm will pass the in common use test. The in common use standard is not terribly clear and the Court has provided very little guidance as to what exactly needs to be satisfied in order for a weapon to be considered to be in common use. 37 As previously discussed, in dicta the Court hinted that applicable criteria for whether a weapon is or is not in common use includes both or either: whether the weapon is dangerous and unusual and whether the weapon is of the type typically possessed by law abiding citizens for lawful purposes. 38 Whatever the exact wording the Court prefers, based on the dangerous/unusual language, the law abiding citizen language, and the Court s popularity based reasoning for striking down the handgun ban statute in Heller, 39 it is clear that the popularity of a firearm among the applicable population has a profound impact on whether that firearm will be protected by the Second Amendment. 40 Since passing the common use test, at least currently, seems to be based mostly on popularity, this leads to several issues which will pose problems to courts and 37 Supra note Supra pp Id. 40 O shea, supra note 27 at ; Zulkey, supra note 20 at 228; Lund, supra note 25 at 1367; Johnson, supra note 8 at ; Lerner and Lund, supra note 29 at 1413; Tushnet, supra note 28 at ; Winkler, supra note 30 at 1560; Massey, supra note 29 at

11 practitioners due to the fact that the Court did not state 41 which population a weapon needs to be popular among, how popular a weapon must be before it is in common use and how broadly or narrowly a weapon can be classified. This lack of guidance and the resultant ambiguities it causes will likely make life very difficult for courts and practitioners alike in the years to come. i. Among which population must the weapon in question be in common use? Right off the bat there is a question of what the relevant population is when determining whether a weapon is in common use among that population. This is one of the few issues that seems to have an easy answer: the weapon must be in common use in American society, not on a jurisdiction by jurisdiction basis. If the population was merely the local jurisdiction at hand, the District of Columbia statute which was challenged in Heller would probably not have been struck down under the in common use standard. This is because handguns were almost certainly unusual among law abiding citizens in the District of Columbia for any lawful purpose due to the fact that handgun possession was illegal in the District and had been since Thus, at the time, handguns were uncommon in the District but common outside it 43 and since it was illegal to own a handgun within the District at the time Heller was decided nobody within the District could have lawfully owned a handgun. Despite this, the Court struck down the ban. This clearly establishes that a local or individual jurisdiction is not the population among which the courts will determine whether a weapon is in common use and thus a protected arm under the Second amendment. 41 Zulkey, supra note 20 at Lund, supra note 25 at Johnson, supra note 19 at

12 Additionally, a national standard seems to be the appropriate population for determining common use or unusualness due to the fact that the court specifically stated that the District of Columbia handgun ban was unconstitutional because handguns are overwhelmingly chosen by American society and handguns are the most popular weapon chosen by Americans for self-defense in the home. 44 Note that the Court said by American society and Americans seemingly as a whole, not by District of Columbia residents. Additionally, the apparent consensus among commentators is that a nation-wide standard applies. 45 Thus, both by the outcome of the decision itself, and due to the Court stating that handguns are popular among Americans, not residents of the District, the Court seems to have adopted a national standard as the population common use should be determined against. 46 ii. The Dangerousness Dilemma. As it stands now, the dangerous and unusual language is the primary language used when determining whether a weapon is a protected arm under the Second Amendment. The combination of Heller s reasoning from the law abiding citizen language, Heller s popularity based reasoning for striking down the District s handgun ban, and the overwhelming majority of commentators seems to put most of the weight on the unusual and typically possessed by law abiding citizens language while putting very little, if any, weight on dangerousness U.S. at * O shea, supra note 27 at 387; Zulkey, supra note 20 at ; Lund, supra note 25 at 1367; Johnson, supra note 19 at 1269; Johnson, supra note 8 at 1285, 1294; Tushnet, supra note 30 at 1440; Winkler, supra note 30 at Johnson, supra note 19 at Supra, note 38,

