End the Popularity Contest: A Proposal for Second Amendment 'Type of Weapon' Analysis

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End the Popularity Contest: A Proposal for Second Amendment End the Popularity Contest: A Proposal for Second Amendment
'Type of Weapon' Analysis 'Type of Weapon' Analysis
Cody Jacobs
Boston University School of Law
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Cody Jacobs, End the Popularity Contest: A Proposal for Second Amendment 'Type of Weapon' Analysis ,
83 Tennessee Law Review 231 (2015).
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END
THE POPULARITY
CONTEST: A PROPOSAL
FOR SECOND
AMENDMENT
"TYPE
OF WEAPON"
ANALYSIS
CODY J.
JACOBS*
The Supreme
Court's recognition in District
of Columbia v. Heller
of an individual Second Amendment right
to bear arms for self-
defense raised many questions
about the scope of that right.
One issue
that will become increasingly important in the years ahead, but that
has received relatively little
attention from scholars and
courts, is the
question of which "arms" are
protected by that right. Heller
purports
to establish a test that
asks whether the weapon at
issue is in
"common use" at the time
the case is decided. This Article
critiques
that
test,
arguing
that
it
creates
poor
incentives,
is difficult
to
apply,
and, most importantly, is
disconnected from the central
component of
the Second Amendment right-self-defense.
This Article
proposes an
alternative test that asks whether
the weapon at issue is
a reasonable
choice for armed self-defense.
INTRODUCTION................................................
232
I.
TYPES OF
WEAPONS -A BREWING
CONTROVERSY...................235
A. The Proliferation
of Assault Weapons .......
........ 236
B.
The Renewed Popularity
Of Assault Weapon Bans.........
238
II. POST-HELLER SECOND
AMENDMENT DOCTRINE-HELLER,
THE
COMMON USE TEST, AND THE TWO-STEP TEST......... .....241
A. District of Columbia v. Heller.......................... 242
1. Embracing an Individual Right ..... ................ 242
2. The "Common Use" Test.............................243
B. The Two-Step Test ...................... .......... 248
IV. THE COMMON USE TEST
APPLIED IN THE COURTS
.................. 251
A. Heller II & NYSRPA-Using the Second Step to Fix the
First Step
.......................................
252
* Abraham L. Freedman Fellow, Temple Beasley School of Law. Thanks to
Michael Seidman, Jonathan
Wolfson, Tim Lytton, Kim Connolly,
Danielle Pelfrey
Duryea,
Chris Moellering, Lisa Bauer,
and the members of the SUNY Buffalo
Law
Junior Faculty Forum
for their helpful comments and
suggestions. I would also like
to thank the staff at the Law Center
to Prevent Gun Violence for
everything they
taught me
about firearms policy (though the views
in this Article do not necessarily
reflect the views of the
Law Center). I also appreciate the
research assistance of
Brian Sarama.

TENNESSEE
LAW REVIEW
B. James & Kampfer
-Ignoring the Common
Use Test and
Replacing
it with Danger
Prevention
and
Alternative
Means Analysis..................... .......... 258
C. Fyock-Engaging With
The Common Use Test...............
261
V. THE COMMON USE
TEST'S FLAWS & THE REASONABLE
SELF-
DEFENSE
APPROACH ......................... ..... 263
A. The Problems
with The Common Use
Test ..... .....263
1.
The Under-Protection Problem
........... .....
265
2.
The Over-Protection Problem.........................
267
3. The Public Choice
Fallacy .........
......... 270
4. The Data Problem
..........................
272
5. The
Doctrinal Problem ...........................
275
B. Proposed Alternatives to The Common Use Test ............. 278
1. The Lineal Descendant Test ............. ...... 279
2. The Law Enforcement Test ..................... 280
3. The Handgun
Dangerousness Test......
...........282
C. The Reasonable Self-Defense Approach ....... ....... 283
CONCLUSION .................................... ..... 288
INTRODUCTION
Since the Supreme Court held in District of Columbia v. Heller'
that the
Second Amendment
protects
an individual
right to own
a
gun, separate
and apart from service in
a militia,
2
scholars and
lower courts have
labored to define the scope
of that right and the
proper method
of analysis for
determining
when the right
is violated.
Much of the
major litigation
and scholarship
about
the Second
Amendment
since Heller
has focused on
whether, and
to what
degree, the right
recognized
in Heller in
the context of
home self-
defense extends outside of
the
home.
3
Courts and scholars
have also
1.
554 U.S.
570
(2008).
2. See id. at 599. The
full text of the Second Amendment
provides: "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."
U.S. CONST.
amend. II.
3.
See,
e.g.,
Peruta
v.
Cnty.
of San
Diego,
742 F.3d
1144
(9th Cir.
2014),
vacated
and reh'g
en banc
granted, 781
F.3d 1106
(9th Cir. 2015);
Drake
v. Filko, 724
F.3d 426
(3d Cir.
2013),
cert. denied,
No.
13-827,
2014 WL
126071
(U.S. May
5,
2014);
Woollard v. Gallagher, 712 F.3d
865 (4th Cir. 2013), cert. denied,
134 S. Ct.
422 (2013); Moore
v. Madigan, 702 F.3d 933 (7th Cir.
2012), reh'g en banc denied, 708
F.3d
901 (7th Cir. 2013);
Kachalsky v.
Cnty. of Westchester,
701 F.3d 81
(2d Cir.
2012), cert.
denied, 133 S. Ct. 1806 (2013); Saul
Cornell, The Right to Carry Firearms
Outside
of the Home: Separating Historical
Myths from Historical Realities,
39
FORDHAM
URB. L.J. 1695 (2012);
Michael P. O'Shea, Modeling the
Second
232
[Vol.
83:231

2015]
SECOND
AMENDMENT
"TYPE
OF
WEAPON"
ANALYSIS
233
examined
whether
Second
Amendment
claims
should
be
analyzed
using
the traditional
"level-of-scrutiny"
analysis
used
in
other
areas
of
constitutional
law
or if
the Second
Amendment
calls
for a
different
"historical"
or "categorical"
approach.
4
This
Article
focuses
on
a
different
question:
How should
courts
determine
which
weapons
the
Second
Amendment
guarantees
individuals
the right
to use
for
self-
defense?
This
question
is likely
to become
increasingly
important
to
courts
as
weaponry
becomes
more
sophisticated
and
both
assault
weapons
and
bans
on
assault
weapons
become
more
popular.
This
Article
examines
the
"common
use"
test established
in
Heller
and
the
attempted
application
of that
test
by
lower
courts.
That
test
asks
whether
the
weapon
at issue
is in
common
use at
the
time
the case
is
decided.
5
This
test
is not
easy
to apply
or desirable
in
the
modern
era of
weaponry,
nor
does
precedent
or the
Second
Amendment
Right
to Carry
Arms
(I):
Judicial
Tradition
and
the
Scope
of "Bearing
Arms"
for
Self-Defense,
61 AM.
U. L.
REV.
585 (2012);
Jordan
E. Pratt,
A
First
Amendment-Inspired
Approach
to Heller's
"Schools"
and
"Government
Buildings,"
92
NEB.
L. REV.
537
(2014);
see
also
Jonathan
Meltzer,
Note,
Open
Carry
for
All: Heller
and
Our Nineteenth-Century
Second
Amendment,
123
YALE
L.J.
1486,
1488
(2014)
("The most consequential cases in defining the contours of the Second Amendment,
however,
relate
to
the right
to
carry
firearms
outside
the
home.").
4.
See,
e.g., Peruta,
742 F.3d
at
1167-68
(noting
that
the
courts
of appeals
"have
grappled
with
varying
sliding-scale
and
tiered-scrutiny
approaches,
agreeing
as
a general
matter
that
'the level
of
scrutiny
applied
to gun
control
regulations
depends
on
the
regulation's
burden
on
the Second
Amendment
right
to keep
and
bear
arms,"'
but also
noting
that
"an
alternative
approach
for the
most
severe
cases
...
[where]
...[a]
law
effect[s]
a 'destruction
of
the right'
rather
than
merely
burdening
it");
Heller
v. D.C.,
670
F.3d
1244,
1271
(D.C.
Cir. 2011)
(Kavanaugh,
J., dissenting)
("In
my
view,
Heller
and
McDonald
leave
little
doubt
that
courts
are
to assess
gun
bans
and
regulations
based
on text,
history,
and
tradition,
not
by
a balancing
test
such
as strict
or
intermediate
scrutiny.");
Ivan
E.
Bodensteiner,
Scope
of
the Second
Amendment
Right-Post-Heller
Standard
of Review,
41 U.
TOL.
L. REV.
43
(2009);
Lawrence
Rosenthal
& Joyce
Lee
Malcolm,
McDonald
v.
Chicago:
Which
Standard
of
Scrutiny
Should
Apply
to Gun
Control
Laws?,
105 Nw.
U.
L. REV.
437
(2011);
Stacey
L.
Sobel,
The
Tsunami
of
Legal
Uncertainty:
What's
A
Court
to Do
Post-McDonald?,
21 CORNELL
J.L.
& PUB.
POL'Y
489
(2012);
Michael
J. Habib,
The
Second
Amendment
Standard
of
Review:
The Quintessential
Clean-Slate
for
Sliding-Scale
Scrutiny,
ADMIN.
& REG.
L. NEWS,
Summer
2012,
at 13;
Ryan
L.
Card,
Note,
An Opinion
Without
Standards:
The
Supreme
Court's
Refusal
to
Adopt
A
Standard
of
Constitutional
Review
in District
of
Columbia
v. Heller
Will Likely
Cause
Headaches
for
Future
Judicial
Review
of Gun-Control
Regulations,
23 BYU
J.
PUB. L.
259
(2009);
Andrew
Peace,
Comment,
A Snowball's
Chance
in Heller:
Why
Decastro's
Substantial
Burden
Standard
is
Unlikely
to Survive,
54
B.C.L.
REV.
ELECTRONIC
SUPPLEMENT
175 (2013),
available
at
lawdigitalcommons.be.edulbclr/vol54/
iss6/14.
5.
See Heller,
554
U.S.
at 624-25.

TENNESSEE LAW REVIEW
Amendment's
text
require
it. Indeed,
lower
courts
have
already
been
shirking
the
common
use test rather
than
following
it to its
logical-
and disturbing-conclusions that lead to both over-protecting and
under-protecting
Second Amendment rights.
6
This Article proposes
an alternative
test that calls for
courts to objectively examine
whether the weapon at issue is a reasonable weapon for self-defense.
This inquiry looks at the weapon's usefulness in a self-defense
situation, its potential dangerousness to innocent bystanders, and
the likelihood that the weapon will be employed for illegal purposes.
Although this test is
not perfect, it would protect
the core right of
armed self-defense recognized in Heller
7
while allowing regulation of
the
most dangerous
weapons.
This Article begins in Part II with an overview of the growing
popularity of assault weapons and large capacity magazines and
government efforts to ban these weapons. Part III summarizes the
Heller decision and the common use test it describes for determining
which arms the Second Amendment protects. Part III also describes
the analytical framework courts have settled on for analyzing
Second Amendment
claims since Heller
was decided. Part IV
describes how courts have struggled to apply the common use test
and how these struggles illustrate fundamental problems with that
6. See infra Part V.
7. See Heller, 554 U.S. at 599 (recognizing self-defense as "the central
component
of the
right"
to
keep and
bear
arms
in the
Second
Amendment).
Of course,
the validity
of the central holding of Heller-that
the Second Amendment protects
an
individual right separate
from service in a militia-has been
and continues to be the
subject
of rigorous scholarly debate. See,
e.g., Saul Cornell, Originalism on
Trial: The
Use and Abuse of
History in District of Columbia v. Heller,
69 OHIO ST. L.J. 625, 630
(2008) ("Scalia's use of historical
texts is entirely arbitrary and
result oriented.
Atypical texts
that support Scalia . . .are
pronounced to be influential, while
generally influential texts
...are dismissed as unrepresentative.
Such an approach
is
intellectually
dishonest and suggests
that Justice Scalia's brand of plain-meaning
originalism is little more than a smoke screen for his own political agenda.") (citation
omitted); David B. Kopel, The Natural
Right of Self-Defense: Heller's
Lesson for the
World, 59 SYRACUSE L. REV. 235 (2008) (praising Heller's recognition of the Second
Amendment as codifying a pre-existing right and critiquing the dissenting opinions);
see also McDonald
v. City of Chi., 561 U.S. 742,
914 (2010) (Breyer, J., dissenting)
(collecting articles
critiquing
Heller); William G. Merkel,
The District of Columbia v.
Heller and Antonin Scalia's Perverse
Sense of Originalism, 13 LEWIS
& CLARK L.
REV. 349, 349 (2009) ("The majority holding-that the Second Amendment was
originally understood to protect the right to possess any commonly held weapon for
purposes unrelated
to militia service such as
self-defense and hunting-requires
misreading, misunderstanding,
or ignoring the bulk
of relevant evidence . . ..").
Although this debate is surely an important one, this Article assumes the validity
and ongoing
vitality of Heller's
individual right holding.
234
[Vol.
83:231

2015] SECOND AMENDMENT "TYPE OF WEAPON"ANALYSIS
235
test. Part
V examines five
of the most fundamental
problems
with
the common use test, discusses alternatives to the common
use test
proposed in scholarship, and proposes an alternative test based on
reasonable self-defense.
I.
TYPES OF WEAPONS -
A BREWING CONTROVERSY
Over
the last few decades, the
weaponry available to civilians
has become more sophisticated and deadly. Recently-particularly
since the 2012 shooting at Sandy Hook Elementary School-activists
and legislators have been increasingly calling for-and in some cases
enacting-new restrictions on large capacity ammunition
magazines
8
and assault weapons. 9 These trends set the stage for
8. See Large Capacity
Ammunition Magazines Policy
Summary, LAW CTR. To
PREVENT
GUN VIOLENCE (May 31, 2013),
smartgunlaws.org/large-capacity-
ammunition-magazines-policy-summary/ (defining "large capacity" magazines as
magazines with a capacity of more than ten rounds of ammunition). Ammunition
magazines are containers that hold ammunition cartridges and feed them into a
firearm. See OXFORD UNIVERSITY PRESS, THE OXFORD AMERICAN DICTIONARY AND
THESAURUS 900 (2003). The "capacity" of a magazine refers to the number of
cartridges a magazine can hold at one time. Large capacity ammunition magazines
are generally considered
by most laws to be those larger than
ten rounds, but some
laws
set a higher number. See LAW
CTR. TO PREVENT GUN VIOLENCE,
supra.
9. See Brad Plumer, Everything You Need to Know About the Assault Weapons
Ban, in One Post, WASH. POST (Dec. 17, 2012), www.washingtonpost.com/news/
wonkblog/wp/2012/12/17/everything-you-need-to-know-about-banning-assault-
weapons-in-one-post/. Some gun rights enthusiasts take issue with the phrases
"assault weapons" and "large capacity ammunition magazines" calling them
"pejorative."
See, e.g., Memorandum in
Support of Plaintiffs' Motion for
Summary
Judgment at 7, Shew
v. Malloy, 994 F. Supp. 2d 234
(D. Conn. Jan. 30, 2014) (No.
3:13-cv-00739), 2013 WL 4511019
("The Act bans standard magazines
in common use
that
it calls
'large capacity
magazines
.
..);
Petition
for Writ
of Certiorari
at n.3,
Silveira v. Lokyer, 540 U.S.
1046 (2003) (No. 03-51), 2003 WL
23194550 ("The Court
should
be aware that the pejorative expression
'assault weapon' is used
by anti-
firearm activists
to frighten and mislead, not to inform.").
The issue about the
definition of "assault weapons" stems
from the way certain assault
rifles modeled on
military rifles have been marketed to civilians. This issue is discussed further below
in Part IIA and in note 19,
infra. For clarity, this Article will
use the phrase "assault
weapons"
to refer to guns that were deemed
assault weapons under the now-defunct
federal assault weapons
ban or are generally considered
assault weapons by bans
that currently
exist in some
states.
The "large capacity ammunition magazine" issue is more a dispute over
semantics. Gun rights supporters
dislike the phrase "large
capacity" because it
implies that these magazines are somehow out of the ordinary and therefore not
protected by the Second Amendment under the "common use" test. As discussed
below in Part V, this kind of dispute highlights the flawed nature of the inquiry that

