One of the common tropes from anti-gunners is that even if the Second Amendment does protect an individual right to keep and bear arms, it only protects the muskets, blunderbusses, and single-shot pistols that were common at the time of the Founding. It's an argument that's facially absurd; after all, no one seriously suggests that the First Amendment only protects writing done with quill pens or produced on manual printing presses, but it's still one I see regularly regurgitated in letters to editors and social media postings.
As it turns out, though, two of the biggest gun control groups around have now declared that muskets aren't protected by the Second Amendment. According to them, hunting rifles are similarly unprotected, as are virtually every arm that's not "in common use for self-defense."
That declaration came in an amicus brief filed in support of the state of California in a case called Knife Rights v. Bonta, which is a challenge to California's ban on switchblades. A U.S. District Court judge dismissed the lawsuit after ruling that the plaintiffs "failed to prove” that switchblades are covered by the plain text of the Second Amendment, opining that they are not arms “commonly used for self-defense,” but instead are “dangerous and unusual.”
That decision is just one example of how the lower courts are misreading what the Supreme Court has said about the scope of the Second Amendment in order to uphold gun (and in this case, knife) control laws. In Heller, the Supreme Court held that "the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."
In other words, self-defense is but one of the traditionally lawful purposes for firearms, and the Second Amendment protects an individual right to possess and use firearms for other lawful purposes. In their amicus brief, however, Giffords Law Center to Prevent Gun Violence and Brady Center to Prevent Gun Violence embrace the district court judge's faulty conclusion and declare that "arms must be in common use for lawful self-defense to be protected under the Second Amendment."
Any interpretation of the Supreme Court’s reference to “in common use” must be grounded in the core of the Second Amendment right as explained in the Court’s contemporary jurisprudence: lawful self-defense. Accordingly, “in common use” cannot be separated from lawful self-defense, and the inquiry must consider a weapon’s actual use and its utility for that purpose. Indeed, the Supreme Court has ruled that weapons “in common use” include only those arms in common use for lawful self-defense. The Court made this abundantly clear in District of Columbia v. Heller when it explained that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,” and that “the core lawful purpose [is] self-defense.” The Court reiterated this position in McDonald v. City of Chicago, when it ruled that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” And most recently, in New York State Rifle &Pistol Ass’n v. Bruen, the Court ruled that “individual self-defense is ‘the central component’ of the Second Amendment right.”
The language the gun control groups cite undercuts their argument that only those arms that are in common use for self-defense are protected by the Second Amendment. Yes, the Court has repeatedly said that individual self-defense is the "core" purpose and "central component" of the right to keep and bear arms, but that language demonstrates that there are, in fact, other lawful purposes to the Second Amendment beyond individual self-defense.
What are those other lawful purposes? The Supreme Court has yet to give us a definitive list, but they would certainly include recreational shooting, competitive shooting, hunting, and collecting. According to Giffords and Brady, though, commonly owned hunting rifles, Olympic pistols, and historic firearms like the Kentucky long rifle all fall outside of the Second Amendment's protections.
This Court has recently and properly interpreted this guidance from the Supreme Court to mean that, for purposes of Second Amendment analysis, arms “in common use” are those that are chosen for and “facilitate armed self-defense”. In line with this language, district courts in this Circuit have required that a weapon be “commonly used . . . for the central purpose of self-defense,” not any other potentially lawful purpose such as hunting.
Yes, Giffords and Brady argue that this is the proper interpretation of what the Supreme Court has said in Heller, McDonald, Caetano, and Bruen.
It's deeply ironic that Brady, which began its life as the National Council to Control Handguns and advocated for a complete ban on their possession, is now claiming that handguns are essentially the only firearms that are protected by the language of the Second Amendment. From their perspective, though, this is the best argument they have at the moment.
The Supreme Court has already said that bans on handguns are unconstitutional. It hasn't said anything explicitly about bans on semi-automatic rifles, bolt-action rifles, lever-action rifles, muzzleloading rifles, semi-automatic shotguns, pump action shotguns, or any other specific kind of arm. If the goal of the gun control lobby is to eradicate gun ownership, then it makes sense that they would argue that the only arms protected by the Second Amendment are those arms that SCOTUS has explicitly said are covered by its text, history, and tradition.
It's also worth noting, though, that while Giffords and Brady have essentially declared that only handguns are protected by the Second Amendment, they're still working to ban the most common pistols in the country. Brady and Giffords both backed the passage of California's AB 1127, which prohibits the sale of Glock handguns beginning next year, and Giffords is also directly involved in litigation aimed at ending the sale of Glock pistols in the state of Minnesota. These anti-gun groups might be arguing that the Second Amendment only protects handguns, but they're also doing everything possible to prohibit those arms as well.
