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Since the Supreme Court upended the standard for determining the constitutionality of gun laws in 2022, defining common use has become hugely important, particularly in cases involving so-called hardware bans, such as prohibitions on AR-15 style rifles and HCMs. Those who oppose such bans argue that common ownership equals common use. Supporters argue that the right measure is the frequency with which a weapon is actually used for self-defense, as the Supreme Court’s Second Amendment jurisprudence is centered on the right of self-defense.

Both sides in the Oregon case agreed that Americans own many millions of HCMs. Given the sheer number of guns produced that are designed to accept them, it follows that large numbers of high-capacity magazines are in circulation. The term high-capacity magazine has no universally accepted definition, but typically is applied to those that hold ten rounds or more (though many models hold 30, 40, 50 or even more rounds). Fourteen states have outlawed HCMs. In at least five of those states, the bans are being challenged. Ten states prohibit AR-15-style rifles, and in at least six, gun rights interests are seeking to strike down the bans.

Judges hearing these challenges have reasoned differently on the “common use” issue. [U.S. District Court Judge Karin] Immergut, placing herself firmly on the frequency side of the debate, cited evidence suggesting that few rounds are fired in the overwhelming majority of defensive gun use cases. She ruled that “features unique” to HCMs — chiefly the ability to fire more than ten rounds without reloading — are rarely employed in self-defense situations, hence they can be banned.

On September 22, U.S. District Court Judge Roger Benitez overturned — for a second time — California’s HCM ban, which voters approved in 2016. Benitez, a gun rights darling who has been criticized for callousness and a lack of restraint, decided that the criterion for common use was simple prevalence. The NSSF chart featured as evidence in the case. “A person may happily live a lifetime without needing to fire their gun in self-defense,” Benitez wrote. “But that is not to say that such a person does not use their gun for self-defense when he or she keeps it under the bed with a hope and a prayer that it never has to be fired.”

— Will Van Sant  in The Gun Industry’s Trade Group Is Using Flimsy Data in Big Court Cases

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  1. “cited evidence suggesting that few rounds are fired in the overwhelming majority of defensive gun use cases.”

    The ‘cited evidence’ is derived from the original pure BS, and here’s why:

    • lol
      Made up data based on someone else’s made up data and no one in the equation actually knows anything. But it’s all believed by people that also know nothing. Pretty soon a useless law gets created that accomplishes nothing but wasting money.

      We see this unfold with so many things.

      • Virtually every police shooting involves higher capacity magazines (that is all the police generally use). Virtually very military weapon use involves high capacity magazines (it’s what they use too).

        The public has the right to use the same magazines to protect themselves.


      How fucking hard is it to understand?”

      Biden: “well, first of all there is that whole alphabet thing, then that dictionary thing, then …oh gheesh, words be so hard cause all men and women are created…you know, you know the thing.”

      • “The rights of the peeples, for a more perfikt Union organizer ten-round clipps…cannot…you know Hunter is the smartest m…OH CRAP I TRIPPED ON THE RUG AND FELL! Go get my……mmmmph….glyfffkt……urp!”
        “Have that judge fired!!”
        (Strains of “Hail To The Chief reverently playing in background”)

  2. “We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.””

    Has nothing to do with how the arms are used (“all lawful purposes”).

    • There is an interesting “logical” implication of this “defensive use metric”, conjoined with the related claim that “guns are not a passive deterrent” – , in order to keep our favorite firearms legal, we have to shoot people with them as often as possible – in self defense, of course.

      Yet another example of a ridiculous thesis leading to ridiculous conclusions…

      • makes me think next time I will not consider just warning or brandishing to be enough.

        “he was facing me with his gun when I fired, he was shot in the back ’cause ricochet.”

        • I read that when John Wesley Hardin was killed, there was controversy over whether the lethal round entered his head from the front or the back. The judge at the inquest said. “If Mr Hardin was shot in the forehead, that was excellent marksmanship. If he was shot in the back of the head, that was good judgement. Next case!”