13 Four paragraphs after stating that the only firearms protected by the Second Amendment were those in common use as supported by the historical prohibition on dangerous and unusual weapons, the Heller Court overturned the District of Columbia handgun ban. 48 In overturning the District s handgun ban, the Court did not even mention the word dangerous. There was absolutely zero analysis of the dangerousness of handguns in the Heller opinion. The court merely stated handguns are the most popular weapon chosen by Americans 49 Furthermore, the Court did not provide any direction or explanation as to what makes one weapon more or less dangerous than any other. Thus the commentators seem to be well founded in not spending much time on the dangerous portion of the dangerous and unusual language because the Court doesn t seem to have done so either. While it may seem perplexing that the Court would formulate the in common use test stating it was supported by the historical prohibition on dangerous and unusual weapons and then not even mention dangerousness, this actually makes some sense. This makes sense because all firearms are dangerous. 50 Any gun can easily kill a person. The Heller II court seems to agree with this point. In analyzing some of the ambiguities inherent in the Heller opinion relating to the in common use standard, the U.S. District Court limits the importance of the dangerous language and emphasizes the importance of the unusual and law abiding language stating, This ambiguity makes less difference than one may think however, given the obvious point that all firearms can be dangerous. Therefore, the court interprets Heller to mean the Second Amendment confers a right of selfdefense using weapons that are commonly used and typically possessed by law-abiding citizens for lawful purposes, as opposed to weapons that are 48 Heller, 554 U.S. at * Id. at * Massey, supra note 29 at

14 not in common use, are not typically possessed by law abiding citizens for lawful purposes and are unusually dangerous. 51 Despite this, practitioners may be well advised to at least argue that a weapon they are trying to prevent from being banned is less dangerous than a standard handgun. To illustrate my point, I will use a hypothetical. Let s imagine that a particular state wants to ban antique muskets such as those used in the Revolutionary War. Let s also assume for the sake of this hypothetical that there are very few antique muskets in the country today outside of museums (a fair assumption) 52. Finally, let s assume that few people would use one of these muskets for the core right of self-defense in the home due to the weight, size, slow reload time, short range, poor reliability, and the limited effectiveness of the slow moving bullets they shoot. However, right around one hundred percent of the owners of these muskets would use them for the (most likely) lawful purpose of firearms collecting or perhaps historical battle reenactment. Under the current (infant) state of the law as it stands right now, the emphasis of a court s analysis would probably be on the rarity of these antique muskets. The state will have an extremely strong argument that these muskets are unusual and not typically possessed by law abiding citizens for lawful purposes due to their rarity. Thus, the state s argument would be that these muskets are not in common use. Based on the aforementioned language of Heller, the near consensus of the commentators, and some post-heller lower court decisions such as Heller II, the State will probably be able to 51 Heller II, 698 F. Supp at *193 n Massey, supra note 29 at

15 convince a court that antique muskets are not protected arms under the Second Amendment. 53 Despite this, a practitioner would be wise to argue that despite their rarity, antique muskets should be considered to be protected arms because while they are unusual, they are much less dangerous than handguns which are protected under Heller. As previously mentioned, the Court did not provide any criteria for what makes a firearm dangerous but a practitioner could argue that muskets are nearly impossible to conceal, they are not effective at long range, their bullets travel at a very low velocity and they have an extremely low rate of fire and thus, a musket is significantly less dangerous than a handgun. A policy argument could then be made that it makes little sense to protect a more dangerous firearm based simply on its popularity and not protect a comparatively safe firearm simply because it is not popular due to its rarity and cost. This argument probably would not work based on the current state of the law, but that doesn t mean that it is not worth making. Presumably, the Court said dangerous and unusual instead of just unusual for a reason. Of course, based on the current state of the law, a wise practitioner should make the aforementioned lack of dangerousness argument and also argue that while these muskets are not typically owned due to their low numbers, the few that are out there are owned almost entirely by law abiding citizens for the presumably lawful purpose of firearms collecting and the like. 54 This hypothetical shows a major problem with the current popularity based interpretations of Heller and the in common use test. It seems foolhardy to allow a modern handgun, which is a much more devastating weapon, to receive more 53 Supra, pp See, infra pp

16 constitutional protection than the much less dangerous musket simply because the safer weapon happens to be less popular in contemporary society. At least one commentator, Eugene Volokh seems to agree with me, Heller does limit Arms to weapons that are of the kind in common use and excludes weapons not typically possessed by lawabiding citizens for lawful purposes, such as short-barreled shotguns. Many state cases have used similar definitions this definition arose in cases involving weapons that were seen as unusually dangerous, not unusually safe. Heller in fact reasons that the limitation [to weapons of the kind in common use] is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons which suggests that weapons that are less dangerous than protected ones (though still unusual) should be outside the limitation and thus constitutionally protected. 55 A way to address this ambiguity would be to concentrate on whether a weapon is unreasonably dangerous instead of just dangerous. Weapons that are considered to be unreasonably dangerous should be weapons that pose an unreasonable risk of harm to the shooter, or society as a whole. Society as a whole being people who aren t intentionally shot at in self-defense (weapons with an increased chance of collateral damage). Concentration on whether a weapon is unreasonably dangerous would not provide protection to a grenade or bomb because these can just as easily kill the person trying to defend themselves, and a score of bystanders, neighbors, etc in one fell swoop. Additionally, machineguns would remain unprotected. Presumably, part of the reason Congress banned machineguns in 1934 was due to their fully automatic nature. By simply holding down the trigger, a shooter could fire a multitude of bullets almost instantly. It is very difficult to control a weapon firing that quickly since each bullet produces recoil. Each time there is recoil the barrel of the gun jumps upward. Thus, in 55 Volokh, supra note 29 at

