Uncommon Firearms as Obscenity
40 Pages Posted: 28 Sep 2013 Last revised: 18 Oct 2018
Date Written: September 26, 2013
This article examines the Supreme Court’s conclusion in District of Columbia v. Heller that the Second Amendment protects only those arms “in common use...for lawful purposes like self-defense.” 554 U.S. 570, 624 (2008). The article identifies ambiguities in the common-use test, as well as how the Court’s formulation of the test relies on circular logic and creates tension with other statements in Heller. Taking a cue from Heller’s numerous invocations of First Amendment doctrine, it analogizes uncommon firearms to obscenity and argues for several developments and clarifications of the common-use test. In particular, it contends that the test should evolve to incorporate a value-based prong and a federalism-sensitive community standard, like the Miller test for obscenity; that the test should be treated as a factual inquiry, rather than a legal one; and that the test might not apply to the private possession of firearms in the home. These developments would avoid the test’s circularity problem, make the test more suitable for application to modern firearm laws, remove tension between the test and other passages in Heller, and foster inter-doctrinal coherence between the First and Second Amendments.
Keywords: First Amendment, Second Amendment, Right to Keep and Bear Arms, Heller, McDonald, Common Use, Dangerous and Unusual, Obscenity, Guns as Smut, Assault Weapons, Self-Defense, Gun Control
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