  3. The primary use of a firearm in relation to the Second Amendment is self defense, first of the State, and second personal.

    The knowledge of the existence of a firearm, much less MANY firearms, provides for that self defense function in many cases without having to fire a shot.

    Just as the presence of a large dog in your yard would tend to keep trespassers and other miscreants outside the fence, the dog is used daily for that purpose even if it never has the opportunity to chase anyone off your property.

    A gun in your closet adding up to one of 25 plus million similar guns in U.S. closets and safes, is in daily use for its purpose, just as is the dog, whether or not you need to shoot some wannabe tyrant with it.

    • RE: “Judges hearing these challenges have reasoned differently on the “common use” issue. [U.S. District Court Judge Karin] Immergut, placing herself firmly on the frequency side of the debate, cited evidence suggesting that few rounds are fired in the overwhelming majority of defensive gun use cases. She ruled that “features unique” to HCMs — chiefly the ability to fire more than ten rounds without reloading — are rarely employed in self-defense situations, hence they can be banned.”

      Let’s see…If you load 30 rds. and you used 5 for self defense then somehow that dictates how many rounds one many have in a firearm to defend you and yours. Only a weasel rolling around in an agenda History Confirms is Rooted in Racism and Genocide called Gun Control could come up with such diabolical funny math.

    • No, the Second Amendment is that the well-regulated militia is under control of state government which regulates the militia’s weaponry as well. This is to defend the state from outside invaders NOT to police its citizens. The second part is non-limited Right of citizens to keep and bear arms which is first and foremost taking into account the existence of a militia and that a militia must obey orders (well-regulated) from the governor and that the possibility is not diminished nor overlooked it could likely go awry should governor become a tyrant and that in any event the need for arms always has and always will be there. The militia mention is a clarification emphasizing the history of abuses of power. State’s Rights must follow the The Bill of Rights but states can straddle the thin line or have their own Constitution. Rights that are ignored go away, Rights must be exercised so that they remain intact and respected. Firearms can be used to end lives but firearms saving lives cannot be minimized and those numbers far surpass a minuscule death count. We must be clear that The People have granted power to what was supposed to be a limited but efficient government and we have the Power and the Right to take that power away without fear from threats or retaliation. Government has no Rights, the citizens have power and Rights. We control government or did we give that up as was the warning “If you can keep it” ignored?
      How ignorant people must be to believe this Right is debatable, adjustable or best left to strangers to decide, it is frightening. Your government trying to disarm you should cause great concern. The Revolution was not won but rather King George did the math and was not going to spend his riches fighting to kill those he could no longer collect taxes from. This is still true, the wealth of a nation is spent on destroying its citizens and their property.
      People in a free society giving up its Right to keep and bear arms is a mistake they can make only once”

      Search online “Ludlow Colorado 1914” for a classic example of a militia, a governor giving orders so as to curry favor from a wealthy family whose coal mining company workers in Colorado went on strike then were made to suffer losses of family members from machine gun fire and the intentional torching of their tents. The miners were armed and war was waged in the eastern part of Colorado Rocky Mountains and other mines to the north. There is a monument placed near I-25 in southern Colorado depicting a miner and his wife and children. which I had visited on a motorcycle trip. Someone had broken the heads off the statue! I will say here that had I been nearby to witness such vandalism and what that statue represents I would have done my best to shoot to kill those that would deface that monument.
      The coal mine and approximation of it to the Arkansas River (the water source) was the beginnings of what would become CF&I Steel in Pueblo Colorado.

      • well regulated means well trained or well functioning, the supreme Court has done investigation in regards to this – read the Heller decision.Militias at the time of ratification we’re not under exclusive control of state governments. Most towns had there own militia.
        The 2nd amendment was crafted so the American people could always do what they had just done – resist and defeat a standing professional army that had been sent by a tyrannical government to oppress them.
        The bill of rights as a whole doesn’t give rights to the people, it places restrictions on government. This is stated in the pre amble to the bill of rights.

