Machine Guns and the Common Use Test
A Nugget from the Oral Arguments Against the New Illinois Features-Based Rifle Ban
By Dr. Lucas J. Mather, Ph.D.
I just documented this nugget on The Republican Professor (TRP) Substack .
Dr. Stephen P. Halbrook, Ph.D., J.D., a guest on TRP Podcast last year for his book on National Socialists’ Love of Gun Control, wrote an article for Volokh Consiracy about the Oral Arguments in Illinois.
The Plaintiff Counsel, Erin Murphy, J.D., countered the government’s claim that the NFA proves that the government can decide what is in common use. The government, the argument went, banned machine guns, or at least restricted their common use in the 30s. (It was Democrats in power back then, btw). (You may want to keep tabs on these things–the same political party that wanted to regulate the economy from Washington, bring about the unsustainable entitlement federal budget we have now, and pretty much do whatever the hell they want).
Murphy’s argument was that the people had decided that machine guns were not in common use, not the government. The Court, in these oral arguments, seemed to have agreed with her. If the market decides at the time what is in common use, it is the people choosing through uncoerced market forces, not the people through a contemporary bare majority in the legislature (plus the executive’s signature–the executive having been elected by a bare majority at least), that determines what is in common use for Second Amendment purposes.
Check it out here on The Republican Professor Substack. And you can subscribe there.
~ Ljm, for TRP
