The New and Very Dangerous Common Use Test (And How to Combat It)

This video, presented by William Kirk, a legal expert from Washington Gun Law, critically analyzes the evolving 'Common Use Test' in Second Amendment jurisprudence. Kirk argues that recent judicial interpretations are dangerously narrowing the scope of protected firearms by shifting focus from common possession to the frequency of actual use in self-defense scenarios. He provides a detailed legal breakdown of key cases and offers strategies to combat this trend, emphasizing the statistical prevalence of AR-platform rifles in lawful ownership.

Quick Summary

Legal expert William Kirk explains that the 'Common Use Test' protects firearms in common possession for lawful purposes. He criticizes recent judicial shifts towards a 'Common Use for Self-Defense' standard, arguing it incorrectly focuses on the frequency of actual use rather than commonality of possession, thereby undermining Second Amendment rights for commonly owned firearms like AR-platform rifles.

Chapters

  1. 00:00Introduction to the Common Use Test
  2. 00:48Key Legal Cases: Oregon and Washington
  3. 01:35Origins of the Common Use Test
  4. 02:39The Shift to 'Common Use for Self-Defense'
  5. 04:17Combatting the New Test in Banta v. Ferguson
  6. 06:47Possession vs. Active Use
  7. 08:53Statistical Reality of Lawful Ownership
  8. 10:04The Handgun Analogy
  9. 11:10Conclusion on 'Dangerous and Unusual'

Frequently Asked Questions

What is the 'Common Use Test' in Second Amendment law?

The 'Common Use Test,' established in cases like Heller and Bruen, states that firearms in common use for lawful purposes are protected by the Second Amendment and cannot be easily restricted by the government. The government must show a firearm is both 'dangerous and unusual' to restrict it.

How are courts attempting to change the 'Common Use Test'?

Recent court opinions are trying to narrow the 'Common Use Test' by shifting focus from 'common possession' to 'common use for self-defense.' This means arguing that a firearm is only protected if it's frequently fired in actual self-defense situations, not just commonly owned for potential defense.

What is the significance of AR-platform rifles in the 'Common Use Test' debate?

With 6 to 8 million AR-platform rifles in circulation and 99.999995% owned by law-abiding citizens, their widespread lawful possession makes them a key example in the 'Common Use Test' debate. Restricting them based on a narrow interpretation of 'use' is legally challenged.

What is the legal argument against the 'Common Use for Self-Defense' interpretation?

The argument is that the Second Amendment protects the right to 'keep' arms, meaning possession for potential lawful use, like self-defense, is protected. The frequency of actual discharge in a confrontation is not the legal standard; rather, the commonality of possession for lawful purposes is.

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