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In most of the 20th century, the antigun movement focused on banning handguns. Rifles and shotguns were said to be good, pistols and revolvers bad. The Colt AR-15 Sporter rifle hit the civilian market in 1964, the same year that Colt made its first deliveries of the M-16 to the Air Force. The AR-15 is semiautomatic, requiring a separate function of the trigger for each shot, while the M-16 is automatic, meaning it fires continuously as long as the trigger is pulled back. Despite that basic difference, they looked similar on the outside, causing the Violence Policy Center [to] see the potential for confusion in the public. The idea of labeling the AR-15 and like rifles “assault weapons” and banning them was born. …

And now comes Bruen, collapsing the house of cards. Conduct within the “plain text” of the Second Amendment is presumptively protected, and a restriction may be valid only if the government shows it to be “consistent with this Nation’s historical tradition.” Text-history is in, means-ends scrutiny is out. And the history (or analogues thereof) that matters is 1791 and the initial decades that followed, as long as consistent with the text and early history.

Under the Heller test, as elaborated upon by Bruen, AR-15s and similar semiautomatic firearms may not be prohibited. Indeed, Heller and Bruen together establish the test for any ban on firearms, and that test makes clear that all firearms in common use for lawful purposes are protected and cannot be banned.

AR-15s and other similar firearms come within the “plain text,” because they are bearable arms. Heller and Bruen both establish that the Second Amendment extends presumptively to all bearable arms. Second, banning such firearms is not consistent with this Nation’s history. Indeed, the Supreme Court established that such a ban is inconsistent with this Nation’s history nearly thirty years ago by holding that AR-15 rifles “traditionally have been widely accepted as lawful possessions,” Staples v. U.S. (1994).

What is more, the historical boundaries of protected arms have already been established in Heller and Bruen. Those cases make clear that the only arms that are not protected are “dangerous and unusual weapons,” which necessarily entails that citizens have a right to possess and use arms that are “in common use today.” For this reason, historical analogues have no place here; the Supreme Court has done the historical analysis and set forth the “common use” test.

— Stephen Halbrook in America’s Rifle

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44 COMMENTS

  1. Bruen had only to do with ‘carrying a gun” not which type of guns are legal or should be legal.

    Remember the Scalia ruling was “slick as eel shit” and gave the courts an “out” by declaring that the courts had the right to “regulate” firearms which was a disingenuous way of saying ” We can damn well ban anything that we feel is too dangerous to let the public own.

    And the other out is that the Supreme Court can simply dodge the “heat” and let lower anti-gun rulings stand which they have been doing since 2A was signed back in the day. This is why 2A was crafted so vaguely because the corrupt merchants that wrote 2A knew they could not at that time disarm the people totally so this was their back door way to ban or regulate firearms.

    • @dacin

      you obviously do not understand Bruen or the Second Amendment… it also in effect incorporates Heller, Mcdonald, and Staples

      the types of guns permitted under Burn are those in common use, the MSR (AKA AR-15 for some) are in common use … thus Buren defines which “type of guns are legal or should be legal” and those types are the ones in ‘common use’.

    • darcydodo…If the so called merchants were corrupt there would be no Second Amendment and you would be sipping tea ol’ chap.

      I suggest you worry about the corrupt biden administration leaving mointains of US munitions for terrorists in Afghanistan and exchanging a notorious arms dealer for an America hating douchebag like you.

    • dacian, the DUNDERHEAD. Have you totally lost your mind? I’m sorry that is a rhetorical question. How do you think they got that rifle to be able to carry? It seems you did not read BRUEN at all, did you? For your edification, BRUEN limited Justice Scalia’s ruling. But then you don’t bother to read the decisions of the Court, you just comment on them.

    • if you can not own, then you can NOT carry.
      derp.
      you played yourself there dummy.
      so for us to be able to carry we are Guaranteed the ownership by the constitution.

    • You were on to something until that last paragraph where you went off the rails. I guess that’s your brand though…

    • To all,

      dacian did exactly what he wanted with his ignorant post. He got 10 people (11 when you count my dumbass) to respond to him. I submit that no one ever respond to any of his posts going forward.

      I think he might be an internal TTAG plant to get people to post comments, and rial up the crowd. The trolls like him boost the number of responses in the comments section which in turn boost the number of page views…..which after all is the reason the website exists….money.