TENNESSEE
LAW
REVIEW
legal clashes
that will
force
courts
to carefully
examine
the issue
of
what
types of
weapons
are protected
by
the Second
Amendment.
A.
The Proliferation
of Assault
Weapons
Although
fully
automatic
and
semi-automaticO
firearms
became
popular
in
the
American
military
as early
as
World
War
I,11 the
most
common
weapons
on the
civilian
market
in the
twentieth
century
up
until
the 1980s
bore
little
resemblance
to
those
used
on
the
battlefield.
For example,
although
semi-automatic
handguns
were
used
by the
military
as early
as
1911,12
revolvers
dominated
the
American
handgun
market
as recently
as 1989.13
The
1980s
marked
a
shift
in the
gun
industry
toward
the
manufacture
and marketing
of civilian
versions
of military
firearms.
For
example,
the
nine
millimeter
("9mm")
semi-automatic
pistol
was
widely
marketed
to
the domestic
population
at
the same
time
it
was
the test
requires.
We
would be
better off
disputing
whether
a given
magazine
size is
actually
reasonable
for self-defense
than whether
it is subjectively
"large."
10.
Automatic
weapons
continuously
fire bullets
while
the
trigger
is depressed
(until
the
available
rounds
are
expended),
while
semi-automatic
weapons
fire
only
one bullet
each
time
the trigger
is depressed.
See
Jim
Supica,
A Brief
History
of
Firearms,
NAT. RIFLE
ASS'N,
www.nramuseum.org/gun-info-research/a-brief-
history-of-firearms.aspx
(last
visited
Dec. 23,
2015). Single-shot
guns (guns
that
are
neither
automatic
nor semi-automatic)
require
some
action
by the
user in order
to
load
a new
bullet
into
the
chamber
each
time
the
gun
is
fired.
See
Adam
Weinstein,
A Non-Gun-Owner's
Guide
to Guns,
MOTHER
JONES
(Dec.
21, 2012,
7:01
AM)
www.motherjones.com/politics/2012/12/semi-automatic-gun-assault-weapon-
definitions.
For
example,
a traditional
single-action
revolver
requires
the user to
"cock"
or
pull back
the
hammer
on the
back
of the
gun,
which
rotates
the
cylinder
so
as
to line up
a new
cartridge
between
the hammer
and the
barrel, and
then
to
release the
hammer by
pulling a trigger.
See Tom
Harris,
How Revolvers
Work, How
STUFF
WORKS
(Mar.
7, 2002), science.howstuffworks.com/revolver.htm.
11.
See,
e.g., STEPHEN
BULL,
WORLD
WAR
I TRENCH
WARFARE
(1)
1914-16,
at
11-12
(2002); Scott
Engen,
The History
of
the 1911
Pistol, BROWNING
(Jan. 24,
2011),
www.browning.com/library/infonews/detail.asp?ID=301.
Notably,
the first
well-
functioning
"machine
gun"
was invented
much
earlier,
during
the Civil
War in
1862
by Richard
Gatling.
See
JULIA KELLER,
MR. GATLING'S
TERRIBLE
MARVEL
1, 5
(2008).
12.
See,
e.g.,
M-1911
Pistol
History,
M-1911
PISTOLS
ORG.,
www.ml911.org/fullhistory.htm
(last
visited Dec.
23, 2015).
13. See
VIOLENCE
POLICY
CTR., THE
MILITARIZATION
OF THE
U.S. CIVILIAN
FIREARMS
MARKET
14
(2011),
www.vpc.org/studies/militarization.pdf
[hereinafter
VIOLENCE
POLICY
CTR.]; see
also
M.D. Johnson,
The
Trend
Toward
Autoloaders,
in THE
GUN
DIGEST
BOOK
OF
GUNS
FOR
PERSONAL
SELF
DEFENSE
36
(Kevin
Michalowski
ed., 2004)
(noting
the
trend
in the
1980s
of
police
departments
and
civilians switching
from revolvers
to semi-automatic
handguns).
236
[Vol.
83:231

2015] SECOND
AMENDMENT "TYPE
OF WEAPON" ANALYSIS 237
becoming the standard
military side-arm.
14
Eventually, the 9mm
and similar
semi-automatic pistols
displaced the revolver as the
most popular type of handgun on the civilian market. 15
The gun
industry employed a similar
strategy
in the market
for
long guns.
Beginning in the 1980s,
the industry began to promote
semi-automatic versions of assault rifles previously only marketed to
the military.1
6
For example, the M-16, an assault rifle used by the
military, was marketed to civilians as the AR-15.17 The main
difference between the military
versions of these firearms
and their
civilian counterparts was
the ability to fire in fully
automatic
mode.
18
While the M-16 and similar military assault rifles usually
have a small lever that
allows the user to switch between
semi-
automatic and fully automatic
mode, their civilian counterparts
do
not and are restricted to firing only in semi-automatic mode.
19
The significance of this difference is hotly debated
20
but both
sides agree that-other than the ability to fire in fully automatic
mode-these civilian guns have all the same features of their
14. VIOLENCE POLICY CTR., supra note 13, at 14-16.
15. See id.
16. See TOM DIAZ, THE
LAST GUN 159-60 (2013). The heavy
promotion of these
rifles and other military firearms was likely motivated, at least in part, by declining
handgun sales. See id. at 160.
17. See id. at 159-60; VIOLENCE POLICY CTR., supra note 13, at 25, 29.
Originally the AR-15 was sold under a patent held by Colt Industries. DIAZ, supra
note 16, at
159-60. Once that patent expired,
numerous other manufacturers began
selling similar guns, including
the M&P15, which was used
by James Holmes in the
2012 Aurora, Colorado movie theatre shooting. Id. at 144-45, 160.
18. See id. at 157-58.
19. Id. at 157.
20. This is the primary dispute over the use of the phrase "assault weapons."
Pro-gun activists argue that "assault weapons" is a purely political term and that the
phrase "assault rifles" should only be understood to refer to long guns capable of
firing in fully automatic mode. See, e.g., Bruce H. Kobayashi & Joseph E. Olson, In
Re 101 California
Street: A Legal and Economic Analysis
of Strict Liability for the
Manufacture and Sale of "Assault Weapons," 8 STAN. L. & POLY REV. 41, 42-43
(1997) ("Prior to 1989, the term 'assault weapon' did not exist in the lexicon of
firearms. It is a political
term, developed by anti-gun publicists
to expand the
category
of 'assault rifles' so as to allow
an attack on as many additional firearms
as
possible on the basis of undefined 'evil' appearance."); David B. Kopel, Rational Basis
Analysis of "Assault Weapon" Prohibition, 20 J. CONTEMP. L. 381, 387 (1994) ("No
'assault rifle' (by
Defense Intelligence
Agency definition)
is an 'assault
weapon'
because all 'assault rifles'
are automatic, while no 'assault
weapons' are automatic.
'Assault rifles' are used by the military, whereas no 'assault weapon' is used by the
military. 'Assault rifles' are all rifles, but 'assault weapons' include semiautomatic
rifles,
semiautomatic
shotguns,
revolver-action
shotguns,
semiautomatic
handguns,
and semiautomatic airguns.").

TENNESSEE
LAW
REVIEW
military
counterparts.
2 1
Both sides
also seem to agree that
these
guns
have
become
more
popular
in recent
years.
22
This rise in popularity-coupled
with the
use of assault weapons
in many high
profile mass shootings-has
put these guns in the
crosshairs of legislators,
setting up a clash in the courts
to settle
whether (and/or
to what extent)
assault weapons are protected
by
the
Second Amendment.
B. The
Renewed Popularity Of
Assault Weapon Bans
Assault weapon
bans in
the United States
have generally
worked
in
one of
three
ways:
they
ban
a list
of predetermined
gun
models,
ban guns with a certain
number of specified features,
or ban guns
based on some combination
of both.23 Laws using
a "feature based"
test
typically look to whether the
gun has features that are
common
in
civilian models of military
weapons, such as a telescopic
or
"folding"
stock,
a pistol grip protruding
unusually far beneath
the
action
of the weapon, or a barrel
capable of accepting
a flash
suppressor.
24
Such
bans
prohibit
many
of
the military-style
rifles,
discussed above,
that became popular beginning
in the 1980s.
21.
See DIAZ, supra note 16,
at 156 (noting that other than the
ability to fire in
fully automatic
mode, civilian assault rifles
"function identically" to their military
counterparts);
Liz
Klimas, So What
Is an Assault Rifle'
Really? We
Look at the
Definitions
and
How
the Term
Is 'Demonized,'THE
BLAZE
(Jan.
11, 2013,
10:22
AM),
www.theblaze.com/stories/2013/01/11/so-what-is-an-assault-rifle-really-we-
look-at-the-definitions-and-how-the-term-is-demonized/
("[T]he
only difference
[between military
and civilian assault rifles]
is that one is fully automatic and
the
other is semi-automatic.").
22. See
VIOLENCE POLICY
CTR., supra
note 13, at 29, 40;
see also Brief
for
Appellants at 46,
Heller v. D.C., 670 F.3d 1244 (D.C.
Cir. 2011) (No. 10-7036) (citing
evidence from the district court
record indicating that "[slome two million
AR-15 type
rifles are in
civilian hands"); Justin
Peters, How
Many Assault Weapons
Are There in
America?
How Much
Would It Cost the
Government To
Buy Them Back?,
SLATE (Dec.
20, 2012),
www.slate.com/blogs/crime/2012/12/20/assault
rifle_statshow_
manyassault-rifles
arethereinamerica.html (estimating
that there may be as
many as 3.75 million
AR-15s in the United
States).
23.
See, e.g.,
Brian Roth,
Comment,
Reconsidering
a Federal
Assault
Weapons
Ban in
the
Wake of the
Aurora, Oak
Creek, and Portland
Shootings:
Is It
Constitutional
in the
Post-Heller
Era?, 37
NOVA L. REv.
405, 413-14
(2013).
24.
See, e.g.,
id.; see also
Eugene Volokh,
Implementing
the
Right to
Keep and
Bear
Arms for Self-Defense:
An Analytical
Framework and
a Research Agenda,
56
UCLA L. REV.
1443, 1484 (2009) (noting that
assault weapons bans "often focus
on
features
... such
as folding
stocks,
pistol grips,
bayonet
mounts,
flash
suppressors,
or (for assault
handguns
but not assault rifles)
magazines that
attach outside
the
pistol grip or
barrel shrouds
that can
be used as hand-holds.").
238[Vol.
83:231

2015] SECOND AMENDMENT
"TYPE OF WEAPON" ANALYSIS
239
The first modern assault
weapon ban in the United
States was
passed in California in 1989 in response to a series of high-profile
shootings there in which
gunmen used assault weapons.
2 5
Other
states followed suit, and by 1994, five states and several
local
governments
had
passed
some
form
of assault
weapon
ban.
2 6
Then,
in 1994, Congress enacted a federal ban on assault weapons and
large capacity ammunition magazines.
27
The ban had a "sunset"
provision under which it would expire in ten years if not renewed by
Congress.
28
During the time the ban
was in effect, two additional
states passed
some version of their own
assault weapon ban.
29
The
federal assault
weapon ban expired
in 2004, ten years after
its
effective
date pursuant to its sunset
provision.
30
During the years
between the federal assault
weapon ban's expiration
in 2004 and
2012, no other states adopted new assault weapon prohibitions.
At the end of 2012, the country's focus turned back to assault
weapons and large capacity
ammunition magazines after
the Sandy
Hook Elementary
School shooting in
Newtown, Connecticut.
3
1 The
25. See Daniel Abrams, Ending the Other Arms Race: An Argument for a Ban
on Assault Weapons, 10 YALE L. & POL'Y REV. 488, 489 (1992); Carl Ingram, Assault
Gun Ban Wins Final Vote: Deukmejian's
Promised Approval Would
Make It 1st Such
U.S. Law, L.A.
TIMES,
May 19, 1989, at 1, 27, available
at articles.latimes.com/
1989-05-19/news/mn-112_1_assault-weapons-ban-military-style-assault-types-of-
semiautomatic-rifles ("While
the [California assault weapons
ban] legislation was
announced
in December, it was the Jan.
17 murders of five Southeast Asian
refugee
children in a Stockton
schoolyard that provided the emotional
ingredient required to
advance
the bill
and gain
the
support
of [California
Governor
George]
Deukmejian,
long an opponent of new controls on guns."). West Virginia had a law prior to
California's
that regulated assault weapons, but
that law was "of limited utility since
it did not even define the term 'assault weapon."' Robert A. O'Hare, Jr. & Jorge
Pedreira, An Uncertain Right: The Second Amendment and the Assault Weapon
Legislation Controversy,
66 ST. JOHN'S L.
REV. 179, 196 (1992).
26. LEGAL CMTY. AGAINST VIOLENCE, BANNING ASSAULT WEAPONS-A LEGAL
PRIMER FOR
STATE AND LOCAL ACTION 3
(2004), smartgunlaws.org/wp-
content/uploads/2012/05/Banning-Assault
WeaponsA -LegalPrimer_8.05_entire.pd
f [hereinafter
LEGAL CMTY. AGAINST VIOLENCE];
see also Abrams, supra note
25, at
489 (noting that as
of 1992 "[o]ver thirty major cities"
had enacted assault weapons
laws).
27. Violent Crime Control and
Law Enforcement Act of 1994,
Pub. L. No. 103-
322,
§§ 110101,
110103
Stat.
1796 (1994).
28. Violent Crime Control
and Law Enforcement Act
of 1994 § 110105(2).
29. See LEGAL CMTY. AGAINST VIOLENCE, supra note 26, at 3.
30. See, e.g., Jill
Lawrence, Federal Ban on Assault
Weapons Expires, USA
TODAY (Sept. 14, 2004, 12:03 AM), usatoday30.usatoday.com/news/washington/
2004-09-12-weapons-banx.htm.
31. See N.Y. TIMES, State Gun Laws Enacted in the Year After Newtown, Dec.
10, 2013, at A20, www.nytimes.com/interactive/2013/12/10/us/state-gun-laws-

TENNESSEE LAW REVIEW
Sandy
Hook gunman
killed twenty
elementary
school students,
seven
adults,
and
himself
primarily
using
a .223
Bushmaster
rifle,
32
which
is a variation
on the AR-15.33
The
gunman
also used
large
capacity ammunition
magazines.
34
The
Newtown tragedy
led to
a
nationwide push for
stronger gun control laws,
including bans on
assault
weapons
and large
capacity
ammunition
magazines.
35
Although
higher profile
efforts at the
federal level
have failed to
revive the defunct
national assault weapon ban,
36
several states
passed
laws either strengthening
existing bans on assault
weapons
and
large
capacity
ammunition
magazines
or enacting
new
ones.
3
7
One
thing the debates at both
the state and federal levels
on these
issues
had in common (whether
those debates ended in new
laws or
not) was
that opponents
and supporters
of these
proposals hotly
debated their
constitutionality. For example,
one legislator in
California called
a proposed bill that
would have expanded
California's existing
assault weapons ban
an attempt to "erase the
Second Amendment."
38
Proponents of the
bill to renew the federal
enacted-in-the-year-since-newtown.html.
32. James
Barron, Pupils
Were All Shot
Multiple Times with
a Semiautomatic,
Officials Say, N.Y. TIMES, Dec.
15, 2012, at 1, 27, www.nytimes.com/2012/12/
16/nyregion/gunman-kills-20-children-at-school-in-connecticut-28-dead-in-
all.html?_r=0. The gunman
killed his own mother at home
prior to going to the
school and
killing twenty
children and
six school employees.
Id. at
27.
33. See Lee Ferran
& Shushannah
Walshe, Newtown
Massacre:
What Is a
Bushmaster
.223?, ABC
NEWS (Dec. 17, 2012),
abcnews.go.com/Blotter/newtow
n-massacre-bushmaster-223/story?id=18000884.
34.
See Matt Ferner,
Adam Lanza,
Sandy Hook Shooter,
Used High-Capacity
Magazines
From Colorado's Magpul Industries,
HUFFINGTON POsT (Nov.
26, 2013,
2:46 PM), www.huffingtonpost.com/2013/11/26/adam-lanza-sandy-hook-maga
zines-magpulnA4344175.html.
35.
See, e.g.,
Josh Blackman
& Shelby
Baird,
The Shooting
Cycle,
46 CONN. L.
REV.
1513 (2014) (noting
the sharp increase
in support
for a federal assault
weapons
ban and
other gun
laws following
the Newtown
shooting).
36.
Ed O'Keefe,
Gun Background
Check
Compromise,
Assault
Weapon
Ban Fail
in Senate,
WASH. POST,
Apr.
17, 2013, www.washingtonpost.com/blogs/post-
politics/wp/2013/04/17/senate-to-vote-on-amendments-to-gun-bill-with-background-
check-plan-in-doubt/.
37.
See
N.Y.
TIMES,
supra
note
31,
at
A20.
38. Awr
Hawkins,
CA
Republican:
Assault
Weapons'
Ban
'Erases'
Second
Amendment,
BREITBART
(Oct.
7, 2013),
www.breitbart.com/Big-Government/
2013/10/07/Pending-CA-Assault-Weapons-Ban-Erases-The-Second-Amendment.
Indeed,
the bill that
the legislator was
referring to, SB
374, was ultimately
vetoed by
the governor
because the
governor did not
believe that the
"bill's blanket ban
on
semi-automatic
rifles would reduce
criminal activity
or enhance public
safety enough
to warrant
this infringement
on gun owners'
rights." See
Veto Message from
Jerry
Brown, Governor,
to the Members
of the Cal. State
Senate (Oct.
11, 2013), available
[Vol.
83:231
240

2015] SECOND AMENDMENT "TYPE OF WEAPON" ANALYSIS 241
assault weapons ban argued that
it
was consistent with the Second
Amendment,
with one senator
noting that "[t]here
are reasonable
limits on each [constitutional] amendment" and another arguing
that "[i]t is hard to
imagine that it would [not] be
a violation of the
First Amendment for somebody to yell fire in a crowded theater but
[that it would be] a violation of the Second Amendment to prevent
somebody from bringing
a hundred-round magazine
into a crowded
theater .. .."39 Even the bill's stated purpose included an implicit
argument for its constitutionality under Heller, stating that the bill
was intended "[t]o regulate assault weapons, to ensure that the right
to keep and
bear arms is not
unlimited, and
for other purposes."
40
The series of new laws
that did pass at the state
and local level
set the stage for court battles over the scope of the Second
Amendment's protection
for different types of guns
and magazines
between those governments and proponents of expanded gun rights.
II. POST-HELLER SECOND
AMENDMENT DOCTRINE-HELLER,
THE
COMMON USE TEST,
AND THE TWO-STEP TEST
The
decision
in
Heller
was
groundbreaking
in
that
it
recognized,
for the first time, that the Second Amendment protects an individual
right to bear arms for self-defense unconnected to militia service.
However, the opinion was somewhat vague on what the proper the
method of analysis was for Second Amendment claims. Lower courts
have filled in some of the gap, with most settling on a version of a
two-part analysis: (1) asking whether the conduct at issue is
protected by the Second Amendment and, if it is, (2) selecting and
applying
an
appropriate
level
of
scrutiny.
41
at gov.ca.gov/docs/SB_374_2013_VetoMessage.pdf.
39. Nicole Flatow, Senators Destroy Ted Cruz's Argument Against the Assault
Weapons Ban, THINK
PROGRESS (Mar. 14, 2014, 1:00
PM), thinkprogress.org/
justice/2013/03/14/1720351/senators-destroy-ted-cruzs-argument-against-the-assault-
weapons-ban/.
40.
S. 150,
113th
Cong.
(1st Sess.
2013)
(emphasis
added);
cf.
D.C.
v.
Heller,
554
U.S. 570, 626 (2008) ("Like most
rights, the right secured by the
Second
Amendment
is not unlimited.").
41. See
infra Part
V.