  4. “Supporters argue that the right measure is the frequency with which a weapon is actually used for self-defense, as the Supreme Court’s Second Amendment jurisprudence is centered on the right of self-defense.”

    The desperation is starting to show…

    {Insert evil laugh *here*} 😉

    • the question is, will their desperation ever lead them to quit stifling the 2a?

      Every time they come up with a sophomoric rationale that banning whatever is valid, it gives them another chance at, if nothing else, prolonging the denial of our rights. They push another law in place. Then argue that this law is legal because unicorns aren’t real, and favorable communist judges (looking at you 9th) use their methods to drag things out as long as possible. Repeat ad nauseum. Its heartening to get victories, tiring to see the next law passed that thumbs it’s nose at our freedom.

      • “the question is, will their desperation ever lead them to quit stifling the 2a?”

        No, it’s hard-wired into their DNA. It’s as natural for them as breathing… 🙁

    • Able to be used/be useful for common people and yes I would say that includes armored vehicles and artillery with the assumption that proper blast mitigation storage is in place for munition storage.

    • They have nothing and their trying to limit (pervert) the scope of SCOTUS statement “In common use for LAWFULL PURPOSES SUCH AS SELF DEFENSE” to “common use FOR self defense”. Bottom line is there are 20 – 30 million AR’s in civilian hands and there are the most popular type of rifle is sold in the US. They can’t be banned based on actual text of Heller and Bruen decisions. The gun control crowd can’t accept that – it denies their reason to exist.

  5. hmm the second amendment is about self defense? neato, I thought they typically say it’s just about the militia or the military…

    common use is a two edged sword… there are a lot of silencers now but not a hundred years ago, so now they should be protected but if that is the standard they could have banned them right out of the gate. This logic should protect and grandfather all current arms and technologies (bump stocks, machine guns, pistol braces, silencers, AR-15s, AK-47s, Glocks).

    If something has to be in large supply to be protected, future arms technologies could be banned for not being in common use, so we may get stuck with all access to 1700-2024 guns but laser blasters or personal defense drones or whatever is next will be off limits.

    I want to be able to buy that plasma rifle in the 40 watt range when it turns up.

    • Yes and it is because you have to have government and some sort of a militia just in case therefore citizen’s must be free to a defense against a government and its militia should they go astray or tyrannical. One vote per citizen but ammo supply is a different defense against a common enemy’ Do not forget Biden laughing at your AR15 and bragging how they are useless against his fighter jets. Strange that he did not stumble over wording that sentence. And not really a message for unity either. GPS listening devices that also capture and store simple text and media for storage in the Google “Cloud”. Hey Joe where you going with that fighter jet in your hand, against the Constitution to use those against the citizens of your own land.

  6. Please give us a list of firearms that have a capacity less than 10 next to a list of firearms that has 10 or more capacity. I’d like to see which is more common!

    • My 444Marlin levergun holds 4+1, and is slow to reload in action.
      My AR holds 30+1 and is very fast to reload with a simple magazine change.
      Barring a charging pachyderm, which one do you suppose that I’ll commonly use?

    • What I would like to see is a list of makes, models and calibers used successfully to stop bear attacks. There have been a couple of successful uses recently in Idaho, and a also a notable failure of bear spray in Banf.

  7. “She ruled that ‘features unique’ to HCMs — chiefly the ability to fire more than ten rounds without reloading — are rarely employed in self-defense situations, hence they can be banned.”

    A false logic.

    First, its not true that “HCMs” chief ability is to “fire more than ten rounds without reloading”:

    To begin with the term ‘high capacity magazines’ doesn’t even have an actual definition, its use is based upon what the ‘state’ wants to define as ‘high capacity’ with anything over a limit they define as being ‘high capacity’. The magazines purpose is to hold ammo so an immediately ready supply available between needs to change magazines to replenish that immediately ready supply, no one can predict how many rounds from that immediately ready supply will be needed in a defense situation.

