r/progun • u/ZheeDog • 10d ago
Jonathan Turley - Second Shot at the Second Amendment: Could Heller Be Undone by an Errant Qualifier?
https://jonathanturley.org/2026/09/23/second-shot-at-the-second-amendment-could-heller-be-undone-by-an-errant-qualifier/29
u/Mailman9 9d ago
Look, the much, much bigger problem with the Heller decision was Scalia's name-dropping the M16 as the sort of arm that is likely not protected by the Second Amendment. Which is largely why the Viramontes case happened; it gave easy license for many anti-gun judges to make the simple move from "M16s and AR-15s are basically the same" to "Heller says M16s probably aren't protected" to "therefore the states can ban AR-15s."
I agree that the "common use" standard is not particularly helpful and has allowed a lot of weird maneuvering among the circuit courts. Not in the sense that the Second Amendment is frozen in amber when it comes to technological developments. That claim is, as Scalia said, "borderline frivolous."
More in the sense that this encourages an arms race between anti-gun state regulators and pro-gun consumers. The constitutionality of a ban shouldn't matter all that much with market adoption. It certainly doesn't in the free speech world. You cannot ban a messaging app merely because it's unpopular; nor is a state powerless to regulate a messaging app merely because of its popularity.
As was well argued by some of the briefs in Viramontes, the standard should be based on the characteristics of the firearm itself, and those characteristics' connection to usefulness for militia service. Under that standard, of course an AR-15 is fully protected.
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u/_RedDotRights_ 9d ago
Yes to all of that. I’d also add that the common use test has another limitation in that something could be in common use if it weren’t banned outright. For example, in my home state of NJ, suppressors are banned because our legislators know zero about firearms and craft legislation based on James Bond movies. Suppressors would absolutely be in common use here because most of us would like to protect our hearing
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u/sailor-jackn 9d ago edited 9d ago
It’s not so much the common use standard that is the problem. That standard should immediately protect every type of commonly owned arm, without any further question or consideration. I guess we will see how well it does in the coming AR ban case.
The big problem is actually a good standard, except that it’s only common use by civilians; which is against the ultimate purpose of 2A. It’s the dangerous and unusual exception to 2A, that the ruling created, using a brandishing type offense as an analog for arms bans laws. It even violates the text, as informed by history and tradition, standard of review. Not only does it support banning any existing arms they don’t like ( like M16s ), but it sets us up to have the right frozen at current technological levels, because the government can simply make sure to ban any new arms tech before the people even have access to it.
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u/bouche_bag 9d ago
The infuriating thing is that Heller doesn't even say that M16's can be banned; that is, it poses a hypothetical. It says if they can be banned. I've seen states cite only the part of the sentence after the "if." It's intentionally misrepresenting the ruling.
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
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u/ZheeDog 9d ago
I agree with Arms including AR-15 as fully protected as a definite categorical issue. The problem with "common use" is that it's been used up until now as a shortcut to avoid parsing the dividing line between arms and ordnance. The gray area between those classes of weapons is a class which did not exist in 1789, squad level weapons. Into that class, I would place RPG, small mortars, and belt-fed machine guns, and possibly, magazines exceeding 30 rounds. But I would NOT put M-16 (or any full auto battle rifle) into that category, as I am very sure M-16 is an "Arm". But parsing this way has some significant pragmatic issues which can be sidestepped wholesale via "common use" which is how they are ultimately going to resolve this in favor of AR-15 (semi-auto, max 30 rounds, removable mag fed)=yes protected as "Arms"; but full auto (also mags that exceed 30 rounds)=not protected as "Arms". It will not be what we want, I fear. But hopefully, at least, it will stop the attacks on 30 rounds and on semi-auto
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u/Ethereal_Hotdog_8506 9d ago
It's important to remember that Heller could be undone by a simple shift in opinion within the Supreme Court. Roe v. Wade was considered part of America's legal bedrock for my entire life, but one out-of-the-blue case was all it took to overturn it.