TENNESSEE LAW REVIEW
A. District
of
Columbia
v.
Heller
1. Embracing
an Individual
Right
In Heller, the plaintiff challenged a set of laws in the District of
Columbia that effectively
banned handguns in
the home.
42
The
Supreme Court held,
in a five to four decision,
that these laws
violated the Second Amendment. The Heller decision marked a
watershed moment in courts' understanding of the Second
Amendment.
Prior to that decision, courts
had generally agreed that
the
Second Amendment only protected
a "collective right"
to own
firearms
for the
purpose
of
service
in a well-regulated
militia.
43
Heller emphatically rejected this "collective right" view, instead
finding that the
Second Amendment protected
an individual right to
use firearms for self-defense.
44
Although the Court acknowledged
that the framers' purpose in including the Second Amendment in the
Bill of Rights may have been tied to militia service, the Court found
that the framers' method of accomplishing that purpose was to codify
a pre-existing
right to keep and bear arms.
4 5
The Court announced
that the pre-existing right's "central component" was the right to use
arms
for self-defense.
46
The Court reached this conclusion first by parsing the text of the
Second Amendment
and then through
a long historical analysis that
examined
the public understanding of
the "right to bear arms" prior
to, contemporaneous
with,
and in the decades following
the Second
Amendment's adoption.
47
The analysis relied
heavily on
contemporary commentators,
news accounts,
and case law
interpreting analogous
state constitutional
provisions.
48
42. Heller,
554 U.S. at 574-76. The plaintiff
also challenged a law requiring
guns kept in the home to
be completely disassembled and unloaded
when not in use.
Id.
43. See, e.g., Allen
Rostron, Justice
Breyer's Triumph
in the Third
Battle over
the Second Amendment, 80 GEO.
WASH. L. REV. 703, 708 (2012)
("For most of the
twentieth century,
the meaning
of the Second
Amendment seemed
well settled.
Courts consistently
read it as guaranteeing a
right to have and use guns only
for
purposes of organized state militia activity."); see also Reva B. Siegel, Heller &
Originalism's Dead Hand-In Theory and Practice, 56 UCLA L. REV. 1399, 1412-13
(2009) (noting that
Heller represented the first time
in history the Supreme Court
had struck down a law
as violation of the Second Amendment).
44. Heller, 554 U.S. at 599.
45. See id.
46.
Id.
47. Id. at 576-619.
48. Id. at 602-19.
242
[Vol.
83:231

2015] SECOND AMENDMENT "TYPE OF WEAPON" ANALYSIS 243
Once the Court found that such a right existed, it had no trouble
finding that the District of Columbia's handgun ban violated that
right.
49
However, in contrast to the lengthy discussion of whether
the right
at issue was an individual
one or a "collective"
one (which
was also the primary
subject of Justice Stevens'
dissent), the Court
said relatively little
about the method of analysis
that was to be
applied
in
future
Second
Amendment
claims.
It
did
not,
for
example,
lay out
a particular level of scrutiny
to be applied in Second
Amendment cases.
Although the majority rejected
the interest-
balancing test resembling
intermediate scrutiny
proposed by Justice
Breyer's dissent, it
did not lay out its own test
but instead simply
noted that the District's scheme would fail "[u]nder any of the
standards of scrutiny that we have applied to enumerated
constitutional rights."
5 0
The Court did acknowledge that the Second
Amendment right it recognized was "not unlimited" and laid out a
few categories of regulation
that were "longstanding"
and therefore
"presumptively
lawful" under the Second Amendment, such as
laws
prohibiting felons from owning firearms.
51
However, even that list
came with
the
caveat that
it was "not
exhaustive."
52
The Court did
not explain
its methodology
for creating
the list.
5
3
2. The "Common Use" Test
The Heller Court also spilled little ink on the question of what
types of "arms"
the Second
Amendment
protects. In
discussing the
text of the Second Amendment,
the Court endorsed
the seemingly
broad view
that the term
"arms" encompassed
any
"weapo[n] of
offence, or
armour of defence"
whether
or not such an
arm
was the
type used
in war.
5 4
The Court
also sharply dismissed
the idea that
49. Id. at 628-29.
50. Id. at
628. The Court also struck
down the District of Columbia's
requirement that guns be
kept completely disassembled and
unloaded
when not in
use,
finding that the
requirement made
"it impossible
for citizens to use
[firearms]
for the core
lawful purpose
of self-defense and
[was therefore]
unconstitutional."
Id.
at 630.
51. Id.
at 626-27. The
Court also said
that prohibitions
on firearm ownership
by the mentally
ill, laws forbidding
the carrying
of firearms in sensitive
places such
as
schools and government
buildings,
and laws
imposing conditions
and
qualifications
on the
commercial sale
of arms were presumptively
constitutional.
Id.
52. Id. at 627 n.26.
53.
See id. at
721 (Breyer,
J., dissenting)
("I
am similarly
puzzled
by the
majority's
list, in Part
III of its opinion,
of provisions that
in its view would
survive
Second
Amendment
scrutiny.
. . .Why
these? Is
it that similar
restrictions
existed in
the
late 18th century?
The majority
fails to cite
any colonial analogues.").
54. Id. at 581.

TENNESSEE LAW REVIEW
the
Second Amendment only
protects the particular arms
in
existence
at the time
of the Amendment's
adoption,
finding 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."
5 5
After this brief discussion
about the meaning of the
term "arms,"
the types
of arms covered by the Second
Amendment did not come
up in the
Court's extensive historical
analysis, and the issue was
only raised again in a section of the Court's opinion discussing
whether the individual
rights interpretation
of the Second
Amendment conflicted
with any of the Court's
prior holdings.
56
In
that section, the Court
attempted to distinguish
its
individual right
holding from its 1939
holding in United States v.
Miller,
5 7
that a law
prohibiting the transportation
of an unregistered
short-barreled
shotgun
in interstate commerce
did not violate the
Second
Amendment.
5 8
In
Miller, the Court found that
"[i]n the absence of any evidence
tending
to show that
the possession
or use of
a [short-barreled
shotgun]
at this time
has some
reasonable relationship
to
the
preservation or
efficiency of a well regulated
militia, we cannot say
that the Second
Amendment guarantees the
right to keep and bear
such an instrument."
59
The
Heller majority
was mainly
concerned
with refuting
Justice Stevens'
argument
in dissent
that Miller
supported
a collective
right
interpretation
of the
Second
Amendment,
and only
briefly touched on
the "type of weapon"
test
Miller appears to suggest:
Read
in isolation,
Miller's
phrase
"part
of ordinary
military
equipment"
could
mean that only
those weapons
useful
in
warfare are
protected. That
would be
a startling
reading of
the
opinion, since
it would mean
that .
. .
restrictions
on
machineguns
. . .might
be unconstitutional,
machineguns
being
useful
in warfare
in 1939. 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." 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
55. Id. at 582.
56.
Id. at
624-25.
57.
307 U.S.
174
(1939).
58. Id. at 178.
59. Id.
[Vol.
83:231
244

2015] SECOND
AMENDMENT "TYPE
OF WEAPON"ANALYSIS 245
and revolutionary
war
era, [small-arms]
weapons
used by
militiamen
and weapons used
in defense of person and
home
were
one and the same." Indeed,
that is precisely the
way in
which the Second Amendment's operative clause furthers the
purpose
announced in its preface.
We therefore read Miller
to
say only that the Second
Amendment does not protect
those
weapons not typically possessed by law-abiding citizens for
lawful purposes,
such
as short-barreled
shotguns.
60
Thus, in distancing
itself from the "startling
reading" of Miller
that Miller's military
usefulness test would
seem to suggest, the
Court formulated a "common use" test focusing on whether the
weapons at issue are currently in common use for lawful purposes
such as self-defense.
6
e Compared with the
rest of the opinion, the
Court's selection of this test
was based on relatively little
historical
analysis. The
Court simply noted that people
in the militia at the
time of the founding commonly used the personal weapons they
brought
with
them
to
service.
6
2
The Court briefly alluded to the common use test again in the
context of applying the newly recognized individual Second
Amendment right to the District of Columbia's handgun ban, finding
that "[u]nder any of the standards
of scrutiny that we
have applied
to enumerated constitutional rights, banning from the home 'the
most preferred firearm in the nation to "keep" and use for protection
of one's home and family,' would fail constitutional muster."
63
The
Court rejected the District of Columbia's argument that because long
guns were still legal, it could ban handguns:
It is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon. There are many reasons that a citizen
may prefer a handgun for home defense: It is easier to store
in a location that is readily accessible in an emergency; it
cannot easily be redirected or wrestled away by an attacker;
it is easier to use for those without the upper-body strength
60. Heller, 554 U.S. at 624-25 (citations omitted).
61. Id. at 624.
62. Id. at 624-25. Even that assertion is somewhat debatable. Justice Breyer
pointed out in dissent that some
militias at the time of the founding
required specific
types of guns,
not just whatever weapons the
citizens called to serve in the militia
happened to have around.
Id. at 716 (Breyer, J., dissenting) (noting
that some militia
statutes
at the time found handguns "'acceptable'
only for certain special militiamen
(generally, certain
soldiers on horseback), while requiring
muskets or rifles for the
general infantry.").
63. Id. at 628-29 (emphasis added) (citations omitted).

TENNESSEE LAW REVIEW
to
lift and aim a long gun; it
can be pointed at a burglar
with
one hand while the other hand dials the police. Whatever the
reason, handguns are the most popular weapon chosen by
Americans for self-defense
in the home,
and a complete
prohibition
of their
use is
invalid.
64
Again,
the Court simply reiterated
(adding the somewhat
cryptic
introduction
of "it is enough to
note") that handguns are the
most
popular
arm for self-defense purposes.
Interestingly, in making
this
assertion about the popularity of handguns, the Court cited only one
source: the D.C.
Circuit's opinion below.
65
That
opinion, in turn, cites
to a single academic
paper to support that
proposition.
66
That paper
compiled the results of several surveys from 1988 to 1993 in order to
estimate the number of defensive uses of firearms in the United
States during that period.
6 7
However, as the authors of that paper
admit, some of the surveys used to compile these estimates only
asked about handguns while others asked about all guns. Thus the
paper "did not separately establish how many of the [defensive gun
use incidents] involved handguns and how many involved other
types
of
guns."
6 8
This is not to suggest that the Court's conclusion that handguns
are the most
popular weapon for self-defense
was
wrong-it almost
certainly was correct. Rather, the issue is that the Court's cursory
citation to the lower
court's mentioning this study
does not provide
any guidance
about how
the Court was
applying the
"common use"
test to reach the conclusion it did. Did the Court find that handguns
were the most commonly chosen weapon because handguns are the
weapon most
often used in self-defense
situations or simply because
Americans most commonly purchase or own handguns for that
64. Id. at 629.
65. Id. at
628-29 (citing
Parker
v. D.C.,
478 F.3d 370,
400 (D.C.
Cir. 2007)).
66. Parker, 478 F.3d at 400 ("Indeed,
the pistol is the most preferred
firearm in
the nation to 'keep' and use for
protection of one's home and family.")
(citing Gary
Kleck & Marc Gertz, Armed
Resistance to Crime: The Prevalence
and Nature of Self-
Defense
with a Gun, 86
J. CRIM. L. & CRIMINOLOGY
150,
182-83 (1995)).
67.
See Gary Kleck & Marc Gertz, Armed
Resistance
to Crime: The Prevalence
and Nature of Self-Defense
with a Gun, 86 J. CRIM.
L. & CRIMINOLOGY 150, 182-84
(1995).
68. Id. at
164. Moreover, the larger conclusions
and methodology of that paper
have been subject to significant
criticism since it was published.
See, e.g., Egon D.
Cohen & Kristina M. Johnson, The Restricted Firearms License: A Proposal to
Preserve
Second
Amendment
Rights
and
Reduce
Gun
Violence
in the
United
States,
31
YALE
L. &
POL'Y
REV.
INTER
ALIA
10,
11-12
&
n.12
(2013),
ylpr.yale.edu/inter-alia/restricted-firearms-license-proposal-preserve-second-
amendment-rights-and-reduce-gun.
246
[Vol.
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2015] SECOND AMENDMENT
"TYPE OF WEAPON"ANALYSIS
247
purpose? Is survey data that is well over a decade old sufficient proof
of today's "common use?" These questions were left unanswered, and
as discussed below, the Court's lack of guidance has been reflected in
lower courts'
unwillingness to deeply
engage in common use
analysis.
69
Justice
Breyer's
dissent
briefly
critiqued
the
"common
use"
test,
noting
that it creates odd
incentives for states:
According
to the majority's reasoning,
if Congress and the
States lift restrictions
on the possession and
use of
machineguns, and people buy machineguns to protect their
homes, the Court will have to reverse course and find that
the Second Amendment does, in fact, protect the individual
self-defense-related right to possess a machinegun. On the
majority's reasoning, if tomorrow someone invents a
particularly
useful,
highly
dangerous
self-defense
weapon,
Congress and the States had better ban it immediately, for
once it becomes popular Congress will no longer possess the
constitutional authority to do so. In essence, the majority
determines what
regulations are permissible
by looking to
see what existing regulations permit. There is no basis for
believing that the Framers intended such circular
reasoning.
7
0
However, Justice Breyer
did not specifically
suggest an
alternative type
of weapon test, despite describing
his own "interest-
balancing" test that he would apply to Second Amendment claims
generally.
7 1
Thus, while
taking a monumental step
in recognizing an
individual Second Amendment right, the Court left lower courts with
little to guide them in analyzing future claims-other than claims
regarding handgun bans identical to the one in Heller-and even
less guidance on how to decide what weapons are protected by the
Second Amendment. In McDonald
v. City of Chicago,
72
the Court's
only return to
the Second Amendment
since
Heller, the
Court found
69. See infra Part IV.
70. Heller, 554 U.S. at 721 (Breyer, J., dissenting).
71. Justice Breyer proposed that courts apply something in between rational
basis and
strict scrutiny to
Second Amendment
claims-likely
a form of intermediate
scrutiny. Id. at
689-90 (suggesting
that a court
should not "effectively
presume
either constitutionality
(as in rational-basis
review) or unconstitutionality (as
in
strict scrutiny).
Rather [a court
should ask] whether
the statute burdens
a protected
interest in a way or to an extent that is out of proportion to the statute's salutary
effects upon
other important governmental
interests.").
72. 561 U.S.
742 (2010).

TENNESSEE
LAW
REVIEW
that the Second Amendment
protects a fundamental
right
incorporated against state and local governments but did not provide
any further insight into the appropriate analysis for Second
Amendment
cases
or into the meaning
of the "common
use" test
for
arms
described
in
Heller.
7
3
B. The Two-Step Test
Because the Supreme
Court has not established
a methodology
for analyzing Second
Amendment claims, lower
courts have been
given
a wide
berth to elaborate
on the
scope of the
Second
Amendment right
recognized in Heller. Since
Heller, all of the
federal
courts
of appeal that have
done any in-depth analysis
of the
Second
Amendment have settled
on some form of a two-part
test
that:
(1) asks whether the law at
issue burdens conduct protected
by
the Second Amendment and, if there is such a burden, (2), asks
courts to apply an "appropriate" level of scrutiny given the severity
of
the burden
on
Second
Amendment
rights.
74
Critics of the
two-step test-most of whom
favor broader Second
Amendment rights-prefer
a "scope only"
approach that would
simply ask whether the law burdens the Second Amendment as the
amendment was understood at the time of its ratification.
Proponents of this approach
argue that if a law prohibits
conduct
protected by the Second
Amendment, it should be
struck down
73. See McDonald,
561 U.S. at 750, 767-68,
778.
74. See, e.g.,
Nat'l Rifle Ass'n of Am. v. Bureau
of Alcohol, Tobacco, Firearms,
&
Explosives, 700 F.3d 185,
194 (5th Cir. 2012) (noting that the
two-step approach "has
emerged
as the prevailing approach" and
adopting that approach), cert. denied,
134
S. Ct. 1364 (2014);
United States v. Greeno, 679 F.3d
510, 518 (6th Cir. 2012), cert.
denied, 133 S. Ct.
375 (2012); United
States v. Booker,
644 F.3d 12,
22-26 (1st Cir.
2011);
Heller v. D.C. (Heller
II), 670 F.3d
1244, 1252 (D.C.
Cir. 2011); Ezell v.
City of
Chicago, 651 F.3d 684,
700-04 (7th Cir. 2011); United States
v. Marzzarella, 614
F.3d
85, 89 (3d Cir.
2010); United States
v. Chester,
628 F.3d 673, 680
(4th Cir.
2010); United
States v. Reese,
627 F.3d 792,
800-01 (10th Cir.
2010); see also United
States v. Decastro,
682 F.3d 160,
166-69 (2d Cir.
2012) (adopting
a "substantial
burden"
test where "heightened
scrutiny
is triggered only
by those restrictions
that
(like the complete
prohibition on handguns
struck down in Heller) operate as
a
substantial
burden on the ability of law-abiding
citizens to possess and use
a firearm
for
self-defense (or for other lawful purposes)"),
cert. denied, 133 S. Ct. 838
(2013).
The Eighth and Eleventh Circuits have summarily rejected a few Second
Amendment challenges to federal
prohibitions on certain criminals
possessing
firearms and
on the possession of particularly
dangerous weapons, see, e.g., United
States
v. Bena, 664 F.3d 1180, 1182-85
(8th Cir. 2011); United States v. Rozier,
598
F.3d 768, 770-71
(11th Cir. 2010),
but have not
yet engaged
in
an in-depth
discussion of
the standard
of review for
Second Amendment
cases.
248
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2015] SECOND AMENDMENT "TYPE OF WEAPON"ANALYSIS 249
without resort
to the kind of "interest-balancing"
the Heller majority
expressly
disclaimed.
75
In any case, courts
that have applied the
two-step approach as
well as those
arguing for the "scope only"
approach both largely
agree that the scope inquiry is determined by a historical analysis
that looks at whether
the challenged conduct
was within the scope
that the Second
Amendment was understood
to have at the time it
was ratified
and
for
at least
some
amount
of time
after
ratification.76
"It begins with the pre-ratification 'historical background of the
Second Amendment,' since 'the Second Amendment ...codified a
preexisting right.'
Next, it turns to whatever
sources shed light on
the 'public understanding
[of the Second Amendment]
in the period
after its enactment or ratification,' such as nineteenth-century
judicial
interpretations
and legal
commentary."
7 7
75. See, e.g., Heller II, 670 F.3d at 1271 (Kavanaugh, J., dissenting) ("In my
view, Heller and McDonald leave little doubt that courts are to assess gun bans and
regulations based on text, history, and tradition, not by a balancing test such as
strict or intermediate scrutiny."); Petition for Writ of Certiorari at 24, Woollard v.
Gallagher, 712 F.3d 865 (4th Cir. 2013) (No. 13-42), 2013 WL 3484362, at *24
(complaining that under the two-step approach "many courts simply dispense with
the first step of discerning a right through interpretation, only assuming that a right
(of abstract dimension) is implicated, thus carefully avoiding any holding that the
right has any substantive content. By assuming, rather than finding and thus
defining the right's existence, courts reduce the right to a cypher that cannot
withstand the second step's application, always alleged to be intermediate
scrutiny."),
cert.
denied,
134 S.
Ct. 422
(2013);
see
also
Peruta
v.
Cnty.
of San
Diego,
742 F.3d 1144,
1168
(9th Cir. 2014) (arguing for
using the scope only approach in
the
"most severe
cases" that
involve a "complete
destruction" of
Second Amendment
rights),
vacated and re'g en banc granted,
781 F.3d 1106 (9th Cir. 2015);
cf. Allen
Rostron, supra note 43, at 706-07 ("The lower courts, frustrated by the
indeterminacy of historical inquiry and puzzled by the categorizations suggested by
Justice Scalia,
have steered in other directions.
They have effectively embraced
the
sort of interest-balancing approach that Justice Scalia condemned, adopting an
intermediate scrutiny test and applying it in a way that is highly deferential to
legislative determinations and that leads to all but the most drastic restrictions on
guns being upheld.").
76. See, e.g., Peruta, 742 F.3d at 1150-51; Nat7 Rifle Ass'n of Am., 700 F.3d at
194.
77. Peruta, 742 F.3d at 1151 (citations omitted) (alterations in original)
(quoting D.C. v. Heller, 554 U.S. 570, 592 (2008)). But see Drake v. Filko, 724 F.3d
426, 433-34 (3d Cir. 2013) (noting that prohibitions on the possession of firearms by
felons were found to be "longstanding" by Heller despite the fact that such
prohibitions did not exist until the early twentieth century, and therefore, concluding
that other prohibitions dating to that era could be considered "longstanding" and
presumptively lawful),
cert. denied, 134 S.
Ct. 2134 (2014).

