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The above is agreed by all sides. "[T]hat the rifles are more accurate and easier to control is precisely why California has chosen to ban them." Rupp v. Becerra, 401 F. Supp.3d 978, 993 (C.D. Ca. 2019).
accurate/deadly = ban quote
Agreed that "common use" was a poor idea to codify into a ruling. That's how they're going to disallow us from having phase plasma rifles in the 40-watt range.The italicization of legal citations always bothers me, as does that font in the brief
I've always found the "common use" theory as circuitous. To be in common use, people have to buy the gun. To be available for sale, the gun has to be legal to buy, and, most importantly, easy for the lowest common denominator of gun owner to buy. So the gun has to be legal to buy, easy to buy, and probably cheap to buy to be in common use and thus precluded from a ban. So the gun has to be legal to buy to be... legal to buy?
Think about it, what if the antis latched onto banning MSRs back in the 60s? Say instead of attacking things like serial numbers not being on guns or mail order purchase of guns, they attacked ARs and AKs and FALs in GCA68? Doing so would've precluded the MSR market from existing. MSRs have only really become the "everyman rifle" since after the 2004 AWB.
The common use argument, I think, was thrown in by Scalia to get a 5-4 majority and really should be viewed as dicta. Common use is logically untenable. The argument boils down to, logically, "everyone's got one, so we're good!"
Keep in mind that the basis of the common use theory stems from US v. Miller, which from a pro-2A point of view, was horribly litigated. Miller, the appellant, couldn't afford to send counsel to SCOTUS for oral argument. In today's world, that wouldn't fly because the guy would have some form of appellate counsel like a public defender or court-appointed counsel. Miller is bad law and needs to be viewed as such.