2026-08-26 · originalism
“Common Use” Is Not a Founding Limitation
Prosecutors treat “in common use” as if the founding wrote it into the Second Amendment. They did not. The phrase is a modern judicial construct — drawn from an incomplete-record line in Miller and adapted in Heller — not original meaning.
In an earlier essay we showed that United States v. Miller does not permanently ban short-barreled arms or suppressors. This is the next cut.
Prosecutors and regulators now use a different move from the same case: they say only arms “in common use” are protected. If a firearm is uncommon, military-pattern, or supposedly “unusual,” they claim it falls outside the Second Amendment entirely.
That claim is not founding law. Here is why, without the bank jargon.
What the Constitution Actually Says
The operative clause is plain:
the right of the people to keep and bear Arms, shall not be infringed.
It does not say “arms in common use.” It does not say “arms already popular with civilians.” It does not say “arms the government finds ordinary.”
Look for the missing words in the places that matter:
- the Constitution itself
- the Bill of Rights debates in the First Congress
- the Federalist and Anti-Federalist papers
- the state ratification conventions
- the principal founding-era treatises
They are not there.
The founding generation treated the right as pre-existing the Constitution — belonging to the people for self-defense and the common defense. A popularity filter is not how they defined “Arms.”
Where the Phrase Actually Comes From
The language comes from United States v. Miller, 307 U.S. 174 (1939). The Court wrote that militia members were “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
That sentence sat inside a failure-of-proof decision. The defendants did not appear. The government put on no evidence that a short-barreled shotgun had a reasonable relationship to a well-regulated militia. So the Court said it could not find protection on that empty record.
Miller did not hold that uncommon or military-pattern arms are categorically outside the Amendment. It held that the Court lacked facts.
Reading “common use” as a founding ban on military-capable arms also inverts the sentence’s own premise. Militia members were expected to bring arms fit for militia service — not whatever was already fashionable among non-militia civilians.
What Heller Did — and Did Not Do
In District of Columbia v. Heller (2008), the Supreme Court adapted the phrase. It read Miller to mean the Amendment does not protect weapons “not typically possessed by law-abiding citizens for lawful purposes,” and said that limitation is “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
Two points matter.
First, Heller is stating a doctrinal limitation. It is not quoting a founding text. Binding precedent is not the same thing as original meaning. Courts must apply Heller. They should not pretend the founding enacted the phrase.
Second, the tradition Heller named is a tradition about carrying, not a catalog of banned ownership. Blackstone described the offense of “riding or going armed, with dangerous or unusual weapons” as a crime against the public peace — “by terrifying the good people of the land.” That is conduct: going armed in a way that terrifies the public. It is not a rule that possession of a type of weapon is unprotected because the type is uncommon.
New York State Rifle & Pistol Ass’n v. Bruen (2022) did not invent “common use” and did not baptize it as founding meaning. It required the government, when the text covers the conduct, to show a regulation is consistent with this Nation’s historical tradition of firearm regulation.
An analogue that punished terrifying public carry does not justify a ban on possessing a bearable arm.
What the Founding Actually Shows
Founding militia practice ran the other way.
The Militia Act of 1792 required able-bodied men to appear with arms suitable for service: a good musket or firelock, bayonet, spare flints, cartridges — or a good rifle and corresponding kit. The practical reality was that citizens brought arms they owned. The legal requirement was not “whatever is already common among civilians.” It was arms fit for the common defense.
Private military character was not a founding disqualification of private arms. The Constitution itself contemplates letters of marque and reprisal — private citizens commissioned to arm vessels. That is not a claim that every modern crew-served weapon is a bearable “Arm.” It is evidence that “military” was not a dirty word that stripped constitutional protection from what free people might keep.
There were no founding-era bans on classes of bearable arms on the ground that they were uncommon or military in character.
“Common use” as a threshold gate is a later judicial gloss — an attempt to reconcile Miller with an individual-rights reading of the Amendment — not the original meaning of “Arms.”
How This Fits With the Miller Essay
The earlier essay answered the government’s stretch of Miller into a permanent ban on short-barreled arms and suppressors: incomplete record, not categorical exclusion; modern militia utility and civilian ownership matter under the tests the courts actually use.
This essay answers the next stretch: treating “in common use” as if the founding wrote a popularity requirement into the right itself.
They are the same case family. Different prosecutor lines. Same honesty demand.
- Miller does not ban the arm forever because the 1939 record was empty.
- “Common use” does not become founding text because Heller later used the phrase.
A court may still apply modern doctrine. That does not make the doctrine original law.
The Bottom Line
When the government says only arms “in common use” are protected, counsel and citizens are entitled to a straight answer:
The Constitution does not say that.
Miller did not enact that as a categorical exclusion.
The tradition Heller cited regulated terrifying carry, not ownership of a type.
Founding militia practice required arms fit for service — not a census of civilian fashion.
“Common use” is a modern judicial construct. Treat it as doctrine if the court requires it. Do not treat it as the founding meaning of the right to keep and bear Arms.
The right is to keep and bear Arms — not only arms that are already popular.