TENNESSEE LAW REVIEW
Once
a court applying the two-step
approach determines whether
the
law at issue burdens or
regulates conduct protected
by the
Second
Amendment,
the court will
then determine
the proper level
of scrutiny
to apply to
the law. The
closer a law comes
to burdening
the "core"
right identified
in Heller-the
right to
possess a firearm
for self-defense
in the
home-the higher
the level
of scrutiny applied
to the law.78
Usually
courts decline
to apply rational
basis scrutiny
79
to a law found
to burden
conduct
protected by
the Second
Amendment (because that
standard was specifically rejected
by the
majority
in Heller)
and instead
will either
apply strict
or
intermediate
scrutiny,
80
depending
on the severity
of the burden
on
Second
Amendment
rights.
8
1
This mode
of analysis has led courts
to apply intermediate
scrutiny
to most gun control laws that
have been reviewed after
Heller, because
most of
these laws
either burden
only conduct
outside the
home or only
regulate the
possession
of firearms by
particular types of
individuals. For example, laws
regulating the
carrying of firearms outside of
the home-probably the most
78. See,
e.g., United States v. Chovan, 735
F.3d 1127, 1138 (9th Cir. 2013)
(citation
omitted) ("[T]he level of scrutiny
should depend on (1) 'how close
the law
comes to the core
of the Second Amendment right,' and
(2) 'the severity of the law's
burden on the right."'); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 93 & 93 n.17
(2d Cir.
2012) ("Although
we have no occasion
to decide what
level of scrutiny
should
apply to laws
that burden the
'core' Second Amendment
protection
identified in
Heller,
we believe that
applying less
than strict scrutiny
when the regulation
does
not burden
the 'core' protection
of self-defense
in the home makes
eminent sense
in
this context and
is in line with the
approach taken
by our sister circuits.")
(collecting
cases), cert denied, 133 S. Ct. 1806 (2013); Ezell v. City of Chi., 651 F.3d 684, 708
(7th
Cir. 2010)
("(A] severe
burden
on the core
Second Amendment
right
of armed
self-defense will require an extremely strong public-interest justification and a close
fit between
the government's
means and its
end. Second, laws
restricting activity
lying closer to
the margins of
the Second Amendment
right, laws
that merely
regulate
rather than restrict,
and modest
burdens on the
right may be more
easily
justified. How
much more easily
depends on the
relative severity
of the burden and
its
proximity
to the
core
of the right.").
79. Rational
basis analysis
places the burden
on the challenger
of a law
to
prove that the law is not rationally
related to a legitimate governmental
interest.
See, e.g.,
16B AM. JUR. 2D Constitutional
Law § 860 (2009).
80. Intermediate
scrutiny
analysis places
the burden on the
government to
show
that
the law
is substantially
related
to
an important
governmental
interest,
while strict scrutiny
places the burden on the government
to show that the law is
narrowly tailored
to serve a compelling
governmental
interest. See,
e.g., id. at §§
861-62.
81.
See, e.g., Ezell,
651 F.3d at 706
("Although the
Supreme Court did
not do so
in either
Heller or McDonald,
the Court
did make it clear
that the deferential
rational-basis standard
is out, and
with it the presumption
of constitutionality.").
250
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AMENDMENT "TYPE OF WEAPON"ANALYSIS
251
prominent issue
in the courts since
Heller-have received
intermediate scrutiny
in three courts of appeals.
8 2
Similarly, every
court of appeals
that has reviewed the
federal prohibition on
domestic violence misdemeanants possessing firearms has upheld
that
law,
applying
some
form
of
intermediate
scrutiny.
83
By
contrast,
the few laws that
have been subjected to
a strict scrutiny analysis
(or some variation thereof) or that have been struck down using the
"scope
only"
approach
have
usually
been complete
bans on
the
possession,
sale, or use
of firearms.
84
IV. THE COMMON USE
TEST APPLIED IN THE
COURTS
Comparatively few courts
have tackled the issue of
what types of
weapons are protected by the Second Amendment. The courts that
have-usually
in the context of lawsuits challenging
bans on assault
weapons and large capacity magazines-hewed to the usual two-step
analysis in analyzing these laws. When applied to type-of-weapon
cases, the analysis
usually asks (1) whether
the type of weapon at
issue is protected
by the Second Amendment
and (2) (assuming the
first step found
some level of protection) what
level of scrutiny a ban
on the type of weapon at issue warrants.
In working through
this analysis, courts
have largely followed a
familiar pattern.
The first step of the two-step
test is where courts
have usually most directly wrestled with the "common use" test. In
stark contrast to the often lengthy historical discussions that
82. See Kachalsky,
701 F.3d at 96-97; Woollard v.
Gallagher, 712 F.3d 865, 876
(4th Cir. 2013), cert. denied, 134 S. Ct. 422 (2013); Drake, 724 F.3d at 436. But see
Peruta, 742 F.3d at 1173-79 (declining to apply intermediate scrutiny and invaliding
a discretionary concealed licensing law using the scope only approach); Moore v.
Madigan, 702 F.3d 933, 941 (7th Cir. 2012) (striking down Illinois' complete ban on
carrying firearms outside the home and noting that "our analysis is not based on
degrees of scrutiny, but on Illinois's failure to justify the most restrictive gun law of
any of the 50 states.").
83.
See,
e.g.,
Chovan,
735
F.3d
at
1138;
United
States
v.
Booker,
644
F.3d
12,
25-26 (1st Cir. 2011); United States v. Chester, 628 F.3d 673, 682-83 (4th Cir. 2010);
United States
v. Skoien, 614 F.3d 638,
641-42 (7th Cir. 2010).
84. See, e.g., Ezell, 651 F.3d at 708-09 (requiring "a more rigorous showing
than [intermediate scrutiny] ..., if not quite 'strict scrutiny"' when reviewing a total
ban on firing ranges in the city of Chicago); Ill. Ass'n of Firearms Retailers v. City of
Chi., 961 F. Supp. 2d 928, 939-40 (N.D. Ill. 2014) (applying a standard of review
higher than intermediate scrutiny for a challenge to a Chicago ordinance banning
virtually all gun sales
in the City); Palmer v. D.C., 59
F. Supp. 3d 173, 182-83 (D.C.
Cir. 2014) (finding that under any level of heightened scrutiny, the District of
Columbia's virtual total ban on carrying firearms outside the home would violate the
Second Amendment).

TENNESSEE
LAW
REVIEW
typically
come
in
the first
step
of Second
Amendment
analysis,
the
application
of the
"common
use"
test by
most
courts
has generally
involved
only
brief
citation
to
statistical
evidence
offered
by the
parties
about
the supposed
prevalence
of
the weapons
at issue.
In
the
second
step,
courts
have
taken
a broader
focus
and
looked
at
such
issues
as the
dangerousness
of
the
banned
weapons,
and other
avenues
available
for
self-defense.
Although
these
issues
would
naturally
come
up
in the
application
of a
level
of scrutiny
(i.e.,
to
show
the government's
need
for the
ban),
courts
have
actually
used
these
considerations
frequently
in selecting
the
appropriate
level
of
scrutiny
(i.e.,
in determining
how
much
the
right
is
burdened).
Through
this
method,
courts
essentially
end
up
determining
the
scope
of
the right
primarily
in the
second
step
rather
than
the
first.
As
demonstrated
in
the
cases
discussed
below,
courts'
unwillingness
to deeply
engage
with
the
common
use
test
and
tendency
to
either
(A)
rationalize
their
results
through
the
second
step
of
the
analysis
or (B)
ignore
the
common
use test
altogether
reflects
the
profound
unworkability
of
the common
use
test
and
its
disconnection
from
the
central
right
recognized
in
Heller.
In
only
one
case
did
the
court
meaningfully
engage
in
a
deep
look
at
the
common
use
test,
and
that
analysis
only
serves
to
underscore
the
test's
problems
when
taken
to its
logical
conclusions.
A.
Heller
II
& NYSRPA-Using
the
Second
Step
to
Fix
the First
Step
In the
most
prominent
case
so
far involving
assault
weapons
and
large
capacity
ammunition
magazines,
Heller
v. District
of Columbia
(Heller
II), the
D.C.
Circuit
upheld
the
District
of Columbia's
bans
on
these
items
in
the face
of a
Second
Amendment
challenge.
8 5
In
determining
whether
the
bans
impinged
on
Second
Amendment
rights,
the
court
found
it "clear
enough
in the
record
that semi-
automatic
rifles
and
magazines
holding
more
than
ten rounds
are
indeed
in
'common
use."'
8 6
To
support
this
conclusion,
the
court
cited
three
statistics:
(1)
1.6 million
AR-15s
have
been
manufactured
since
1986;
(2) in
2007,
AR-15s
accounted
for
5.5
percent
of all
firearms
and
14.4
percent
of
all
rifles
produced
in the
U.S.
for
the
domestic
market;
and
(3)
18%
of all
firearms
owned
by
civilians
in 1994
were
equipped
with
magazines
holding
more
than
ten
rounds,
and
85.
Heller
v.
D.C.
(Heller
II), 670
F.3d
1244,
1247-48
(D.C.
Cir.
2011).
86.
Id.
at
1261.
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OF WEAPON" ANALYSIS
253
approximately
4.7 million more
such magazines were imported
into
the United States between
1995 and 2000.87
The
citation of these facts raises
several questions about
what
the common use test really means. Why is the manufacture of 1.6
million
AR-15s since 1986 significant
when there are over
300
million civilian firearms in circulation in the United States?
88
How
can a firearm that represents less than half of one percent of all
firearms be considered
in "common use"? Of course,
the 1.6 million
figure is probably both
over and under-inclusive
for purposes of this
analysis since some
AR-15s would not qualify as
"assault weapons"
under
Washington
D.C.'s law
8
9
and because
there are other
types of
assault
weapons besides
AR-15s.
As for the second manufacturing
statistic, why
is that relevant to
determining common use? Manufacturing does not necessarily
reflect whether a firearm will ultimately be sold. Moreover, why only
focus
on the year 2007 (four years
prior to the case being
decided)
and why only on domestic manufacturing? Why is the percentage of
rifles
specifically relevant? Is
there some independent
right to
possess commonly used rifles? Finally, even taking all of the figures
at face value, why is 5.5% or even 14.4% significant enough to
constitute
common use? The
magazine figures raise even
more
questions.
Why rely on such dated
figures? Why rely solely on
import
data
when so many firearms
are manufactured domestically?
90
The
court did not answer any
of these questions, but seemed
to
implicitly recognize some of the difficulty with its assertion by noting
87. Id.
88. See, e.g., Don B. Kates & Carlisle Moody, Heller, McDonald, and Murder:
Testing the
More Guns = More Murder Thesis,
39 FORDHAM URB. L.J. 1421, 1445
(2012); Blaire Briody & Maureen Mackey, 19 Unbelievable Facts About Guns in
America, BUSINESS INSIDER (Dec. 19, 2012, 9:53 AM), www.businessinsider.
com/unbelievable-facts-about-guns-in-america-2012-12.
89. The District of Columbia's assault weapons ban, like many others, prohibits
semi-automatic rifles with
one of a list of enumerated features.
D.C. CODE § 7-
2501.01(3A)(A)(i)(IV) (LexisNexis 2001 & Supp. 2015). Gun manufacturers have
responded
to
these
bans
by marketing
"compliant"
versions
of
popular
guns,
including variants on the AR-15, that are different from the ordinary versions of
these
guns
only
in
the
sense
that
they lack
any
of
the banned
features.
See,
e.g.,
M&P Rifles: State Complaint, SMITH & WESSON, www.smith-wesson.com
/webapp/wes/stores/servlet/Category4_750001_750051772659_-1_757784 757784
image (last visited Dec. 25, 2015).
90. See JURGEN BRAUER, SMALL
ARMS SURvEY, THE US FIREARMS
INDUSTRY
PRODUCTION AND SUPPLY 45 (2013), available at www.smallarmssurvey.org/
fileadmin/docs/F-Working-papers/SAS-WP14-US-Firearms-Industry.pdf
(finding that
the number
of firearms produced domestically
was
greater than the number
of
firearms imported into the United States in every year from 1999 through 2010).

TENNESSEE
LAW REVIEW
[
that "based upon the record as it stands [the court] cannot be certain
whether these weapons are commonly used or are useful specifically
for
self-defense or hunting
and therefore whether
the
prohibitions ... meaningfully affect the right to keep and bear
arms."
9
' This statement
is also interesting
in that the court appears
to conflate the
distinction between a
weapon simply being
"commonly
used"
and
being
useful
for
self-defense
or
hunting.
Obviously, these two things
are very different because
a weapon
could be useful for self-defense and be uncommon, or vice versa. The
court did not explore the issue further and declined to resolve the
question, instead assuming that the prohibitions did impinge on
Second Amendment rights and moving on to the next step of the
analysis:
selecting
an
appropriate
level
of scrutiny.
92
In
determining
the
appropriate
level
of
scrutiny,
the
court
relied,
in several ways, on the nature of the banned weapons and
magazines. The court noted that, unlike the law in Heller, the law
here did not prohibit
the possession of "the
quintessential
self-
defense weapon, to wit, the handgun" and that the ban did not
prevent people from owning other "suitable and commonly used
weapon[s] for protection in the home," such as long guns that lack
the prohibited
features.
9 3
Thus, the
court found that while it could
not say whether the prohibitions impinged at all on a right protected
by the Second Amendment, it was reasonably certain that the bans
did not substantially burden that right.
94
In support of this
argument, the
court cited the same defensive
gun use statistics
relied upon in
Heller to show that most instances
of defensive gun
use were accomplished
with handguns.
9 5
Accordingly, the court
found the appropriate standard of review was intermediate scrutiny
and went on to uphold the
law as reasonably related
to the District
of Columbia's interest
in public
safety.
This application of the second step of the analysis is also
puzzling. The first step is supposed to be an identification of the
right at issue, with the
second step simply asking how
much the
right that is identified and
described in the first step
is burdened.
Because the court assumed in the first step that large capacity
ammunition magazines and assault weapons were protected by the
Second Amendment,
the second step
question-how much the right
identified in the first step is burdened-should have had an easy
answer: a lot, because those items are completely banned under the
91. Heller II, 670 F.3d at 1261.
92. Id.
93. Id. at 1261-62 (citing D.C. v. Heller, 554 U.S. 570, 629 (2008)).
94. Id. at 1261.
95.
Id. (citing Kleck & Gertz,
supra note 67, at 177,
185).
254
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SECOND AMENDMENT "TYPE
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255
District of Columbia's
laws. Such an answer
probably would have led
to
the application
of strict scrutiny. Instead,
the court's supposed
inquiry into how
much the bans burdened Second
Amendment rights
more closely resembled what the first step is supposed to be-an
inquiry into whether
the Second Amendment
protects the conduct at
issue at all. In making that determination, the court was able to
dispense with the "common use" test and focus instead on other
questions about these weapons and magazines, such as how often
they are actually used in self-defense and whether alternative
"suitable
and commonly
used" weapons
were still
available for home
self-protection
under the
District of Columbia's
laws.
96
After Heller II, in New York State Rifle & Pistol Ass'n Inc. u.
Cuomo (NYSRPA),97
the Second Circuit
upheld new laws in New
York and Connecticut banning assault weapons and large capacity
magazines. The laws were enacted in the wake of the Sandy Hook
Elementary School shooting.
9 8
Like the court in Heller II, the Second
Circuit assumed that the guns and magazines at issue were
protected by the Second Amendment and, applying intermediate
scrutiny, upheld the bans.
99
96. As the dissent pointed out, it is unclear why the argument that other kinds
of firearms
are still legal is persuasive
here when it was not persuasive
in Heller
itself (where the government unsuccessfully attempted to rely on the continued
legality of long-guns). See id. at 1290 (Kavanaugh, J., dissenting). This further
suggests that the court was really arguing that these guns and magazines-unlike
the handguns in Heller-were outside the scope of the Second Amendment.
97. 804 F.3d
242 (2d Cir.
2015).
98. Both laws added to existing prohibitions in those states. New York already
banned semi-automatic rifles with at least two "military-style" features, but its new
law expanded the definition of assault weapon to include semi-automatic rifles with
only one such feature. New York State Rifle & Pistol Ass'n v. Cuomo, 990 F. Supp. 2d
349, 355-56
(W.D.N.Y. 2013) aff'd in part, rev'd
in part, 804 F.3d 242 (2d Cir. 2015).
New York also previously banned large capacity ammunition magazines, but its new
law eliminated a "grandfather" clause that allowed New Yorkers to keep magazines
manufactured
prior to 1994. Id. at 356-57.
Connecticut also moved from
a "two
feature" to a "one
feature" test for its assault weapons
ban but its restriction on large
capacity ammunition magazines was new. See Shew v. Malloy, 994 F. Supp. 2d 234,
240-41 & n.19
(D. Conn. 2014) aff'd in part, rev'd
in part sub nom. New York State
Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242 (2d Cir. 2015).
99. See NYSRPA, 804
F.3d at 257, 260-64. The court struck
down a separate
provision
that required magazines to
only be loaded with no more than
seven
cartridges at one
time, except when at a shooting range.
Id. at 264. The court found
that the state had failed to sufficiently
justify the load limit
since ten round
magazines
would remain in circulation under
the laws, making the load limit
unlikely to have much practical
impact. See id. This is noteworthy
because it appears
to be the closest a court has come, since Heller, to striking down a "type of weapon"