      I could also be totally wrong on my assessment of the situation.

      • You’re not wrong but the first half of his post was actually worth reading. That’s half a post more than usual so I for one want to encourage the improvement.

    • dacian, the DUNDERHEAD. As I have pointed out on a multitude of occasions, it is as clear as a bell that you haven’t read Bruen.

  2. If a firearm must be in common use to be protected, will gun control advocates be able to argue successfully to ban new technology? Because if it is new, it can’t then be in common use.

    • Bingo. “The right to keep and bear arms in common use may not be infringed.”

      All this perpetual courtroom drama does is keep the firearm under the microscope, provides cover for Gun Control Rot and does not provide a much needed clear borderline between the criminal misuse of firearms, bricks, bats, knives, feet, fists, vehicles, etc. and The Second Amendment.

    • And let’s not forget that the NFA was from the 1930s and mandated federal regulation of a lot of guns that are only topically different than basic guns you can buy at walmart.

    • Good point. As long as gun technologies continue to slowly develop & evolve then we should be okay. If there’s some major, sudden leap forward, like a terminator traveling through time and giving us phased plasma rifles, then that could be a problem.

  3. Being primarily a pistolero and not a hunter, I’ve never been overly interested in rifles. I’ve shot a few here and there throughout the years but it was only recently that I bought an AR. What a hoot! I bring this up because there are plenty of people like me that have one for the fun of it which certainly makes this rifle even more “in common use”
    BTW, I remember reading about some “journalist” who shot an AR and was given PTSD from the noise and recoil. What a little girly man…

    • Gersh KUNTsman is “his” name Bu. Don’t wanna misgengender the leftsissie🙄 I was in the same boat as you. Never thought about getting an AR. But it fell off a truck & here we are…

  4. Won’t matter much if Sinema and Manchin vote with the dems to pack the court in January. Once the new communist/traitor judges are seated they will start overturning all the rulings such as Heller and Bruen. Count on it.

    • RINOs & Never Trumpers have doomed us in the long term. It is unlikely that we will ever see another GOP Potus, as either Trumpers or Never-Trumpers will be upset with the nominee every election and not participate. The SCOTUS will ultimately go liberal as the old conservative justices die off and get replaced by liberals. When confiscation eventually arrives, it will not be door-to-door; government will use banks, utilities, insurance companies and education systems will do the dirty work.

  5. “Like All Commonly Used Bearable Arms, the AR-15 Cannot Be Banned Under Bruen”

    Of course they can be banned. A law, any law, does not violate the constitution unless, and until the SC says so…and the entities who create the ban agree to repeal an unconstitutional law. That is precisely where we are today.

    • They can’t constitutionally ban what is presumed constitutional or constitutionally protected to have unless they first have it declared unconstitutional or not constitutionally protected. That’s why an outright ban hasn’t happened under Biden, aside from votes needed along came Bruen. Sure, they can ram a law through for ‘banning’ their rifles with their made up false term ‘assault weapon’ if they had the votes and then start acting on it but it would not be a presumed constitutional law like other laws, it would be unconstitutional flat out from the beginning but it would still take the courts to say it was unconstitutional.

      • Second Amendment or no Second Amendment history has shown clearly what happens to an unarmed, disarmed populace. Therefore it is insane to travel the Gun Control path when the Gun Control path is littered with horrors that cannot be imagined.

        Whether it’s a home invader having their way with residents or a tyrant having his way with millions where there are people who were subjected to Gun Control there are dead people.

  6. “Dangerous” describes all weapons and/or things that can be used as weapons so its irrelevant to the discussion.
    All that matters is “unusual.” “Unusual” might be described like SCOTUS once described pornography, “I know it when I see it,” but maybe its better to look at an “unusual” as the antithesis to “usual,” hence “common use.”
    So what is a “usual” firearm? Easy checklist–it has a barrel, the barrel is rifled (although this could be debated), it fires a non-explosive projectile by explosive means, the firing is the result of the triggering of a mechanical action.
    No discussion as to how the weapon is loaded/reloaded is relevant—muzzle loading, break action single cartridge loading, single cartridge bolt action, magazine fed bolt action (whether by magazine–internal or external— or tube), magazine fed slide action (magazine—internal or external– or tube), revolving action (fed by hand singly or by clip/speed load), auto-loading (semi) fed by magazine (tube or magazine–internal or external) or (yes) belt. Im sure I missed a few.
    Point is that the action and/or the method of loading/reloading it is not what makes a firearm “unusual,” the argument itself is a fallacy that has been fallen for.
    Hopefully one of these days we have a Court decision that acknowledges this.