17 all but the most experienced shooters hands, the 4 th or 5 th shot from a machine gun is often way off target. This type of uncontrollability makes a firearm unreasonably dangerous to society as a whole and thus it should not be protected. Semi-automatics, which seem to be protected arms under Heller do not have this problem because the time it takes to release and re-squeeze the trigger settles down the barrel of the firearm and forces a shooter to re-aim. Concentrating on banning weapons that are unreasonably dangerous or at least placing more importance on dangerousness will help prevent Second Amendment analysis from turning into a popularity contest. iii. How common must a weapon be before it is in common use? So far we have seen that the key inquiry as to whether a weapon is in common use depends primarily on its popularity ( unusual ), nation-wide, probably for lawful purposes, and to a much lesser extent on whether the weapon is dangerous. Thus, the main thrust of any argument over whether a weapon should or should not be a protected arm under the Second Amendment should revolve around its popularity. The question thus becomes, how popular is popular enough to be not unusual and/or typically possessed by law abiding citizens and therefore in common use? The Court has not enumerated how popular a weapon needs to be in order to be in common use. It is probably not the majority of Americans given that only one in eight Americans actually own a handgun. 56 When it struck down the District of Columbia handgun ban it merely stated that handguns were overwhelmingly chosen and the most popular weapon chosen. 57 It cited no authority or numbers backing up assertions Zulkey, supra note 20 at Heller, 554 U.S. at * Zulkey, supra note 20 at

18 It is not difficult to see why the Court did not provide much backing for its statement that handguns are the most popular home defense weapon in America. The fact of the matter is that there is not much information out there. As Eugene Volokh points out, Uncertainty about gun stocks. There are also no censuses of weapons. Surveys give us an approximate sense of how many households own guns generally, or handguns in particular, but they don t give us many more details than that. Nor does gun tracing data help, because there s no reason to think that traced guns are even close to a representative sample of all guns. Guns found at crime scenes are disproportionately likely to be traced, so guns that are more popular with law-abiding citizens will be underrepresented, as would more expensive guns that are less likely to get left behind. 59 The best information practitioners and courts have to go on right now is estimates and recent ATF manufacturing numbers. There is estimated to be between 250 and 300 million guns owned by Americans today. 60 Estimates from 1995 state that there are approximately 77 million handguns, 79 million rifles, and 66 million shotguns in civilian possession nationwide. 61 These are merely estimates; nobody knows the exact number of firearms in America. The numbers have certainly gone up since then. The bureau of Alcohol, Tobacco, and Firearms ( ATF ) has been keeping records of new firearms manufacturing and exports since In 1998 there were 960,365 semi-automatic handguns, 324,390 revolvers, 1,345,899 rifles, and 1,036,520 shotguns manufactured for 59 Volokh, supra note 33 at Johnson, supra note 8 at Marianne W. Zawitz, Guns Used in Crime, Bureau of Justice Statistics Selected Findings, July 1995 at 2, available at Lance Lindeen, Keep off the Grass!: An alternative Approach to the Gun Control Debate, 85 Ind. L.J. 1659, 1667 (2010). 62 Bureau of Alcohol, Tobacco, and Firearms, Annual Firearms Manufacturers and Export Report, available at 17