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REVIEW
In NYSRPA,
the court
broke the
"scope of the
right" portion
of its
analysis into two parts-whether
the guns and magazines
were in
common use and whether
they were "typically possessed
by law-
abiding
citizens
for
lawful
purposes."
10
0
In
analyzing
common
use,
the court reviewed
more evidence about common
use than in Heller
II, likely
because of the
development
on both sides
of better research
into the issue
in the years after Heller II.
In addition to the data
relied on by
the Heller II court in
NYSRPA had before it
manufacturing
data
about the
number of AR-15
type rifles
manufactured
for the
domestic market,
0 1
the percentage
of firearm
sales
AR-15s accounted for in
2011, the fact that many
popular
firearms
are designed for use
with large capacity ammunition
magazines, the fact
that one study estimated that
there were one
million
privately
owned assault
weapons in
the United
States in
1990, and
the fact that
as of 2000, nearly
50 million
large capacity
ammunition magazines
had been approved for
import into the
United States.10
2
The court
also considered
evidence
offered
by the
plaintiffs
that a plurality of responders
to an online survey of owners
of
AR-15
type
guns
indicated
that
they
only
owned
one
such
weapon,
which the
plaintiffs argued indicated
widespread
ownership.1
03
The
defendants countered with
an estimate finding assault
weapons only
account
for roughly 2% of all guns owned in the United States.1
04
Just like in Heller
II, the
citation to this
evidence raised
many of
the same puzzling
questions about the common
use test and how the
Second Circuit
was applying it. The court
did not make much of an
restriction
on Second Amendment grounds;
although, this restriction was
really on
behavior (loading extra rounds) not on the type of equipment a person could possess.
The court also
held Connecticut's specific ban
on the Remington Tactical Rifle Model
7615, a pump-action (not semi-automatic)
rifle, unconstitutional
because of the
state's failure to present
arguments defending its constitutionality
on appeal. Id. at
250 n.17, 257
n.73, 262 n.112,
265.
100. Id. at 254-55.
101. Id. at
255. Interestingly,
the number the
court relied upon
came from
a
declaration offered by the plaintiffs
saying that 3.97 million AR-15
type rifles had
been manufactured
since 1986. Shew, 994 F. Supp. 2d
at 245 & nn.40-41; NYSRPA,
990 F. Supp. 2d at 364. While this appears to conflict with the statement in Heller II
that only 1.6 million AR-15s had been manufactured since 1986, the discrepancy is
probably explained
by the NYSRPA declaration's
broader focus on all "AR-15 type
rifles." See NYSRPA, 990 F. Supp. 2d, at 364 (emphasis added) ("Though the mark
'AR-15' is Colt's, many manufacturers make a similar firearm.").
102.
See NYSRPA, 804 F.3d at 255;
Shew, 994 F. Supp. 2d at 245-46
& nn.40-
41; NYSRPA,
990 F. Supp.
2d at 364-65.
103.
NYSRPA, 804 F.3d
at 255; Joint
Appendix at 155-64,
New York State
Rifle
&
Pistol Ass'n v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (No. 14-0036).
104. NYSRPA,
804
F.3d at 255.
256
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SECOND AMENDMENT
"TYPE OF
WEAPON" ANALYSIS
257
effort to address these
questions directly. The NYSRPA
court simply
concluded-after reciting some of
the statistics above-that the
banned weapons were in common use because millions of them exist
in the United States even according to "the most conservative
estimates
cited by the parties."
0 5
The court did not explain
why
possession
by a few million Americans
was sufficient to qualify
as
"common
use." Nor
did either court
explain which
of the statistics
offered
were relevant to the common
use test and which were
not (or
which had the most weight).
The court was less sure of itself in looking at the second part of
the
scope inquiry-whether the
weapons were "typically possessed"
for lawful purposes-and followed the path of Heller II by assuming
without deciding that the weapons were typically possessed for such
purposes.10
6
Thus, the court assumed that the bans did prohibit
conduct
within the scope
of the Second
Amendment.
0 7
After making that assumption, the court went on to find that
intermediate
scrutiny was the
appropriate standard to apply
to the
bans.
The court largely tracked
the reasoning in Heller II,
finding
that
the law did not warrant
strict scrutiny because it
did not
"effectively disarm" individuals
or prohibit an "entire class of arms"
because
other protected arms,
including semi-automatic
weapons
without
prohibited features, were
still available.
0 8
Interestingly,
the
court
suggested another reason
for applying intermediate
scrutiny
was that the weapons prohibited by these laws were not as popular
as the handguns at issue in Heller.1
09
Applying intermediate
scrutiny, the court upheld the bans based on the public safety
justifications
offered by Connecticut
and New York."
0
The application of intermediate scrutiny in NYSRPA is puzzling
for the same reasons it was in Heller II. After the courts found (or
assumed) that the laws at issue completely banned weapons that are
protected by the Second Amendment, it should have been an easy
decision to apply
strict scrutiny. The choice
to apply intermediate
scrutiny instead seems motivated by some doubt on the part of the
court that the weapons at issue should receive Second Amendment
protection at all.
If these courts really believed
that assault weapons
and large capacity
ammunition magazines
were protected, then
these cases should
not have been unlike
Heller itself where one
105. See NYSRPA, 804 F.3d at 255-56.
106. Id. at 256-58.
107. Id.
108. Id. at 258-61 (citing
Heller v. D.C. (Heller II), 670
F.3d 1244, 1262 (D.C.
Cir. 2011)).
109. See NYSRPA, 804 F.3d at 260 n.98.
110. Id. at 261-64.

TENNESSEE LAW REVIEW
commonly
used type
of arm (handguns)
was
completely banned
while another type
(long guns) remained
legal."'
The fairly deferential intermediate scrutiny that was applied to
the laws in NYSRPA and Heller II that considered available self-
defense alternatives can only
be harmonized with the
much harsher
treatment
the law
received in
Heller by some
difference
in the
weapons
at
issue.
In
order
to
reconcile
this
disparate
treatment,
something
about
the assault
weapons and
large capacity
ammunition
magazines
in the former
cases would,
in the eyes
of
courts, have to make them less worthy of protection than the
handguns in the latter.
The courts do not say what
this is,112 but I
think it reflects these
courts' serious misgivings
about whether they
were applying the common use test correctly in finding these
weapons
protected in the first place,
113
given all the questions
about
the
test that were left unanswered
in Heller, the lack of reliable
data
on
the market share of different
types
of firearms, and,
perhaps,
underlying disagreement with the common use test itself.
B. James &
Kampfer -Ignoring the
Common Use Test and
Replacing it with
Danger Prevention and Alternative
Means Analysis
Other courts have been more obvious in their reluctance to apply
the common use test. In People
v. James,
114
the California
Court of
Appeal rejected a Second
Amendment challenge to the
state's ban on
assault weapons and .50
caliber rifles (rifles capable
of utilizing
particularly large and destructive
cartridges).
115
The court
dispensed
111. See
supra Part
III.A.2.
112.
Though Heller II does compare
the frequency with which assault
weapons
are used defensively
to the frequency of defensive handgun
use. See Heller II, 670
F.3d at 1262.
113.
This is reflected
in the NYSRPA
court's argument
that bans on
assault
weapons and
large capacity
ammunition magazines
are not
deserving of strict
scrutiny
because those
weapons are less
popular than
handguns. See NYSRPA,
804
F.3d at 260
n.98. At least
one court has looked
at much of
the same evidence
as
Heller II and NYSRPA
and expressed
"serious[]
doubts" about whether
assault
weapons are protected by the Second
Amendment at all. See Kolbe
v. O'Malley, 42 F.
Supp. 3d 768, 788-89 (D.
Md. 2014) ("[Alssault weapons represent
no more than 3%
of the
current civilian gun stock, and
ownership of those weapons
is highly
concentrated
in less than
1% of the U.S.
population."). However,
that court
still
applied a similar
mode of analysis
to Heller II and NYSRPA
because
it assumed that
the banned
weapons were
protected by the
Second Amendment
and upheld
the ban
under intermediate
scrutiny.
Id.
at 789-91, 793
n.33, 797.
114. 94 Cal. Rptr. 3d 576 (Cal. Ct. App. 2009).
115. A
cartridge is a metallic
package containing
"a bullet,
case, powder,
and
primer," in simpler
terms, a bullet and propellant.
See, e.g., VIN SPARANO,
258
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SECOND
AMENDMENT
"TYPE OF WEAPON"
ANALYSIS
259
with
the case
by finding that
the bans simply
did not
prohibit
firearms
that were
protected
by the
Second Amendment.116
While the court
paid lip service
to the
"common use"
test,
11 7
its
analysis
essentially
ignored it.
Instead, the
court described
some of
the
dangerous
features of these
guns that
the legislature
was
concerned
about
when it enacted
the bans, including
the high
rate of
fire
of assault weapons
and the
capability
of a .50 caliber
rifle to
destroy
or damage
buildings
and vehicles.
1 1
8
From those
facts, the
court
concluded
that "[t]hese
are not the types
of weapons
typically
possessed
by law-abiding
citizens
for lawful
purposes such
as sport
hunting
or self-defense;
rather,
these are weapons
of war.
. . " and
thus
"fall within the category
of dangerous and unusual
weapons
that the government can prohibit for individual use."
119
While
the evidence
before
the California
Legislature
and the
James
court may have shown that
these weapons were dangerous,
it
had
no bearing
on whether these
weapons
were also unusual
(i.e.,
not
in common use).
Surely, a
weapon could
be both very dangerous
and
in common
use. The James
court elided
that distinction
by
focusing
on the
question of dangerousness
and
ignoring the
question
of unusualness completely.
Similarly,
in Kampfer v. Cuomo,1
2 0
another challenge
to New
York's
post-Newtown assault weapons
ban, the federal district
court
did
not even mention the common
use test.
12
1 Instead, in
the first
step
of its analysis, the court focused
entirely on whether alternative
arms
remained available for self-defense,
arguing that "any
burden
upon
the possession of an 'assault
weapon' is relevant only insofar
as
it generally
impacts one's ability
to
possess arms."
122
Because
the
court found that "ample firearms remain[ed] available to carry out
the 'central component' of the Second Amendment right[,] self-
defense," the court held that New York's assault weapons ban did
Cartridges, in THE COMPLETE OUTDOORS ENCYCLOPEDIA, 36, 36-37 (St. Martin's
Griffin rev. ed. 2000).
116. James, 94 Cal. Rptr. 3d at 586.
117. Id. at 585 (describing the Second Amendment right recognized in Heller as
"the
right to possess and carry weapons
typically possessed
by law-abiding
citizens
for lawful purposes such
as self-defense") (citing D.C. v. Heller,
554 U.S. 570, 628-30
(2008)).
118. Id. at 585-86.
119. Id. at 586.
120. 993 F. Supp. 2d 188 (N.D.N.Y. 2014).
121. Unlike the plaintiffs in NYSRPA, the plaintiff in Kampfer did not challenge
New York's ban on large capacity ammunition magazines. See id. at 193 n.6.
122. Id. at 195 n.10.

TENNESSEE
LAW REVIEW
not impose
a substantial
burden on
Second Amendment
rights
and
essentially
ended
its analysis
there.123
While
James and Kampfer's explicit
replacement of the common
use test with different inquiries about dangerousness and
alternative means is probably not consistent with Heller, their
shirking of the common use test at least has the virtue of being more
transparent than the sleight of hand pulled off by the courts in
Heller II and NYSRPA. The courts in both of the former cases put
the question of whether the weapons were covered by the Second
Amendment
squarely where it logically
belongs, in the first part
of
the two-step analysis.1
24
In doing so, these courts made explicit what
was implicit in the Heller II type cases: Assault weapons should not
qualify for Second Amendment protection.
Nevertheless, these cases
are still unsatisfying in
that they fail
to provide any explanation
for why they depart from the
common use
inquiry. Moreover, the alternative tests those courts utilize present
pose problems of their own. In the case of a pure dangerousness test,
it seems unlikely that the law in Heller itself would have been struck
down under such
a test because handguns
are used very commonly
by criminals and have proven to be quite dangerous.1
25
Similarly, a
test centered only on alternative means also suggests a different
outcome in Heller since long guns remained available under the
District's handgun ban.1
26
More broadly, even a
ban on all firearms
might survive such a test since other arms, such as knives and
tasers,
might remain
available.1
2 7
123. See id. at 196 (quoting D.C. v. Heller, 554 U.S. 570, 599 (2008)).
124. See, e.g., James, 174 Cal. App. 4th at 676-77. James was decided prior to
the
two-step
test
becoming
widely
used
and
did
not explicitly
mention
such
a
test,
but its analysis clearly reflects the kind of "scope of the right" inquiry that is now the
hallmark
of the first
step of that test.
125. See Heller v. D.C.
(Heller II), 670 F.3d 1244,
1286 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting) (noting that "semi-automatic handguns are more
dangerous as a class than semi-automatic
rifles because handguns
can be concealed
... ."
and that handguns
'are the overwhelmingly
favorite
weapon of
armed
criminals."').
126.
See Heller, 554
U.S. at 575.
127.
See David B. Kopel et al., Knives
and the Second Amendment, 47
U. MICH.
J.L. REFORM 167, 191-99 (2013); Ron F. Wright, Note, Shocking the Second
Amendment: Invalidating States'
Prohibitions on Taser with the District
of Columbia
v. Heller,
20 ALB. L.J. ScI. &
TECH. 159, 176 (2010).
260
[Vol.
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C. Fyock-Engaging With The Common Use Test
One characteristic
all the cases discussed above share is that
they fail to meaningfully engage with questions about what the
common
use test really means.
An exception to this trend is
Fyock v.
City of Sunnyvale,12
8
which was a case from the Northern District of
California dealing
with a Second Amendment
challenge to
a
California city's
ordinance prohibiting
the possession of large
capacity ammunition magazines.1
29
Although the court ultimately
denied the plaintiffs' request for a preliminary injunction enjoining
the law, the court did find that large capacity ammunition
magazines were in common use and therefore protected by the
Second Amendment.130 Along the way, the court raised and
answered some interesting questions about how it was applying the
common use test.
Like
the courts in Heller II
and similar cases, the court
cited
statistical
evidence offered by
the plaintiffs that large
capacity
magazines
are commonly owned,
including a declaration
alleging
that large capacity ammunition magazines make up approximately
47%
of all magazines owned nationwide
and evidence showing
that
many
of the semi-automatic rifles
and handguns currently for
sale to
consumers
are sold
with
large
capacity
ammunition
magazines.131
However, the court also noted that "[b]oth parties admit[ted] that
reliable data
on the number of the banned
magazines owned by
individuals does not exist."1
32
The court nevertheless found it "safe to
say that whatever
the actual number of such
magazines in United
States consumers'
hands
is, it is in
the tens-of-millions,
even under
the
most conservative
estimates."1
33
The defendants argued that the court should apply a local test
and conclude that
such magazines could not
be in common use in
California because
their sale (though not their
possession) had been
banned in California-through
a combination
of state and federal
laws-since 1994.134
The court rejected that
argument because the
"Supreme Court
[in Heller] did not define the
common use test as a
local test, but
rather evaluated common
use as a national
test .. .."135 The
court further asserted that
any local test would not
128. 25 F. Supp.
3d 1267 (N.D. Cal.
2014).
129. See id. at 1272-73.
130. See
id. at 1275-77.
131. See id. at 1275.
132. Id.
133. Id.
134. See id. at 1275-76.
135.
Id. Although Heller
referred to handguns
as "the most
preferred firearm
in