    Then, just how many people can predict the future? Its not abnormal for police to fire over 10 rounds when faced with an armed adversary, did they somehow predict the future and go “Oh, today I will only need less than 10 rounds.” ?

    Then, what about those ordinary armed civilians who do fire over 10 rounds or will need to fire over 10 rounds. Heck, myself, in just one incident to save my wife I had to stop two bad guys and I went through three 15 round magazines before the bad guys were stopped. I had 3 rounds left in my last magazine when it was over.

    And although its true that sometimes less than 10 rounds are fired, self-defense is a fluid evolving situation and there is no way one can predict how many rounds they will need in a magazine and this judge can’t predict it either and neither can the ‘state’. There are plenty of people who fire 10 or more rounds in a defense situation, its not rare. In fact its pretty common in home invasions and its been happening for many years, for example, 30 rounds used here > … and heck even Eli Dicken had to fire 10 rounds and would have probably need more if the shooter had been able to continue to advance like he was trying to do.

    • You’re talking too much sense, Booger. No progressive can understand a single sentence you have written. Regular liberals might understand one or two sentences, but they won’t be able to string together a whole paragraph. It’s entirely over their heads.

        • Let’s not forget about Jim Cow Gun Control joe and his double barrel shotgun that can fire 18 00-buck projectiles or a 5 shot semi 12 ga that can fire 45 00-buck projectiles. Once they sell their mag capacity insanity to America’s Gun Control History illiterates then rest assured it’s on to shell capacity.

  8. “the ability to fire more than ten rounds without reloading — are rarely employed in self-defense situations, hence they can be banned” – What she’s really saying is that the victims in those rare cases should have been sacrificed to their criminal attackers for the sake of the [imagined] public good. Is there some legal principle the judge can point out of coercing people to sacrifice their lives for the benefit of the public?

  9. Your bog-standard Glock 9mm uses 17 round magazines, and it the most commonly-sold handgun.

    So much for their little argument… 🙂

  10. How about Dimscum© go without heavily armed men with HCM(lol)? Presidon’t Sniffy can you understand that in your senile dementia state???

  11. I might go along with banning high capacity magazines. I mean, if you need a five or ten ton truck to tow the magazine, then it’s a bit much. Let’s keep magazine capacity down to something that a Dodge Ram can haul. Unless, of course, you own a howitzer or a main battle tank or one of those fancy YUUUGE-ass guns mounted on a tank chassis. Then, all bets are off.

    • Funny thing about fire extinguishers, the “experts”, i.e. Fire Marshalls etc. recommend equipping yourself with the LARGEST extinguisher that you can physically handle, since you may find yourself battling large and/or multiple fires.
      Commercial vehicles generally carry a minimum of a ten pounder, which are Large Capacity Devices

  12. The “In common use” applies to all lawful uses (including recreational and competition shooting), not just self defense. period, full.stop.

  13. I know they think playing semantic games makes them appear smart or even cute.
    In reality doing so does the exact opposite.

  14. “Van Sant: ‘Common Use’ Isn’t Defined by the Number of Banned Guns or Magazines Owned, but How Often They’re Used in Self-Defense”

    No. Common use= number owned by the general American public. Period.

    Van Sant and ilk would shudder and pee their pants if the number of DGUs by the general public in their own defense say, doubled or tripled. And seriously- that’s a goal Americans should be seeking, particularly when those elected, appointed or hired “to protect us” from criminals and thugs refuse to do their jobs. When it comes right down to it, and the courts have confirmed it- you’re on your own when it comes to your personal wellbeing, neither law enforcement nor the judicial system owe any citizen protection.