19 sale in the United States. 63 These numbers have been, for the most part, steadily increasing each year since In 2009, there were 1,868,258 semi-automatic handguns, 547,195 revolvers, 2,248,851 rifles, and 752,699 shotguns manufactured for sale in the United States. 64 While the information is relatively rough, if we are using a popularity based rubric, it is clear that if handguns cannot be banned as a broad category, a blanket ban on rifles and shotguns will probably not pass constitutional muster either due to the fact that the estimated numbers are similar for all three major firearms categories. Given this, the state may try to argue that even though these other categories of guns are numerically popular, they are typically owned by citizens who do not abide by the law, for unlawful purposes. This argument will probably not hold water due to the fact that handguns are used in a dramatically higher percentage of crimes than shotguns and rifles. 65 This helps to illustrate another major pitfall with the in common use test. If popularity or typically possessed 66 is the measure for unusualness or for the law abiding citizens language, the available numbers are a blunt instrument at best. If the typically possessed by law abiding citizens for lawful purposes language is read to concentrate on the typical possessor instead of only on popularity, the available numbers are not helpful at all. The fact of the matter is that there is no reliable information out there telling us whether a particular gun is used for crime, there is also no 63 Bureau of Alcohol, Tobacco and Firearms, Annual Firearms Manufacturing and Export Report, Year 1998, available at 64 Bureau of Alcohol, Tobacco and Firearms, Annual Firearms Manufacturing and Export Report, Year 2009, available at 65 Zawitz, supra note 61 at See, supra p

20 reliable information on what firearms the typical criminal prefers as opposed to the typical law abiding citizen. This lack of information may be part of the practical reasoning behind why most commentators concentrate more on popularity numbers as opposed to whether the firearm is typically possessed by law abiding citizens. 67 After all, if we don t even really know how many total guns there are in America, how can we expect to know whether their owners are law abiding citizens? As Eugene Volokh aptly notes, one can hardly do a survey of owners of a particular kind of gun, asking them whether they possess it for lawful purposes. 68 Analyzing how useful or common a weapon is for home defense is also not a good way to determine whether it is typically possessed by law abiding citizens for lawful purposes since gun collecting or target shooting are also popular lawful purposes. 69 While common convention may tell us that a particular gun is not useful for traditional lawful purposes, this doesn t necessarily mean that its typical possessor is a criminal or misusing the weapon (think back to the antique musket example). 70 Given the lack of reliable information on gun ownership, it would be nearly impossible to figure out whether a weapon is typically used by non-law abiding citizens for illegal purposes. Even if there was some way to accurately determine whether only criminals were buying a certain gun mostly to commit crimes, this wouldn t be terribly important. Criminals make up a tiny portion of the US population, 71 presumably, people, even criminals, spend more of their time doing legal activities than illegal ones. For example, 67 See, supra pp Volokh, supra note 33 at Id. 70 Id. 71 Heather C. West, Prison Inmates at Midyear 2009-Statistical Tables, (2010) available at (Approximately 2.3 million inmates in United States). Even if five times that number are violent, gun using criminals, that pales in comparison to 77 million handguns. 19

21 say we could somehow know for a fact that 100% of criminals bought handguns to commit their gun crimes, if there are 77 million handguns in America, the vast majority of handgun owners would still be law abiding citizens since most people are not criminals. Additionally, even if a firearm is purchased to commit a crime, the rest of the time, when the owner is not committing crimes with the gun, she would be using the gun for self-defense in the home or other lawful purposes since any gun sitting in a person s home is available for self-defense if need be. Thus, if a weapon is popularly owned, and not unusual, chances are, it is typically possessed by law abiding citizens for lawful purposes. Regardless of whether the answer to whether a weapon passes the in common use test relies mostly on simple popularity or on popularity among law abiding citizens Heller provides little guidance as to how popular a firearm needs to be before it is considered to be in common use. The opinion itself stated that handguns were protected due to their overwhelming popularity for home defense. 72 However, the Heller opinion did not state or even hint at how many weapons there needs to be in civilian possession or how many law abiding citizens need to own a weapon in order for it to pass the in common use test. 73 Although not mentioned by the Court, the only number we have is the estimated number of handguns, which is estimated to be around 77 million. It is unlikely that the Court intended to hold that any weapon with less than 77 million units in 72 Heller, 554 U.S. at Zulkey, supra note 20 at