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make sense because it would lead to the scope of individuals' Second
Amendment rights
varying based on location, which
would not be
consistent
with safeguarding individual
rights equally throughout
the
United
State.136
The court also rejected
an argument that even if large
capacity
ammunition magazines
are commonly owned, they
are not
commonly used for self-defense.1
37
The court found-in a departure
from the apparent view of the court in Heller II-that under the
common use test, "the standard is [solely] whether the [weapons at
issue] are 'typically possessed by law abiding citizens for lawful
purposes,' not whether the [weapons] are often used for self-
defense."138
The court explained
that most people never
need to
discharge
a firearm in self-defense
at all, but that this fact
"should
be celebrated" rather
than used as a basis to limit
the protections of
the Second Amendment.
139
Thus, the court found
that large capacity
ammunition magazines
were protected
by the Second
Amendment.1
40
However,
like the courts
that employ
the Heller
II style
methodology,
the court concluded
that
intermediate scrutiny
was the
appropriate standard
to apply to the ban largely
because
of the
availability
of alternative
weapons.141
The court
observed that
"[m]agazines
having
a capacity to
accept more
than ten rounds
are
hardly
crucial for
citizens to
exercise
their right
to bear
arms."1
42
Rather,
"[i]ndividuals
have countless
other handgun
and magazine
options
to
exercise
their
Second
Amendment
rights."
143
Accordingly,
the court concluded that
the ban only imposed a "light"
burden on
the nation
to 'keep' and
use
for protection
of one's home and
family," the Court
did
not explicitly
describe the common use test
as a national standard. See D.C.
v.
Heller, 554 U.S. 570, 628-29 (2008) (emphasis added).
136. See
Fyock, 25 F.
Supp. 3d at 1276.
But see Joseph
Blocher, Firearm
Localism, 123 YALE L.J. 82, 124-32 (2013) (noting the prevalence of local variation in
the enforcement of constitutional
rights in other areas and
suggesting that such
variation
may be particularly desirable
in Second Amendment analysis).
137. See Fyock, 25 F. Supp. 3d at 1276.
138. See id. (quoting Heller, 554 U.S. at 625).
139.
Id.
140. Id. at 1277. The
court also rejected an argument
that magazines are not
arms at all.
See id. at 1276. The court found
ammunition magazines must
be
protected by the Second Amendment
because they are "integral components
to vast
categories of guns." Id.
141. See id. at 1278-79.
142. Id. at 1278.
143.
Id.
262
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2015] SECOND AMENDMENT
"TYPE OF WEAPON"ANALYSIS
263
Second Amendment rights and applied intermediate scrutiny to
uphold
the ban based on
its connection to preserving
public safety.144
The court's analysis
in Fyock takes the common
use test to its
logical conclusion: Any weapon that is sufficiently popular with the
public (on a nationwide
basis) is subject to Second
Amendment
protection, regardless
of the weapon's usefulness
or necessity for
adequate self-defense.
45
While the court was more honest than
other courts about the true meaning of the common use test, the
court's choice to apply an alternative means analysis in the second
step of its reasoning shows that it was just as eager to blunt the
impact
of the
common use
test as
other courtS.1
4 6
As described in the following section, courts' reluctance to apply
the common use test forthrightly is a reflection of the test's
unworkable nature, tendency to create undesirable incentives, and
inadequacy to protect
the Second Amendment
right recognized in
Heller.
V. THE COMMON
USE TEST'S
FLAWS
& THE REASONABLE
SELF-
DEFENSE APPROACH
As the discussion above demonstrates, courts have had a difficult
time applying the common use test in a coherent and intellectually
honest way. In this section, I will demonstrate why those difficulties
are not caused by the Supreme Court's failure to adequately explain
the test, but instead reflect fundamental problems with the test
itself. Next, I will outline some of the alternatives to the common use
test proposed in recent scholarship and explain why they are
unpersuasive. Finally, I will propose my own test for analyzing type-
of-weapon claims: Whether the weapon at issue is consistent with
reasonable self-defense.
A. The Problems with The Common Use Test
While Heller
left many questions unanswered
about the common
use
test,
the
lower
courts'
subsequent
applications
of
the
test,
particularly
in the Fyock decision,
provide a reasonably clear
picture
of what
the common use test actually
requires.
Moreover, unlike
the
courts, legal scholars have more willingly engaged in detailed
applications of
the common use test to particular
weapons.
147
These
144. See id. at 1278-79.
145. See id. at 1277.
146. See id. at 1278.
147. See, e.g., Kopel, supra note 127, at 191-96 (arguing that knives are
protected by the Second Amendment); Dan Terzian, The Right to Bear (Robotic)

TENNESSEE
LAW
REVIEW
articles elucidate further what Fyock, and, to a less explicit extent,
Heller II and similar cases suggest: The common use test is a mere
gauge of the current total
ownership in the United
States of the
weapon at issue.
The common use test essentially asks courts to look at evidence
about the number of the particular firearm or firearm accessory
48
at
issue owned by private citizens1
49
in the United States
for lawful
purposes
such as self-defenses
0
at the
time the case is decided.
As
discussed above, in Heller II, NYSRPA, and Fyock, the courts relied
on evidence
that usually was offered
as indirect proof of those
numbers, such as manufacturing and sales statistics.1
5
From this
data, courts make a determination about whether the guns or gun
accessories are sufficiently
popular to warrant
protection, usually
finding such protection
when the number of weapons
in private
hands
reaches
into
the
"tens-of-millions"
range.1
5 2
Arms, 117 PENN ST. L. REV. 755, 770-73 (2013) (admitting that robotic arms
probably do not qualify for protection under the common use test today but arguing
that they will "edge toward" qualifying for protection in the future, assuming they
are not banned); Lindsay Colvin, Note, History, Heller, and High-Capacity
Magazines:
What Is the Proper Standard
of Review for Second Amendment
Challenges?, 41 FORDHAM URB.
L.J. 1041, 1069 (2014) (arguing that
large capacity
ammunition magazines
qualify for protection under
the common use test); Peter
Jensen-Haxel, Comment, 3D Printers, Obsolete Firearm Supply Controls, and the
Right to Build Self-Defense
Weapons Under Heller, 42 GOLDEN
GATE U. L. REV. 447,
485-93 (2012) (discussing the potential application of the common use test to
weapons manufactured using 3D
printing technology); Wright, supra
note 127, at
181-89 (arguing that tasers qualify
for protection under the common
use test).
148. There
has been some discussion about
the level of generality to be applied
in
determining
whether
a particular
weapon
is in
common
use.
See, e.g.,
Volokh,
supra
note 24, at 1479 ("How common
a weapon is depends on how specifically
it is
defined. 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."); Jensen-Haxel,
supra note 147, at 486-88,
487
n.257.
149. See Colvin, supra note 147, at 1050-51 ("The Court [in Heller] rejected the
notion that the
common user includes military
organizations .... .).
150. Most courts have analyzed the lawful use factor separately. A notable
exception
is NYSRPA and that court ultimately
had to just assume this
factor was
present because of a lack
of reliable data on the uses of the
weapons at issue. See
NYSRPA, 804 F.3d at 256-57.
151.
See discussion
supra Part
IV.
152. See, e.g., Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1275 (N.D. Cal.
2014). This is one area that the courts and subsequent scholarship have not filled in
about the common use test-the
exact quantum of popularity
required for a weapon
to enter
common use. However, I maintain
that no matter how this or any
other gap
in the test is filled in, the test
will remain fatally flawed. See
discussion infra
264
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2015] SECOND AMENDMENT
"TYPE OF WEAPON" ANALYSIS
265
This test has at least
five critical flaws. First,
it gives the
government the ability to
essentially freeze the right
where it now
stands by preventing new
firearms from becoming
popular and
therefore protected (the under-protection problem). Second, it gives
the firearm industry the ability to unilaterally make new firearms
protected simply by manufacturing and heavily marketing them (the
overprotection problem). Third, while the idea of linking the scope of
the right to the choice of the people is superficially appealing, the
advantages of doing so are lessened in this context, especially since
the test does not necessarily even reflect what it purports to reflect-
the average person's firearm of choice (the public choice fallacy).
Fourth, reliable data on which firearms are possessed most
commonly by Americans does not exist and is not likely to exist in
the future (the
data problem). Fifth, the test
is not commanded by
the text or history
of the Second Amendment;
instead, it is simply
the result of a
poor attempt to harmonize Heller's
holding with other
precedent
(the doctrinal
problem).
1. The Under-Protection Problem
As many have pointed
out, the common use test
creates an
incentive for governments that are interested in restricting access to
firearms to ban
new weapons completely
before they can become
popular.15
3
If a new firearm
that is extremely effective
for self-
defense is invented, and Congress immediately bans its use
nationwide, it
could never become commonly
possessed for self-
defense simply
because Congress decided
to ban it.154 Even more
troubling, consider the hypothetical proposed by Professors Craig
Lerner and Nelson Lund:
subsections V.A. 1-4.
153. See, e.g., Craig S. Lerner & Nelson Lund, Heller and Nonlethal Weapons, 60
HASTINGS L.J. 1387, 1393 (2009)
("Justice Scalia's test empowers Congress
to create
its own exceptions
to the Second Amendment
so long as the Supreme Court waits
awhile before it checks to
see whether particular weapons
are in common civilian
use.");
Terzian, supra note 147, at 770
& n.114 (collecting sources); Colvin,
supra
note 147, at 1051;
Wright, supra note 127, at 181 n.131;
see also D.C. v. Heller, 554
U.S.
570, 721 (2008)
(Breyer, J., dissenting)
("On the
majority's reasoning,
if
tomorrow someone invents a particularly useful, highly dangerous self-defense
weapon, Congress and the
States had better ban it immediately,
for once it becomes
popular
Congress will no longer possess
the constitutional authority to
do so. In
essence, the majority
determines what regulations are
permissible by looking to see
what existing regulations permit.
There is no basis for believing
that the Framers
intended
such circular
reasoning.").
154. See Heller, 554 U.S. at 721.

TENNESSEE LAW REVIEW
Suppose,
for
example,
that the federal
handgun
ban imposed
in the District
of Columbia
in 1976
had been
applied by
Congress
to the entire nation
that same year. If a case
challenging the ban
had not reached the Supreme
Court until
2008,
it would presumably
have
been upheld
under
the
[common
use]
test
....
155
Could it be that
the outcome
of a case
that is often
used as the
gold
standard
of the
originalist
interpretive
methodology
8 6
turned,
not
on
the
original
understanding
of the
constitutional
text
in
1791,
but
on a policy decision
made
by
Congress in
the last few decades?
That is exactly
the direction in which
the common use test points.
For
obvious reasons,
it is very
troubling to
give Congress
the
power
to control the
scope of the
right guaranteed
by the
Second
Amendment
or any other enumerated
constitutional right. The Bill
of Rights
in general, and the Second
Amendment, in particular, are
supposed to act as
restraints on the power of Congress
in order to
protect individual
liberty.
Indeed, in
an oft quoted
passage from
Heller, the majority
declares that "[c]onstitutional
rights are
enshrined with the
scope they were understood
to have when the
people
adopted them,
whether
or not future legislatures
or
(yes) even
future
judges think
that scope
too broad."
15 7
But under the
common
use test,
future Congresses
have quite
a bit of power
to control
the
scope of the right.
Moreover,
because courts
have interpreted
the
common use
test
(probably correctly)
15 8
to be a question about
national common use
155.
Lerner & Lund,
supra note 153,
at 1393. Another
article
provides
a more
futuristic
hypothetical
illustrating
the
problem:
Suppose a new
weapon is designed that emits
a laser beam and is
absolutely non-lethal.
A legislature could immediately
and completely ban
the weapon
before it reaches the masses
and would theoretically
be
permissible
to do so under
Heller. While the
firearms of
Heller have been
circulating
in the
public for centuries,
our hypothetical
laser weapon
would
never have a chance
to become 'common' enough
to [satisfy the common use
test]
....
Wright,
supra
note
127,
at
181
n.131.
156. See,
e.g., Randy
E.
Barnett,
News
Flash: The
Constitution
Means
What
It
Says, WALL ST. J.,
June 27, 2008, at A13 ("Justice
Scalia's opinion is the finest
example of what
is now called 'original
public meaning'
jurisprudence
ever adopted
by the Supreme Court.").
157.
Heller,
554
U.S.
at
634-35.
158. After
all, as
Lerner
& Lund's
hypothetical
demonstrates,
a local
test
would
probably
have
resulted
in Heller
itself
coming
out differently.
See
Lerner
& Lund,
266
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2015] SECOND
AMENDMENT "TYPE OF WEAPON"ANALYSIS
267
as opposed to state-wide or local common use,
15 9
the test places this
power to define the scope of the arms protected by the Second
Amendment solely in the hands of the federal government rather
than state or local governments. If granting such power to the
government were proper at all, it would
make little sense to give it to
the federal government but not to state governments, particularly
given state (and local) governments' traditional leading roles in
setting
firearms
policy.
6 0
This
dichotomy
also
undermines
the
idea,
which is repeated throughout McDonald, that the Second
Amendment right-like others in the Bill of Rights-should apply to
the states with the same strength as it applies to the federal
government,
rather
than in
a less strong,
"watered-down"
form.161
The common
use test turns this concern
on its head, applying a
watered down version of the Second Amendment to the federal
government
and a stronger version
to the states.
Finally, giving any government this power creates an incentive
for ineffective
regulation of firearms and
makes compromise less
likely in the gun debate. It would be rational under this test for
policy makers favoring stronger gun control laws to push
aggressively for outright bans of new firearms and to be less inclined
to consider alternative forms of regulation. This is because if sales of
a new firearm
are allowed and it becomes
popular enough to gain
constitutional protection, then any regulations on that firearm could
become jeopardized. Making the battle over each new weapon an "all
or nothing"
fight will lead policymakers
away from careful
individualized consideration of each weapon, which all sides would
likely agree
is not a smart way to
making gun policy.
2. The
Over-Protection
Problem
A similar problem that has
gotten much less attention
is that the
common use test leads to
the protection of guns that
really should
not be protected (or at least
could lead to them being
protected for
the wrong reasons). The
test does this by putting a
great deal of
power into the hands of gun
manufacturers and more pro-gun
states.
It also may hinder efforts
to require consumer safety
features on
guns.
supra note 153, at 1393.
159. See discussion
of Fyock, supra
Section IV.C.
160. See Blocher,
supra note 136, at 107-121 (describing
"urban gun control" as
a "nationwide
phenomenon" in the founding era
and the following century and noting
that the first major federal
gun control law was not enacted
until the 1930s).
161. See McDonald
v. City of Chi., 561 U.S.
742, 765 (2010).

TENNESSEE
LAW
REVIEW
As
the story
of the exploding
popularity
of assault
weapons
discussed in Section II.A, supra, demonstrates, the gun industry has
the ability to flood the
market with new, deadlier
weapons in a very
short time frame. The common use test will give the industry even
more
incentive to do just that. By
quickly bringing new weapons
into
popularity,
the industry will not
only be making significant
current
profits
but will also be constitutionally
guaranteeing future
profits.
This is particularly true since, as demonstrated in many of the cases
above, courts
often rely
on mere manufacturing
data
in determining
common use
rather than sales data, which
is more difficult to
ascertain. Thus,
manufacturers can contribute
to a weapon's
constitutional
protection simply by making
a lot of them-whether
or not they immediately
become popular
with consumers.
The common use test also increases the power of legislators in
more pro-gun states to
control what becomes constitutionally
protected. The use of a
national common use test
means that a
weapon that becomes very
popular in just a handful
of populous
states can become constitutionally
protected in all
of the states.
Thus, while state governments may not have the federal
government's
power to prevent arms
from becoming protected under
the common
use test, a handful of pro-gun
states with high enough
populations
could have the ability to
bring a gun type into common
use simply
by allowing that type of gun
to be sold even if most other
states do
not. There is no justification
for giving states that favor
less restrictive
gun
laws such
unilateral
power.
State efforts
to require safety improvements
to firearms could
also be stunted
by the common
use test.
Although there
are no
federal design safety
standards for firearms, several
states have
enacted laws setting
such standards in order
to promote safer
designs-particularly
of handguns-to prevent
accidents.1
62
For
example,
California's
law requires
semi-automatic
handguns
that
were
approved for sale in California
after a certain date to include
a
"chamber load indicator,"16
3
which is a device that provides a clear
162. See CAL. PENAL CODE §§ 16380, 16900, 17140, 31900-32110 (West 2012 &
Supp.
2015); D.C. CODE § 7-2505.04 (2001);
HAW. REV. STAT. § 134-15(a) (1993);
720
ILL.
COMP.
STAT. ANN.
5/24-3(A)(h)
(West
Supp.
2015);
MD. CODE
ANN.,
PUB. SAFETY,
§§ 5-405-406 (LexisNexis
2011); MASS. GEN. LAWS ANN. ch. 140, §§ 123, 131%, 1314
(West 2002
& Supp. 2015); MINN.
STAT.
ANN.
§§ 624.712, 624.716
(West 2009
&
Supp.
2015); N.Y.
PENAL LAW § 400.00(12-a)
(McKinney
Supp. 2015);
CAL. CODE
REGS.
tit. 11, §§ 4047-4074 (2011); D.C.
Mun. Regs. tit. 24, § 2323 (2013);
501 MASS.
CODE REGS.
§§ 7.01-.16 (2007);
940 MASS.
CODE REGS. §§
16.01-09 (1999);
N.Y.
COMP. CODES R. &
REGS. tit. 9, §§ 482.1-.7
(1980).
163.
See CAL.
PENAL
CODE
§ 31910(b)(4)
(West
2012).
268
[Vol.
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2015] SECOND AMENDMENT "TYPE OF WEAPON"ANALYSIS 269
indication on a gun when a round is in the firing chamber.
16 4
A more
ambitious law
in New Jersey will require all
handguns that are sold
after
a certain date to
be equipped with
"smart gun" or "owner
authorization"
technology that allows the gun only to be fired by its
authorized
owner, once
such technology
is available.
16
5
The purpose of these laws
is to drive changes in existing
firearm
models. In order
to do that, these laws necessarily prohibit (or cause
to be phased out over time) the sale of firearms that do not comply
with these safety
standards. In doing so, the
laws may ban the sale
of firearms that
are currently in common
use because many people
in the nation
will still possess firearms
without the features
promoted by the laws. This concern is not hypothetical; at least one
lawsuit predicated on this exact argument is currently challenging
California's
handgun
safety
standards.
1 6 6
Whether implementing certain safety standards for firearms
somehow diminishes citizens' ability to defend themselves is
debatable, but that debate is not the one the common use test will
require. Instead, the test simply asks whether the law bans firearms
that are currently
most commonly possessed,
a test that laws setting
new safety standards are, by definition, likely to fail.1
67
After all, if
guns with a particular safety feature were already the norm, there
would be much
less of a need for regulatory
intervention.
164. See SPORTING
ARMS AND AMMUNITION MFRS.'
INST., Owner Recognition
Technology, in BACKGROUND
PAPER #9, 1, 3-4, www.saami.org/specifications
andinformation/publications/download/SAAMIITEM_229-
OwnerRecognitionTechnology.pdf (last visited Dec. 26, 2015).
165. See N.J. STAT. ANN. §§ 2C:39-ldd, 2C:58-2a(5)(e), -2.3, -2.4; (West 2005 &
Sup. 2015).
166. See Plaintiffs' Memorandum Of Points And Authorities In Support Of
Plaintiffs' Motion For Summary
Judgment at 14, 19-20, Pena v. Lindley,
No. 2:09-cy-
01185, 2015
WL 854684 (E.D. Cal. Feb. 6, 2015)
(arguing that California's handgun
safety standards result in
a ban on the sale of "handguns of
the kind in common use
protected by the Second Amendment.").
167. Of course, that is not to say that challenges to these laws are necessarily
guaranteed to succeed. Depending on the level of generality one uses to define
firearms in common use, it may
be that such laws do not ban firearms
in common
use after all
(i.e., it does not matter whether handguns
with feature X are common;
it
only
matters that handguns generally
are common, and since handguns are
allowed
under
the laws, even if they must have
feature X, the law does not ban a
weapon in
common use). Moreover,
even if a court does find that
the banned firearms are in
common use, such laws could still survive at the second step of the analysis by
satisfying
the appropriate
level of scrutiny.

