Second Amendment will be Nullified if ‘Common Use’ is Restricted to ‘Popularity’

“The Second Amendment protects modern weapons,” Judge Roger T. Benitez observed in his landmark Miller v. Bonta ruling striking down California’s so-called “assault weapons” ban. He was citing Caetano v. Massachusetts, a 2016 United States Supreme Court decision vacating a woman’s conviction for carrying a stun gun for self-defense.

“The Court has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,’” the High Court, citing the Heller case, unanimously held. “In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining ‘whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.’”

Aside from the obvious, no-nonsense assertions of Founding-era voices such as Tench Coxe (“every terrible implement of the soldier”) and James Madison (see “militia” observations in Federalist No. 46), it helps to understand another gun-grabber lie, that the Founders only had single-shot muskets and couldn’t have imagined technological advancements leading to more lethal weaponry.

Firearms technology from long before their time included Fourteenth Century multiple-barreled volley guns and a design by Leonardo DaVinci for a rotating triple-barrel breech-loading cannon. The Founding Era had already seen pepperbox revolvers, Kentucky/Pennsylvania rifles, cartridges to combine shot and powder, the British breech-loading Ferguson rifle, the 11-cylinder crank-operated Puckle gun, and the Girandoni air rifle, capable of firing 22 .46 caliber balls and that had actually been used by the Austrian army 11 years before the Bill of Rights was ratified. And the above is by no means an exhaustive list.

The Founders were enlightened men, schooled in classical, political, and legal history, aware of current developments (and in cases like Thomas Jefferson and Benjamin Franklin, innovators and inventors themselves), and visionaries with eyes toward the future, and to “secur[ing] the Blessings of Liberty to … Posterity.”

Oblivious to that, Constitutional and historical illiterates, like the head of the oxymoronically named “Texas Gun Sense,” are getting ink spreading astonishingly ignorant assertions like “There weren’t automatic weapons or 100-round magazine capacities in the guns 100 years ago.” And, like useful idiots, they’re making such moronic pronouncements for Chinese communist propagandists (who want Americans disarmed and live Chairman Mao’s maxim that “Political power grows from the barrel of a gun”).

That’s bad enough, but the grabbers then bring those arguments into court cases and equally corrupt judges then create “settled law.”  As the Brady Center argued in a brief supporting the State of Maryland’s semiauto and magazine ban:

“Suppose, for example, that a new, unregulated and highly lethal weapon were developed before a statute was enacted. When first offered for sale, the weapon would not be protected because it would not be in common use. However, under Plaintiffs’ theory, if sales of the weapon grew explosively over the next year, prior to any legislation, then the weapon would, within that short time frame, become constitutionally protected, even though a ban would have been permissible had the legislature acted just a few months earlier. Such an approach makes little sense.”

That’s the crux—if new developments in weaponry can be denied to We the People, then it’s just a matter of time before the disparity between what the government has and what the people have will be as wide as if we were relegated to Brown Bess muskets and flintlocks against modern infantry. Unless “in common use at the time” is held to mean by soldiers in the field, with real “weapons of war,” as opposed to a sporting arms popularity contest,  the Second Amendment will be nullified as a last-resort defense against foreign and domestic tyranny.

To argue otherwise is to argue the Founders thought sending an outmatched yeomanry to their slaughter was “necessary to the security of a free State.” That’s insane.

We’re well on our way along with that, though, notably with the National Firearms Act restricting the transfer of militia-suitable arms to tribute-paying supplicants meeting overlord approval, and the illegitimate (whether a real vote was taken or not) Hughes Amendment denying post-1986 select firearms to all but government troops and enforcers. I’d argue that one of the most in-your-face tyrannical phrases ever constructed is:

“RESTRICTED FOR GOVERNMENT OR LAW ENFORCEMENT USE ONLY”

“Things to Come” was my Second Amendment column in the January 2002 issue of Guns & Ammo magazine. I wrote a bit about the bans but focused on developing technology, definitely stuff the Founders would have never imagined — as if that’s supposed to make a difference. I always began those articles with a quote to set the tone, and for this one, I borrowed from H.G. Wells in The Shape of Things to Come:

“We have declared the Declaration of Independence is inoperative…”

How that could happen isn’t hard to see.

“It’s the difference between a bow and arrow and a modern rifle,” I quoted an executive describing his company’s Objective Individual Combat Weapon System, a weapon that could “hit targets completely behind barriers.”

I cited articles on supposedly “less than lethal” microwave weapons that could burn the skin or temporarily blind, or “tetanize” (paralyze skeletal muscles). If stun guns are “protected,” why wouldn’t they be?

But who needs phasers set on “stun” when the real thing is being developed to vaporize targets Star Trek-style, along with assurances that “advances will be made and power plants will be shrunk and one day it will dominate the battlefield”?

Since when have rayguns not been seen as the great future equalizer, and who thinks keeping them away from the bad guys will work any better tomorrow than what we see happening today?

“Just remember, not so long ago your pocket calculator would have filled a room, requiring programmers, technicians and keypunch operators, and cell phones, laptops, and GPS units would have been considered no more plausible than … paralyzer beams and death rays,” I wrote. Unarguably, those advances are now all “in common use.”

“It’s been said a battle isn’t won until a man with a rifle occupies and controls the field,” that article concluded. “Someone probably once said the same thing about spears.”