22 civilian possession is not in common use (unless the majority of commentators are wasting their time analyzing whether certain firearms are constitutionally protected). 74 No matter what the exact language is behind the in common use standard, it is clear that the popularity of the firearm is extremely important. 75 Even if practitioners and courts were able to accurately determine the number of firearms in America and the nature of their owners, the Heller decision leaves courts and practitioners completely in the dark as to how popular the weapons they are arguing over have to be in order to pass the in common use test and be a protected arm under the Second Amendment. In other words, the Court leaves open the question of what yardstick the lower courts should use to gauge popularity. 76 Of course the state will have a much stronger case, and the law abiding citizen analysis becomes much more useful in a situation where there are much less than 77 million examples of the weapon in question. But as previously noted, there are, at minimum, over 66 million examples of every major category of firearm (shotgun, rifle, handgun) in America. Given this, how will the state be able to prevent law abiding citizens from owning a particular weapon since most firearms fall into one of these three presumably protected categories? The answer depends on how narrowly the state is able to categorize a weapon. iv. The problematic ability of the state to categorize a weapon out of being in common use. 74 Michael P. O Shea, Symposium: District of Columbia v Heller: Federalism and the Implementation of the Right to Arms, 59 Syracuse L. Rev. 201, (2008); Johnson, supra note 19 at ; Johnson, supra note 8 at ; Volokh, supra note 33 at ; Tushnet, supra note 30 at Tushnet, supra note 30 at 1440, ( a weapon might be unusual and (if dangerous) subject to a ban consistent with the Second amendment if it was not in wide enough use when the ban was adopted. ). 76 Zulkey, supra note 20 at 228; see also, Racine, supra note 8 at 629; Johnson, supra note 8 at 1286 ( Heller provides no obvious standard for determining whether some guns and some circumstances get more protection than others ). 21

23 As we have seen, despite the fact that we do not know how popular a weapon must be in order to pass the in common use test and thus be a protected arm under the Second Amendment, it is clear that the state will almost certainly be unsuccessful in banning rifles, shotguns, or handguns altogether since 66-plus million guns is probably not unusual nor will the state be able to show that these weapons are not typically owned by law abiding citizens for lawful purposes. Thus, the state s best bet is to simply paint with a more narrow brush in its gun bans due to the fact that how common a weapon is depends on how specifically it is defined. 77 The more narrowly a weapon is defined, the less common it will be. 78 This point is probably best established by use of an example. We know that the state cannot constitutionally impose a blanket ban on handguns. This is due to their overwhelming popularity 79 presumably since there are at least 77 million handguns in America. 80 Thus, if the state were trying to lower the number of handguns it must categorize more narrowly in order to whittle down the supply numbers and the number of owners of that particular category of firearm because, Handguns are in common use, but particular brands of handguns are less common, and some are uncommon, simply because they come from small companies or are of unusual caliber or design. 81 Thus, the state would be better served trying to narrow the ban to semi-automatic handguns. However, these may be still in common use. If the ATF manufacturing numbers from recent years are indicative of nationwide numbers, then a very large 77 Volokh, supra note 33 at Volokh, supra note 33 at 1479; Johnson, supra note 19 at Heller, 554 U.S. at * See, supra pp Volokh, supra note 33 at

24 portion of handguns nationwide are semi-automatic. 82 Unless the Supreme Court intended to prevent the state from banning all handguns at once but allow it to ban all handguns by simply banning semi-automatics, and then separately ban revolvers, it is probably safe to assume either that semi-automatics are in common use or that they cannot be classified distinctly from the broad category of handguns. 83 Thus the state should try an even narrower category, such as Glocks. 84 In doing so, the state would be able to lower the number of weapons its ban would affect from over 77 million to around a few hundred thousand (ballpark). Although we do not know how popular a weapon needs to be in order to be in common use under Heller, 85 a weapon s ability to be a protected arm under the common use test is currently based mostly on popularity, 86 thus, whatever the minimum number for popularity is, the state will have a much easier day in court if it tries to ban Glocks as opposed to semi-automatic handguns or handguns in general because the number of Glocks is insignificant compared to the number of total handguns. As can be seen through this example, drawing narrow categories will be the state s greatest ally when trying to regulate the ownership of any particular types of firearms. Just about any firearm can be whittled down into a state of unusualness or atypical ownership if the state can narrowly categorize without limit. This illustrates another major issue left unresolved by the Heller opinion which, if left unchecked, will greatly curtail the protection offered by the Second Amendment. 82 See, supra pp ; Johnson, supra note 8 at Lets at least assume that semi-automatics are in common use for the sake of this example. 84 A Glock is a popular handgun manufacturer, known for being made in part out of plastic instead of metal. Glock sold approximately 41,294 handguns in 2009 alone. See, supra note See, supra pp Id. 23