TENNESSEE
LAW REVIEW
3. The
Public
Choice
Fallacy
One
of the alleged virtues of
the common use test is
that it
supposedly reflects
consumer choice and thus
allows Americans, as a
whole, to exercise
the Second Amendment
right in the way they
decide is best.
68
Superficially, this is an advantage
the common use
test shares with the test the Court established in Kyllo v. United
Statesl
69
for determining
whether the government's
use of a
particular technology constituted
a search by looking at
whether the
technology
the
government
used
was
in general
public
use.1
70
However,
the advantage is lessened
by the difference between the
two rights.
The Fourth Amendment's
underlying concern is privacy,
while the Second Amendment's underlying concern is physical
safety. Unlike physical safety, privacy is a concept that is directly
tied to the popular mores of the day.171 Thus, while a test based on
the popularity of a particular technology might make sense in the
Fourth Amendment context, it is less appropriate in the Second
Amendment context.
However, even taking the goal of reflecting public sentiment at
face value, the common use test fails to accomplish this goal. For the
reasons
stated above, governments
and firearm manufacturers
actually
have at least as much,
if not more control than
average
Americans over which weapons end up in common use. But even
setting those concerns
aside,
the common use
test, at least as it has
been applied by the courts so far, fails to actually reflect the self-
defense
choices of most
Americans.
The problem
is, as demonstrated in
the cases above, in
determining common use, courts tend to rely on the raw number of
weapons that are in private
hands without putting those
numbers
168. See
Jensen-Haxel,
supra note
147, at
471 ("[I]ndividual
autonomy,
as with
many fundamental
rights,
may be an important consideration
in defining the scope
of protection.");
Michael P. O'Shea,
The Right
to Defensive Arms
After District of
Columbia v.
Heller, 111 W.
VA. L. REV. 349,
386 (2009) ("That
hundreds of
thousands, indeed millions of individuals choose a particular means of participating
in constitutionally protected conduct is powerful prima facie evidence that the chosen
means is itself
deserving of protection. In other
constitutional contexts, wide
deference is given to individuals'
chosen means for exercising a constitutional
right-
even
if most judges
and other elites
might find the people's
choice as unseemly
and
ill-adapted as, say, the decision to engage in political protest by wearing a jacket that
reads
'Fuck
the Draft."').
169.
533
U.S. 27
(2001)
(Scalia,
J.).
170.
See id.
at 40.
171.
See United
States
v. Jones, 132
S. Ct. 945,
962 (2012)
(Alito, J.,
concurring)
("New
technology may provide increased
convenience or security at the expense
of
privacy,
and many
people may find
the
tradeoff
worthwhile.").
270
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2015] SECOND
AMENDMENT "TYPE
OF WEAPON" ANALYSIS 271
into any context. But context is quite important. For example, in
analyzing assault weapons bans, some courts have highlighted the
fact that several million AR-15 type rifles have been manufactured
over the last few decades.1
72
Even assuming that manufacturing
statistics necessarily reflect ownership1
73
and that several million is
enough to constitute common use, this statistic still fails to
demonstrate that AR-15 type rifles are really commonly chosen for
self-defense.
That is because this
statistic fails to account for
the fact
that some people, probably a great number, own more than one AR-
15
style rifle.1
74
Thus, these statistics
do not reflect any widespread
popularity
of the AR-15 style rifle,
but rather reflect these weapons'
popularity with a relatively small number of people building
personal
arsenals.17s
This is a problem that is likely to arise with respect to many
categories
of firearms because gun
ownership is becoming more
concentrated
in the
United States.
7 6
One 2004 study found that 20%
of the
nation's gun
owners own
65% of
the nation's
guns.1
77
It is
likely
that this concentration has
only increased since then
as more
recent surveys
have found a drop in
the percentage of Americans
who
say they own any guns1
78
despite
record numbers of background
checks
being processed
by the federal
government.1
79
This concentrated
ownership gives
courts a skewed picture
of
which
guns
are
in
common
use.
By
simply
looking
at
raw
numbers,
courts
will extend the Second Amendment's protection to new
172. See discussion of NYSRPA
and Heller II, supra
Section IV.A.
173.
A potentially dubious assumption
for the reasons discussed in
the next
subsection.
174. See Kolbe v. O'Malley, F. Supp. 3d 768, 786 & n.23 (D. Md. 2014) (citing
declaration testimony
indicating that the average owner
of an AR or AK platform
rifle owns 3.1 such weapons).
175. See id.
176. See, e.g., id.
177.
See
Allison
Brennan,
Analysis:
Fewer
U.S.
Gun
Owners
Own
More
Guns,
CNN (July 31, 2012, 8:05 PM), www.cnn.com/2012/07/31/politics/gun-
ownership-declining/.
178. This also highlights
a potential under-protection
problem. If the decline in
gun
ownership
rates
continues,
even
if
the
remaining
gun
owners
own
many
guns,
there could come a point at which no guns are in common use. At that point, under
the
common use test, the government
would theoretically be able to ban
all guns.
179. See Sabrina Tavernise &
Robert Gebeloff, Share of Homes with
Guns Shows
4-Decade Decline, N.Y. TIMES (Mar.
9, 2013), www.nytimes.com/2013/03/10/us/
rate-of-gun-ownership-is-down-survey-shows.html (noting that according to a 2012
survey,
only
34%
of
Americans
reported
having
a
gun
in their
home,
a historic
low,
but also noting that the number of background checks has "surged" since the late
1990s).

TENNESSEE
LAW
REVIEW
[
weapons
based on the preferences
of a shrinking number
of gun
enthusiasts. This greatly diminishes the common use test's supposed
value as a reflection of Americans'-or even gun owners'-collective
self-defense preferences.
4. The Data
Problem
A practical problem with
the common use test is that
the data on
firearm ownership necessary to evaluate whether the test is satisfied
in any given case simply does not exist. The United States has no
national registry recording firearm ownership, nor do most states
have such registries.so For that reason, courts have been forced to
rely on secondary indicators of firearm ownership, most commonly
production and import
data, sales data, and survey
data.
181
Each of
these sources is inadequate and potentially problematic.
Production and import data presents the obvious problem that it
does not
necessarily reflect which guns
were actually sold. Of course,
a smart company is unlikely to continue manufacturing or importing
a type
of gun that is not selling
well, but an adjustment
in
manufacturing
or imports would likely
be a lagging indicator of any
decline or rise in the popularity of a weapon among consumers. A
related problem is that manufacturing and import data will reflect
what companies think consumers want to buy now or perhaps in the
next few months or years, not what they already own. This will lead
courts to overestimate the popularity of more "contemporary" guns
while underestimating the popularity of guns that may indeed be
widely owned but were bought
a long time ago and are
not widely in
demand today.
More fundamentally, manufacturing data is unlikely to provide
enough specific
information to be of use
to courts because "firearms
manufacturers generally don't break
down their production statistics
180. See Registration of
Firearms Policy Summary, LAW
CTR. TO PREVENT GUN
VIOLENCE (Oct.
1, 2013), smartgunlaws.org/registration-of-firearms-policy-
summary/ (noting that only Hawaii
and the District of Columbia
require the
registration of all firearms). The federal government does require the registration of
machine guns. Id. A few states maintain records of some firearm transfers that could
be used as a basis to estimate ownership, but since those records are primarily kept
for the purpose of tracking the transfers rather than ownership, they would likely be
of limited utility. See Kolbe, 42 F. Supp. 3d at 784 n.21 ("Since 1994, Maryland has
gathered information regarding the transfer of regulated firearms. It is important to
note, however, that all transfers were recorded, even if the transfer was of a firearm
previously transferred... .In this way, the information collected by Maryland may
overstate
the number of regulated
firearms.") (citations omitted).
181. See, e.g., Heller v. D.C. (Heller II), 670 F.3d 1244, 1287 (D.C. Cir. 2011).
272
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by model."
8 2
Perhaps for competitive reasons, gun manufacturers
simply do
not publicly release
data at the fine
level of detail that
would be necessary to draw conclusions in cases challenging laws
that target very specific firearm characteristics. For this reason,
manufacturing data (and probably import data) will seldom be of
much
use in applying the
common use test.
Sales data
also is not likely to be
a good barometer of common
use. Like manufacturing
data, it suffers from
the problem of only
reflecting consumers' current choices, rather than the types of guns
consumers may have purchased many years ago. Sales data is also
elusive because information submitted to the federal government to
obtain background
checks does not include
any information on the
specific
type
of
firearm
the
purchaser
attempted
to buy.1
83
Moreover,
even if such records were kept in connection with background
checks,
a significant portion of firearm
transfers are conducted
without background checks at all through so-called "private"
transfers (transfers that do not involve a federally licensed firearms
dealer).'
84
When it comes to the sale of ammunition and other
accessories, no background checks are conducted at all in most
states.
For these reasons, the only sales data available is the data that
is voluntarily released by firearms retailers. Such data is likely to be
lacking both in its
level of detail about the specific
weapon types
182. See Peters, supra note 22.
183. See
28 C.F.R. § 25.9(b)(1) (2009) (listing
the types of information logged
for
each criminal background
check conducted). Even the data
that is collected in order
to conduct these checks must be erased within twenty-four hours if the purchase is
approved. See 28 C.F.R. § 25.9(b)(1)(iii) (2009). However, the federal government
does keep data on the raw number of background checks conducted by state and by
date. See FBI, NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS)
Operations
2013 (2013), www.fbi.goviabout-us/cjis/nics/reports/2013-
operations-report.
184.
See Philip J. Cook & Jens Ludwig,
Guns in America: National
Survey on
Private Ownership and Use of Firearms, NAT'L INST. OF JUST.: RES. IN BRIEF 6-7
(1997), available at www.ncjrs.gov/pdffiles/165476.pdf. The exact percentage
of transfers
conducted without background
checks has been the subject of some
dispute in recent years in
the debate over whether to expand
the background check
requirement to private transfers. See Glenn Kessler, Obama's continued use of the
claim that
40 percent of
gun sales lack background
checks,
WASH. POST:
FACT
CHECKER (Apr. 2, 2013), www.washingtonpost.com/blogs/fact-checker/post/
obamas-continued-use-of-the-claim-that-40-percent-of-gun-sales-lack-background-
checks/2013/04/01/002eO6ce-9bOf-11e2-a941-al9bee7af755_blog.html.
However,
the
basic
point
for my
purposes,
whether
the number
is
as high
as 40%
or as
low as
10%,
is that
such checks do not cover some
sizeable portion of firearm transfers
in
the
United
States.

TENNESSEE
LAW
REVIEW
purchased
and in completeness because
of the large number
of
firearms
dealers in
the United
States.
18 5
Thus,
sales data
is also
unlikely to be helpful in applying the common use test.
Perhaps the best form of
data available to approximate
firearm
ownership is survey data. However, even survey data is unlikely to
be sufficient for
purposes of the common
use test because most
polling
questions about gun ownership
are much broader than
would
be helpful. Polls usually track questions like whether anyone in the
household
owns
"a gun"
generally,
without
asking
about
the
type.18
6
This type of information may be helpful in determining the size of
the total pool of gun owners to the extent that is relevant, but it is
unlikely to help courts get very far when it comes to determining
whether weapons with
very specific features are
in
common use.
Although one could argue that the existence of the common use
test will lead to the creation of more robust data in the future, that
is unlikely to occur because data on firearms sales and ownership is
deliberately cloaked in secrecy by the firearms industry and pro-gun
groups. Unlike many other industries, trade groups representing the
firearm
industry
do not
release
sales data
as a regular
practice.'
8 7
Moreover, pro-gun groups have actively-and successfully-lobbied
against any efforts by the federal government to gather data on
firearm sales through its background check system or other
means.1
88
Similarly, the gun lobby has successfully suppressed
185. See U.S. DEP'T OF JUSTICE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, &
EXPLOSIVES, REPORT
OF ACTIVE FIREARMS LICENSEs-LICENSE
TYPE BY STATE
STATISTICS 2 (July 10, 2014) (showing just over 140,000 federally licensed firearms
sellers), available
at www.atf.gov/file/17071/download.
186.
See,
e.g.,
Washington
Post-ABC
News
poll
April
11-14,
2013,
WASH.
POST,
apps.washingtonpost.com/g/page/politics/washington-post-abc-news-poll-april-
11-14-2013/105/ (asking whether
"you or anyone in your house own
a gun or not?")
(last
visited
Dec.
26,
2015).
187. See Josh Horwitz, When It Comes to Data on Firearm Sales, Gun Lobby Still
Shooting
Blanks, HUFFINGTON POST (Feb.
6, 2012, 7:20 AM), www.huffingtonp
ost.comljosh-horwitz/when-it-comes-to-data-on b_1256769.html (noting that while
"[v]irtually every other industry in America offers the media actual data on sales[,]"
the firearm industry does not).
188. See 28 C.F.R. § 25.9(b)(3) (2014) (forbidding the FBI or any other
government agency from using background check data "to establish any system for
the
registration of firearms, firearm owners,
or firearm transactions or dispositions
.....
); Robert
Draper,
Inside
the Power
of the
N.R.A.,
N.Y. TIMES
(Dec.
12, 2013),
www.nytimes.com/2013/12/15/magazine/inside-the-power-of-the-nra.html
("[A]
chief talking
point of the gun lobby was that
universal background checks might
enable
a
government
agency
to
compile
a national
registry
. . ..");
Amanda
Terkel,
Federal Gun Registry Is The New Death Panels, HUFFINGTON POST, (Apr. 17, 2013,
1:21
PM), www.huffingtonpost.com/2013/04/17/federal-gun-
274
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ANALYSIS 275
federal
funding
for research
on
firearms,
which
will make
it less
likely that more
rigorous,
detailed studies
will be done
on gun
ownership patterns.
189
Thus,
it is unlikely
that, even
with the
common use
test in place, a
new source of
data will emerge
to help
courts evaluate
whether particular weapons
pass that test.
19 0
5. The Doctrinal Problem
The above problems
could be dismissed
as mere disagreements
with the
policy results
of the test if
the test were
somehow required
registry-n_3101204.html
("In the days leading up to Wednesday's
Senate vote on gun
legislation amendments,
the talking point that has taken
off most amongst
conservatives as a reason to oppose the background check compromise is that it
would
lead
to a
national
database
of
gun
owners.");
see
also
James
W.
Porter
II,
Registered Firearms
Today; Confiscated Firearms
Tomorrow, NAT'L RIFLE Ass'N
INST. FOR LEGISLATIVE
ACTION (Apr. 1, 2014),
www.nraila.org/news-
issues/articles/2014/4/registered-firearms-today-confiscated-firearms-tomorrow.aspx
(arguing that any system of registration will lead to "confiscation" of firearms).
189. See Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, §§ 218, 12
Stat. 786, 1085 (2011), 125 Stat 786, 1085 ("None of the funds made available [to the
Department of Health & Human Services] may be used, in whole or in part, to
advocate or promote
gun control."); Michael de Leeuw,
Let Us Talk Past Each Other
for a While: A Brief Response to Professor Johnson, 45 CONN. L. REV. 1637, 1647
(2013) (noting that after
the quoted appropriations language
was first adopted in
1996, "[rnightly (or wrongly) the CDC took this admonition seriously and essentially
stopped all research into firearms-related health issues."); Michael Luo, N.R.A.
Stymies
Firearms
Research,
Scientists
Say,
N.Y.
TIMES
(Jan.
25,
2011),
www.nytimes.com/2011/01/26/us/26guns.html
("The
amount of money available
today for studying the impact of firearms is a fraction of what it was in the mid-
1990s, and the number of scientists toiling in the field has dwindled to just a handful
as a result,
researchers say."). Moreover, pro-gun
groups' suspicion of attempts
to
gather data on firearm ownership may lead to lower response rates on any surveys
that are attempted to measure firearm ownership in more detail.
190. The only other potential source of firearms data is "gun tracing" conducted
by the FBI for local law enforcement in connection with criminal investigations. Gun
tracing tracks
a particular weapon to its point
of sale and does require recording
the
exact
type
of firearm
involved.
See
U.S.
DEP'T
OF
JUSTICE
BUREAU
OF ALCOHOL,
TOBACCO,
FIREARMS,
& EXPLOSIVES,
FIREARMS
TRACE
DATA:
ALABAMA
2 (2012),
www.atf.gov/sites/default/files/assets/statistics/tracedata-2012/2012-trace-
data-alabama.pdf.
However, that data has important
limitations, including the fact
that the FBI only conducts
traces on guns where it is
requested by local law
enforcement
agencies, therefore making
the sample contained in the trace
data not
random. See id. More fundamentally, trace data reflects the type of guns used in (or
suspected of being used in) crimes,
whereas the common use test
is concerned with
guns that are owned for lawful purposes. See N.Y. State Rifle & Pistol Ass'n v.
Cuomo (NYSRPA),
990 F. Supp. 2d
349, 364-65 (W.D.N.Y. 2013).