  15. The 2nd Amendment wasn’t written for self defense, or hunting, or sport shooting. It was written by men that had just used their personal weapons to overthrow a tyrant and leader of the strongest and most modern military in the world at the time. Those that wrote about the subject outside of the Constitution made it very clear that an armed populace was a hedge against future tyrants, both domestic and foreign.

    • It appears to me that what we use now instead of gunms is lawyers.
      Sue our way to freedom. Yeah that’s the ticket

  16. This same argument is being made in multiple cases by AG Bonta in the pending California cases and in Oregon. I am not sure where they came up with the idea that permissible mags are those in common use FOR SELF DEFENSE. Must be some dicta floating around, but that is NOT the standard the Supreme Court used in Heller and Bruen, notwithstanding the statement that the core of the Second Amendment is self defense. The libs and the lib judges are using this to argue that ANY arm not useful for self defense can be banned/limited/regulated. The fall back argument is that “dangerous OR unusual” arms (such as butterfly knives, ARs, etc.) can be banned.

    I think they are wrong, and at some point in time the Supreme Court will take another case and slap these arguments down permanently.

    • Of course they are wrong, very clearly, not only for guns, but ‘common use’ is also applied for ownership and possession and Heller and Bruen was pretty clear on that because ya can’t use it without owing or possessing it, I mean ‘bear’ means to posses. Their argument is going to fail at SCOTUS and it should have already in the lower courts.

  17. Putting my money where my mouth is, I ordered a few 60 round SureFire mags, so they would be commonly used in my family. Feel better now, Van Sant?

  18. Since your car is not being driven right now, its not in use so you can’t have any gas in it.

    Oh yeah, while we are at it … computers used to exercise first amendment rights is not in common use because they all aren’t used to type more than 10 words.

  19. There are two errors in opinions by inferior court judges. First Heller defines arms not protected by the 2A as Both Dangerous & Unusual. Therefore firearms by their very nature are dangerous so they satisfy the 1st part of the criteria. However while Heller doesn’t define what Unusual is one must use Caetano v MA to find the definition. Caetano states stun guns are arms and they aren’t unusual because in 2016 there were at least 200,000 stun guns kept by the people. Heller uses the antonym of “unusual” term “common” in the text defining 2A protected arms. The text is “in common use for lawful purposes” therefore these inferior federal judges are misquoting Heller. The phrase self defense is only one of the uses that are lawful.
    P.S. Article III of the Constitution uses the term “inferior” describing courts that Congress crates to perform the constitutional duties of the judicial branch. The only justice/judge listed in the Constitution is the chief justice of SCOTUS. Congress determines by legislation the size of SCOTUS, circuit courts & district courts.

  20. Just because my magazines are in rifle bags, closets, and drawers, doesn’t mean I’m not using them for self defense.

  21. Remember that WE are knowledgeble because we are engaged in the firearms world , Whereas the non gun owner only has the information that is thrown at them by politicians and liberal teachers or news reporters. It really is an uphill battle for us and we must be forceful without be overbearing , which will frighten the non owners and turn them against us. Many valid arguments fron our side make sense to us but are totally out of the norm of non owners, again frightening them to the point of “do something”…not in our best interests.

  22. We as gun owners need to quit using the anti-gun term HCM or high capacity magazines, if the gun manufacturers issue them with that size magazines then thats standard, if that type of magazine is used by the military as a standard issue then it is STANDARD CAPACITY. Quit using these types of terms these are standard capacity, there’s no such thing as a ” ghost gun” they cannot appear or disappear at will or fly or hunt people, any weapon even an ink pen if used in a aggressive fashion can actually be an assault weapon but that’s not technically what was considered an ” assault weapon ” selective fire or full auto is along those lines. We need to STOP the language and redefine them as they should be or better yet play their game and change them to something we want it called then correct them each time they misuse our wording because they’ve had years of brainwashing the public using their words so why do we continue to use theirs if the 2A community cannot stop using them how can we expect the public to stop and the think of them as bad objects, it starts with US


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