Ethan Yan (Yale Law School, JD ’28) has posted “Common Use” and the Right to Bear Arms (50 pages) on SSRN. Here is the abstract:
Since the U.S. Supreme Court’s holding in District of Columbia v. Heller that firearms commonly used for lawful purposes receive constitutional protection, litigants have relied on ownership statistics to challenge firearm restrictions. U.S. Courts of Appeals have raised myriad concerns about this common-use test’s wisdom, prompting the Court in June 2026 to grant certiorari to decide the constitutionality of semiautomatic-rifle bans. In anticipation of the Court’s evaluation of the common-use test this upcoming Term, this Article engages with lower-court concerns and evaluates the test’s doctrinal, textual, historical, structural, and prudential merits. While it concludes that the common-use test derives strong support from the Court’s similar Fourth and First Amendment jurisprudence—as well as the text, history, and structure of the Constitution—this Article aims to assuage critics’ fears by proposing a state-counting supplement. Under this framework, legislatures can proscribe a firearm satisfying the common-use test only if three-fourths of states have banned the firearm, reflecting the threshold for amending the Constitution. This state-counting supplement not only addresses lower courts’ concerns about circularity and preserving machine-gun bans, but also aligns with Justices’ Second Amendment opinions, the Court’s Eighth and Fourteenth Amendment doctrine, and an originalist reading of the Constitution. This Article thus provides a concrete proposal for how courts should evaluate firearm-ban cases and support for the common-use test’s doctrinal and originalist foundations—guidance directly relevant to the Court’s upcoming Term.
Posted at 6:13 AM