Heller v. District of Columbia’s ‘Common Use’ Test: How Does This Standard of Review Hold Up to the Modern American Gun Culture?

Abstract

The exercise by Americans of the right to keep and bear arms under the Second Amendment to the United States Constitution is as commonplace as — and often more popular than — the exercise of other constitutional rights and many other ordinary activities. These conclusions should inform judicial inquiry in several ways. The Supreme Court’s landmark decision in District of Columbia v. Heller established the “common use” test based on the text and original meaning of the Second Amendment and under the Supreme Court’s traditional role of enforcing national, constitutional baselines against local outliers. The Heller court established the “common use” test to decide how a court should determine whether particular objects, or arms, should be protected by the Second Amendment. Specifically, do the arms being legislated or regulated constitute arms in “‘common use’... for lawful purposes like self-defense.” This article demonstrates that the ownership and use of firearms in America is as ordinary and commonplace as many other activities viewed by the public as routine and unremarkable. First, the ownership and use of firearms pervades all demographics of society. Second, gun ownership is more common than many highly-popular, licensed activities that are considered routine and unremarkable by most Americans. This article concludes that the widespread ownership and use of firearms in America should inform the judicial enforcement of the Second Amendment in a manner favorable to those seeking broader protections of this fundamental individual, constitutional right.