  7. “Unusual” could encompass weapons that are designed to look like something else. A wallet gun, a cane gun or sword, a belt buckle, tie clip, cell phone, a remote operated weapon like 007’s guns mounted in the front of a sports car.

    That would be up to the courts

  8. “….in common use today.” Careful what one stakes their position upon…..unintended consequences. Does this concept preclude citizen ownership of future new firearm developments, as they are not in common use today? Prior to 1964, the AR-15 was not in common use. There were “not in common use” phases for every single firearm development throughout history…..breach loading, rifled barrels, metallic cartridges, telescopic sighting systems, repeating mechanisms (lever, pump,…), semi-automatic loading, non-metallic frames, et el.

  9. Common use is bullshit.
    The Right To Bear Arms(doesn’t leave out cannons, battleships, f150’s with a gatling gunms) SHALL NOT BE INFRINGED
    This in common use is going to bite We The People in the ass when lazer gunms are the new weapons of war. Weapons of War, yes, that’s exactly what the second amendment means when it states, The Right to Bear Arms.
    Wyatt Earp wasn’t no hero either.

    • the AR-15 is the perfect example of a militia-ready weapon…functions pretty much the same as its military counterpart, shoots the same ammunition, etc., etc….the best defense for its continuing availability is the sheer numbers out there…it’s certainly “in common use”….

      • That’s just what I’m talking about though. In Common Use has nothing to do with the second amendment. No part of it says ” And the citizens may process weapons in common use.”
        It says “We The People” can have whatever it takes to defend this country as it was founded. Nowhere does it mention exclusion to caliber or conveyance.
        In common use can exclude what it wants.
        The Supreme Court decides? What’s The Supreme Court, nine smart lawyers turned judge that twist words so they can always find a loophole. When the Machine gunm ban went into effect where were the 9 steadfast proponents of the United States Constitution. Shall. Not. Be. Infringed.
        And now ‘in common use’ is a buzzword.
        Lead and copper projectiles are antiquated, laser beams from outer space are not.
        Skynet is real

    • possum, I beg to differ, while Earp may not have been “perfect” he was a damn sight better than the vermin he faced.
      For your edification, laser weapons are already in existence, if impractical, but are much to expensive for the average person.

      • 14 feet longer then a 747, they are circling the planet right now. Uses 3 lazers one is juiced with iodide.
        Can pinpoint my location using this smart phone.
        Purple Haze, vaporized

        • possum, if you believe that, it might be time for you to check into the local mental facility. I don’t think you can carry a weapons longer than a 747 under your arm? Can you?

  10. I view the AR Pattern firearms as the 21st Century successor to the 94 Winchester and 336 Marlin as the family utility arm. The AR-15 in 5.56 MM or 350 Legend in the collapsible stocked carbine version is an arm any member in the family can use. Today there are AR Carbines available families on any budget can afford. When I retired from Law Enforcement, I returned to Firearms Sales. The AR Carbine is one of the most popular arms for everyone from Grade Schoolers first centerfire to senior citizens looking for an easy to use defensive arm. Having seen national sales figures I would say there are way more AR Pattern arms in private hands than the Military and Law Enforcement combined.

  11. Heller and Bruen don’t mean a thing to the Left. They will just ignore the Courts decision and dare anyone to do something about it. If the Left is challenged they will deploy their rent-an-army of Fascist-Fa, BLM, anarchists, gay boys and girls, ex cons, and the ever present drug addled freeloaders.

  12. Between Biden’s and the Connecticut governor’s recent anti-gun rhetoric I would not be surprised if the executive branch – and possibly the legislative branch decide they’re going to ignore Supreme Court rulings they don’t like. After all, if Biden writes an executive order to start collecting “assault weapons” and the DoJ goes along 100% how is a ruling by the Supremes going to be enforced?
    Most Democratically controlled states and cities will cooperate with enforcing it. Opposition will be a patchwork of Sheriffs and local police in more conservative places opposing enforcement. But more likely, those LEA’s opposing it won’t actively intervene with gun collection, but simply stay away.

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