25 There are two ways a firearm can be considered to be in common use if popularity is the key to being in common use. A weapon may be common because it is widely owned-for example, a Remington shotgun with sales in the millions. A gun might also be common because it is functionally the same as other common guns-for example, a custom-made shotgun that operates just like the widely-owned Remington. 87 Since the Heller opinion provided no guidance as to what criteria (numerically and substantively) makes a weapon in common use, it is unclear whether a weapon needs to be popular on its own like the Remington shotgun from the quote above ( pure popularity ), or popular due to it being functionally equivalent to the common category like a custom made shotgun from the quote above ( functional equivalency ). From a practical, real world, common sense standpoint, functional similarity should be the key inquiry. 88 The pure popularity approach makes most weapons highly susceptible to the state s ability to categorize a weapon out of common use, and essentially allows the state to ban at will by categorizing around the Second Amendment. The functional equivalency approach ensures that the state can only ban weapons that are substantively and truly unusual. This seems to be more in line with the dangerous and unusual language based rationale behind the in common use rule. Weapons that are rare as specific models and functionally and substantively distinct from the popular, common weapon category will most likely be unusual from a numerical standpoint and will at least 87 Johnson, supra note 8 at Of course, these types of objective considerations are usually absent from most gun control debates. See, Johnson, supra note 19 at

26 some of the time be more dangerous because they will function differently in some way compared to a normal gun. 89 As noted by Nicholas J. Johnson, At the most basic level, a subcategory will display the same properties as its super type, as well as some differences. In undistorted cases it is easy to have a principled discussion about what constitutes a substantive distinction and a legitimate subcategory. But in the gun debate, some distinctions are mainly political or symbolic. This distorts the delineation of legitimate substantive categories and complicates extrapolations from the common use standard. 90 Ideally, if a weapon is no different functionally from the popular, protected weapon, it should not be banned. If the functionally distinct weapon is safer than or just as safe as the protected arm, it should not be banned simply because it is numerically uncommon. If we assume, from the previous Glock example, that semi-automatic pistols are in common use and thus protected arms, the state should not be able to ban only Glocks since functionally they are no different from the class of semi-automatic pistols. 91 They would not truly be any less usual than some other protected pistol, nor would they be more dangerous. Additionally, since a Glock is not truly different from a normal handgun, it is not any more or less typically possessed by law abiding citizens for lawful purposes than the prototypical protected handgun. 89 See, supra pp Here is another place where the argument for an increased importance to be placed on dangerousness comes into play. If a weapon is functionally distinct from the weapon that is in common use, it should not be banned simply because it is different or not popular, it should only be banned if it is more dangerous than the common weapon, it will only be more dangerous if it is functionally distinct from the protected arm. If a functionally distinct weapon is actually safer than the common protect arm, popularity alone should not be sufficient to ban it. Unfortunately, the current state of the law places very little importance on dangerousness so this may be a moot point right now. 90 Johnson, supra note 19 at Contrary to the false rumor presumably started by what Bruce Willis said in the classic film Die Hard II, Glock pistols cannot pass through metal detectors undetected since the barrel, internal parts, and entire slide assembly (basically the upper half) of each Glock pistol is made entirely out of metal. 25

27 This issue has not come up in the lower courts yet. The closest thing is the few cases that have challenged assault weapon bans. This paper will delve more into these later, for now suffice it to say that the courts have found that assault weapons (a very narrow category that for the most part is not functionally based) are not protected arms. Thus, by implication the courts have accepted the states narrow categorization. However, it is important to note that the individuals challenging these bans did not specifically challenge the statutory classifications themselves. 92 Thus, essentially, the issue has not been tried in court yet. Returning to the Glock ban example, the arguments in practice would roughly go as follows. 93 The state would argue, This statute bans only Glock pistols, Glock pistols are not in common use in society because they are dangerous and unusual and not typically possessed by law abiding citizens for lawful purposes because there are only a few hundred thousand Glocks privately owned in America. A practitioner should roughly argue as follows, Glock pistols are a protected arm because they are functionally indistinct from the general class of semi-automatic pistols which makes up the majority of handguns and are clearly in common use under Heller. While there may be a few minor things that make Levi jeans different from all other jeans, this does not mean that Levi jeans would not be in the jean section of the clothing store. The same goes for Glocks. Glock pistols are functionally indistinct from pistols as a whole. The argument would continue, There are minor cosmetic differences that differentiate Glocks from other pistols but these differences are not substantive, nor do they make Glock pistols functionally distinct from other pistols. Glocks are no more 92 People v James, 174 Cal. App. 4th 662 (2009); Heller II, 698 F. Supp 2d This is obviously a highly abridged version what the actual arguments would entail. 26