TENNESSEE
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REVIEW
by the constitutional
text. After all, a constitutional
mandate's
failure
to work
in practice should
not give courts
license to
ignore it.
Even if the
test were merely required
by long-standing precedent,
that would at least provide some reason for trepidation in suddenly
going in
a different direction. However,
the common use test is not
mandated
by the Constitution or precedent
at all and is in fact
inconsistent with the other (more important) parts of Heller.
The Second Amendment's
text obviously contains
no explicit
limitation on
the type of "arms"
it protects.'
9
' As the court
found in
Heller, it "extends,
prima facie, to all instruments
that constitute
bearable arms
. .". 192 The Court, of course,
would limit this broad
scope
with the common use test.
But the source of that test
is not
purported
to be the constitutional
text, but rather the Court's
earlier
decision
in
Miller.1
9
3
However,
the Court's supposed
reliance on Miller does not
hold
up
to scrutiny. Miller does not
apply the common use test
at all.
Instead, Miller found
the short-barreled
shotgun at issue
unprotected by the Second
Amendment because
it was not "any part
of the ordinary military
equipment ...[and] could
[not] contribute to
the common defense."194 This is a test tied to that Court's conception
of the Second Amendment as having the "obvious purpose to assure
the continuation
and render possible
the effectiveness of [militia]
forces .. .."195 Only after making that clear, does the Court mention
"that
ordinarily when
called for
service [men serving
in the
militia]
were expected to appear bearing
arms supplied by themselves
and of
the kind in common use
at the time."1
96
This one sentence
hardly
represents the
creation of a common use test,
particularly when the
Court applied
a completely different test in
actually determining the
outcome of the case.
Moreover, in
other aspects of its analysis,
the Heller Court went
to great lengths to criticize and undermine any precedential value
Miller may have had. The
Court noted that "[i]t is
particularly
191.
U.S. CONsT.
amend.
II.
192.
554
U.S. 570,
582
(2008).
193. See id. at 623-27; see also Joseph Blocher, Categoricalism and Balancing in
First and Second
Amendment Analysis, 84 N.Y.U. L.
REV. 375, 419 (2009) ("Although
[extending the protection of the Second Amendment only to arms in common use] is
probably in line with
contemporary popular understanding
of the Second
Amendment, it is difficult to justify based on a categorical reading of the
Amendment's text or original understanding.").
194. United States v. Miller, 307 U.S. 174, 178 (1939) (alteration in original).
195. Id. ("[The Second Amendment] must be interpreted and applied with that
end in view.").
196. Id. at 179.
276
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wrongheaded to read
Miller for more than what
it said, because the
case did not
even purport
to be a thorough
examination
of the
Second Amendment."
9 7
The
Court explained
that Miller
was decided
under strange
circumstances
because
the defendants
made no
appearance
in the case,
so the Court
only heard
from the
government.1
98
This
fact alone
was
"reason enough,"
for
the Court
in
Heller,
"not to make
[Miller] the
beginning
and the end
of this
Court's
consideration
of the
Second
Amendment
[."199 The
Court
also
criticized
Miller
as a
source of
the meaning
of
the Second
Amendment
because it
contained "[n]ot
a word (not
a word) about
the history
of the Second
Amendment."
200
In light
of the Court's finding
that Miller was completely
unworthy
of reliance in determining the
central question in Heller,
it
makes no
sense to twist Miller's language
in knots to divine the
meaning
of the term "arms" in the Second
Amendment. Whether the
Court wanted to explicitly admit it or not, Miller was relying on a
collective
understanding
of the Second
Amendment
that the Heller
Court was abandoning. Therefore, there was no need or reason for
the Court
to have relied on Miller in
determining any part of the
scope of the
new individual
right it was recognizing.
20
The common
use test is also in some
tension with the asserted
central purpose
of the right to keep
and bear arms identified
by
Heller.
The Court repeatedly
described
the right
(or at least its
core
197. Heller, 554 U.S. at 623.
198. Id.
199. Id.
200. Id. at 624.
201. See Peruta
v. Cnty. of San Diego, 742 F.3d
1144, 1155-56 (9th Cir. 2014),
vacated
and reh'g en banc granted, 781
F.3d 1106 (9th Cir. 2015) (citations
omitted)
("[S]ome
cases
are
more
equal
than
others.
That's
because,
with
Heller
on
the books,
the Second
Amendment's original meaning is
now settled in at least two relevant
respects. First, Heller clarifies that the keeping and bearing of arms is, and has
always been, an individual right. Second, the right is, and has always been, oriented
to the end of self-defense. Any contrary interpretation of the right, whether
propounded in 1791 or just last week, is error. What that means for our review is
that
historical
interpretations
of
the right's
scope
are of
varying
probative
worth,
falling generally
into one of three categories
ranked here in descending order:
(1)
authorities that understand bearing
arms for self-defense to be an
individual right,
(2) authorities that understand bearing arms for a purpose other than self-defense to
be an individual right, and (3) authorities that understand bearing arms not to be an
individual right at all."); see also Don B. Kates, Jr., Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 259 (1983)
("[T]he 'ordinary military equipment' criterion is infected by Miller's conceptually
flawed concentration on the amendment's militia purpose, to the exclusion of its
other objectives.").

TENNESSEE LAW REVIEW
component) as
the "the inherent right
of self-defense . .
.
."202
However,
the common use test
has nothing whatsoever to
do with
self-defense.
Its origin is in the
way people served in militias
at the
time of the founding,
while its application
in the modern context
focuses on market
share. While both of
these things might be
tangentially
related to self-defense,
2 03
neither
is directly
tied to
modern self-defense in any
meaningful way. A gun
can become
popular for reasons that
have nothing to do with its
usefulness for
self-defense,
such
as cost, heavy
marketing, or
usefulness for
some
other
purpose (i.e.,
sports shooting).
Conversely,
a gun (or
other
weapon)
that is unpopular may nevertheless
be highly useful
for
self-defense.
The test for determining
what arms are protected
should not be so divorced from the right's central self-defensive
purpose.
B. Proposed Alternatives to The Common Use Test
I am not the first to criticize the common-use test, and a few
alternative approaches have been suggested. However, each of these
alternativeS
204
suffers from its own deficiencies that make it an
unsatisfying choice to replace the common-use test. One test would
ask whether a particular firearm is a "descendant" of a firearm that
was in common use at the time of the founding.
205
A second proposal
would tie protection of firearms to law enforcement's firearm
202. Heller, 554 U.S. at 628; see, e.g., id. at 599, 606, 616 ("The prefatory clause
does not suggest that preserving
the militia was the only reason
Americans valued
the ancient right;
most undoubtedly thought it even
more important for self-defense
and hunting. . ..[Although] self-defense had little to do with the right's codification;
it was the central component of
the right itself.. ..Tucker elaborated
on the Second
Amendment:
'This may be considered as the true
palladium of liberty .. .. The right
to self defence is the first
law of nature: in most governments
it has been the study of
rulers
to confine the right within the narrowest
limits possible.'. . .It was
plainly the
understanding in
the post-Civil War Congress
that the Second Amendment
protected an individual right
to use arms for self-defense.') (internal
quotation
marks omitted).
203. The weapons used in the militia at the time of the founding were probably
similar to
weapons used for self-defense, and
today's consumer preferences
in
firearms probably
in some ways reflect self-defense
preferences.
204. This does
not purport to be an exhaustive list
of all ideas that have been
suggested, but the ideas described in this section represent some of the major themes
that have been proposed.
205.
See Kates, supra
note 201, at
259.
278
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279
choices.
2
06
A third
would
ask
whether
a
given
weapon
is materially
more
dangerous
than
the
handguns
at
issue
in
Heller.
207
1. The
Lineal
Descendant
Test
The
lineal
descendant
test
was proposed
by some
scholars
prior
to
Heller
and
at
least
implicitly
embraced
by
the
D.C.
Circuit
in
the
opinion
that
was
reviewed
in
Heller.
20
8
Although
there
are
several
variants
of
it, this
approach,
either
in
addition
to
or instead
of the
common-use
test,
asks
whether
the
weapon
at
issue
is
one
that
is
"lineally
descended
from
the kinds
of
weaponry
known
to the
Founders."
209
While
this
approach
has
the
virtue
of
some
link
to
history,
it
would
create
more
problems
than
it
would
solve.
The
lineal
descendent
test
is
unlikely
to be
a good
solution
because
it
is unworkable
and
just
as disconnected
from
the central
purpose
of
the
Second
Amendment
right
as
the
common
use test.
2
10
The practical
difficulty
lies
in determining
which
guns
are in
fact
"descendants"
of founding
era
weapons.
In
some
sense,
every
modern
firearm
is descended
from
some
earlier
weapon
because
of the
inherently
iterative
nature
of all
technological
development.
The test
must
necessarily
be narrower
than
that.
But
what
aspect
of
a
firearm
makes
it a
descendant?
The
D.C.
Circuit
seemed
to
think
today's
semi-automatic
handguns
are lineal
descendants
of colonial
era
muskets.
211
But
would
a
3D printed
handgun
that
is
otherwise
identical
to
other
modern
handguns
similarly
be considered
a
descendant?
Do large
capacity
ammunition
magazines
count
as
lineal
descendants
because
firearms
at
the time
of
the founding
also
had
some
amount
of
bullets?
If
so,
would
that
mean
that
any
capacity
magazine
(i.e.,
a 100
round
magazine)
would
necessarily
be
a lineal
descendant?
These
questions
are
extremely
difficult
to
answer
and
would
likely
devolve
into
an
arbitrary
line
drawing
exercise.
2
12
206.
See
Lerner
&
Lund,
supra
note
153,
at
1411-12.
207.
See
Volokh,
supra
note
24,
at
1481-83.
208. See Parker v. D.C., 478 F.3d 370, 398 (2007); Jerry Bonanno, Comment,
Facing
the
Lion
in the
Bush:
Exploring
the Implications
of
Adopting
an Individual
Rights
Interpretation
of
the
Second
Amendment
to the
United
States
Constitution,
29
HAMLINE.
L.
REV.
463, 484
(2006);
Kates,
supra
note
201, at
259.
209.
See Kates,
supra
note
201,
at
259.
210.
To the
extent
this
test
is
simply
added
to
the common
use
test
(i.e.,
by
requiring
that
a weapon
be lineally
descended
in addition
to being
in common
use)
it
retains
many
of the
problems
the
common
use test
has
on its
own,
discussed
supra.
211.
See Parker,
478
F.3d
at 398.
212.
See
John
Zulkey,
Note,
The Obsolete
Second
Amendment:
How
Advances
in

TENNESSEE
LAW
REVIEW
More problematically, this
test suffers from the same
problem
that the common
use test does in that it disconnects
the scope of the
word "arms" from the self-defensive purpose of the right. Whether a
particular weapon is a lineal descendant of a weapon in use at the
time of the founding (however courts would ultimately end up
applying that test), has little relationship to whether that weapon
would be helpful for modern self-defense. Consider, for example, the
taser. Tasers generally work by shooting "two small, needle-like
tethered probes 135-160 feet-per-second into the skin or clothing of a
target using compressed nitrogen. The probes instantly emit a
pulsating, electrical charge on contact that lasts an uninterrupted
five to seven secondsf" in order to (non-lethally) subdue the
target.
213
It would be hard to argue that tasers are descended from
any
kind
of weapon
that
would
be
familiar
to the
founders,
and
yet,
they can be highly useful to modern people for self-defense-perhaps
even more so
than a handgun.
2 14
The lineal
descendant test simply
replaces the common
use test's misplaced focus
on popularity with a
misplaced inquiry into firearms history that remains disconnected
from
the Second
Amendment right's
central purpose.
2. The
Law Enforcement
Test
Another intriguing test suggested in the scholarship is to tie
which weapons are protected
by the Second Amendment
to those
that are commonly used by law enforcement.
215
Different proposals
have incorporated this concept
differently into various
tests;
2 16
but
Arms
Technology
Have
Made
the
Prefatory
Clause
Incompatible
with
Public
Policy,
U. ILL. J.L. TECH. & POL'Y 213, 232, 232 n.138 (2010) ("Given that technology does
not
have clear-cut
predecessors
and family
lines
the
way humans
and animals
do,
there is no objective
test to determine which weapons
are or are not the lineal
descendants of revolutionary-era
weapons."); see also Volokh, supra
note 24, at 1477
("The trouble
with [a lineal descendants test] is
that all civilian firearms are in some
ways both modifications
of military firearms and technological
advancements on past
civilian firearms.").
213. Wright, supra note 127, at 163-64.
214. See id. at 181-89 (arguing
that tasers are particularly
useful for self-
defense because of the lessened likelihood compared with firearms that they will be
used
to
injure
the user
or
injure
someone
else unlawfully);
see
also
Lerner
&
Lund,
supra
note 153, at 1398 ("Judged by ease
of use and minimization of harm,
pepper
spray and Tasers are generally superior to traditional lethal weapons, such as
handguns and shotguns.").
215. See Lerner & Lund,
supra note 153, at 1411-12; O'Shea,
supra note 168, at
391-92.
216. Professor O'Shea's
proposal calls for looking
to both the popularity of a
weapon among the general public
(i.e., the common use test) and to
the popularity of
280
[Vol.
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2015] SECOND AMENDMENT "TYPE OF WEAPON" ANALYSIS 281
the basic idea is that if a weapon is commonly issued to police to
carry out law enforcement
functions, then that is strong evidence
that it qualifies for protection under the Second Amendment.
Proponents of
this test argue, probably correctly,
that it would solve
the under-protection problem because
governments are unlikely to
bar their police
from adopting new useful self-defense
weapons even
if governments
might be inclined to ban civilian
possession of those
weapons.
2 17
However, the test would create numerous other
problems.
The main issue is that police and civilians are not at all similarly
situated with respect to self-defense. Unlike civilians, police are
highly trained in how to operate their firearms under particularly
stressful
circumstances.
218
Also unlike civilians,
police, by the
nature
of their job, may put themselves into dangerous combat-like
situations and may also make themselves targets for heavily armed
criminals. For these reasons, it may
be more appropriate for police
officers to carry deadlier weapons
than would likely be
necessary for
civilian
self-defense needs.
Moreover, rendering police unable to possess better weapons
than those available
to the general population
would encourage an
arms race between police
and criminals. If every time
the police get
a new sophisticated weapon, that weapon must be made available to
the
public,
then
criminals
will
also
gain
access
to
that
weapon,
a weapon
among police departments. O'Shea,
supra note 168, at 391-92.
Professors
Lerner & Lund would
have the courts "adopt a presumption
that civilians may
employ self-defense technologies
in widespread use by the police,"
which would be
"rebuttable by sufficiently strong
evidence that a particular device
is suitable for
police work
but not for civilian use." Lerner
& Lund, supra note 153, at 1411-12.
217. See O'Shea,
supra note
168, at 391.
218. See Kolbe v. O'Malley, 42 F. Supp. 3d 768, 798-99 (D. Md. 2014) (citations
omitted) ("In Maryland,
law enforcement officers who
wish to carry firearms must
successfully complete the applicable
firearms classroom instruction,
training, and
qualification. They must then submit to firearms training every year thereafter. If
the officers do not submit
to the required annual training, their
firearms are seized
until
the training is completed. In addition
to receiving extensive training
on the use
of firearms generally, law enforcement officers must receive further specialized
training to use assault weapons.
They are taught how and when
assault weapons
may be used,
as well as techniques to minimize
the risk of harm to innocent civilians.
Even after they have received this training, they must undergo periodic
requalification
to continue carrying assault
weapons in the line of duty. Retired
law
enforcement
officers
have
also received
training
on
the use
of LCMs;
in
particular,
they have been taught how to assess each shot for effectiveness and how to evaluate
the circumstances before continuing to fire additional rounds. Finally, they have
received judgment training
on the use of deadly force and how
to safely handle and
store firearms,
including in their
homes.").

TENNESSEE LAW REVIEW
leaving
the police to look for a still
more advanced weapon to
regain
the upper hand. This cycle unfortunately already goes on to some
extent as it is, and there is no reason to create a test for Second
Amendment
analysis that would further
encourage it.219
3. The Handgun Dangerousness Test
One approach that has been suggested-and the one that is most
similar to my own proposal-asks whether the weapon at issue is
materially more dangerous than a handgun or other weapon already
in common use.
220
The
idea is because weapons in
common use, such
as handguns, were
already approved by Heller,
then any weapons
that are of equivalent
or lesser dangerousness
than those guns
should
be allowed.
22 1
Conversely,
any weapons that are
more
dangerous
than those already
approved in Heller should
be
unprotected because the exemplar weapons Heller listed as
unprotected (machine guns and sawed-off shot guns) are more
dangerous
than
handguns
in common use.
2 22
This test makes
sense to a certain degree;
it would have the
positive effect of bringing some of the attention back to the weapons
themselves and their dangerousness instead of ancillary concerns
like market share and each weapon's history. However, its main
problem is that it does not
completely walk away from
the concept of
common use, which still
leaves intact many of
the problems
discussed above.
Additionally, the test's singular focus on dangerousness probably
would create
some issues. For example,
a weapon may be developed
(or may
already exist) that is more dangerous
than a handgun but
more useful for self-defense. Under this test, because the weapon is
considered more dangerous than a handgun, it presumably could be
banned without examining its self-defensive utility. Or, on the other
side of the coin, this
approach would not allow much
room for safety
219. It might be
argued by some that putting the
police and civilians on equal
footing is exactly what the Second
Amendment was intended to do
(i.e., to create a
bulwark against
tyranny). See, e.g., David Pittman,
Note, Heller: A Bulwark Against
Tyranny, 8 APPALACHIAN J.L. 201, 202 (2009). However, this purpose of the Second
Amendment
right was not endorsed by
Heller, with the Court acknowledging
that "it
may be true that
no amount of small arms could
be
useful against modern-day
bombers and tanks." See
D.C. v. Heller, 554 U.S. 570,
627 (2008).
220.
See Michael
S. Obermeier, Comment,
Scoping
Out the Limits
of "Arms"
Under
the
Second
Amendment,
60 U.
KAN. L.
REV.
681,
718-20
(2012);
Volokh,
supra,
note 24, at 1481-83.
221. See Volokh,
supra note 24, at
1481-82.
222. See id.
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