Government Must Prove Arms are NOT in Common Use

 Mark W. Smith, the host of the Four Boxes Diner Channel, writes today to tell us that the government bears the burden to show that an arm is NOT in common use in Spoiler Alert: 'Assault Weapon' Ban ~ Government Must Prove That Weapons Are NOT In Common Use.

Bianchi challenges the constitutionality of Maryland’s “assault weapons” ban, which seeks to outlaw the AR-15, among other semiautomatic firearms.

Tellingly, the original Fourth Circuit panel in Bianchi seemed poised to issue a pro-Second Amendment ruling, but before that occurred, the Fourth Circuit took the case en banc likely to avoid the possibility of such an outcome.

Bruen instructs that the constitutional inquiry starts with the text of the Second Amendment. This means that, at the outset, a lower court must determine whether the object of a firearm’s regulation is an “arm.”

At this first step, Bruen instructs that the burden is on the party challenging the firearms regulation to show that the item being banned is an “arm.” Heller defined “arms” as “weapons of offense or armor of defense.” There is no doubt that AR-15s and other semiautomatic rifles subject to the Maryland ban are “arms,” which means that the burden shifts to the government to show that the arms it seeks to ban are not “in common use” by Americans for lawful purposes (or are dangerous and unusual).

Bianchi is an “arms ban” case in the same way that Heller was an “arms ban” case, which struck down D.C.’s ban on owning a handgun, was an arms ban case. Heller provides the constitutional test to be applied by the lower courts in arms ban cases, and that is the “in common use” test.

There is a reason that the Fourth Circuit in Bianchi asked the parties to address when the “in common use” test comes into play.

If the “in common use” analysis occurs at the plain text level (text-first), the burden would be on the pro-Second Amendment plaintiffs to demonstrate that an arm is in common use. If, however, the inquiry occurs at the historical level (history-second), the burden rests on the government to prove that an arm is dangerous and unusual.

The anti-gun movement desperately wants the “in common use” analysis to occur at the plain text level where the party challenging the firearm regulation has the burden, but that is entirely contrary to the Supreme Court’s holding in Heller. How do we know? It’s plainly obvious from the decision itself.

Well, I have already given the probable outcome with the "spoiler alert." If this goes to the Supreme Court, as seems likely, the Court will very likely instruct the Fourth Circuit that the government that wants to ban arms must prove that the arm in question is NOT in common use. Of course, the gun grabbers want to make the argument about just how common is "common use" because such wrangling distracts from the real issue.

Courts seem reluctant to allow citizens to exercise the rights granted to them by God, and acknowledged by the Constitution. What these courts betray is a lack of belief in citizen's rights. These tyrants apparently believe that rights are granted by government, and therefore government can take them away. Such judges, at the very least should be impeached.