Published July 27, 2026 at 6:29 PM ET · Updated July 28, 2026 at 6:07 AM ET
Second Amendment advocates challenge the in-common-use standard
2 independent outlets are covering this story. Verification: Corroborated — reported by at least two independent outlets. Patriot Watch links to original reporting; we don't republish it.
Second Amendment advocates are challenging the legal standard of what firearms are considered 'in common use.' Multiple outlets describe the standard as a perennial problem in Second Amendment jurisprudence.
Patriot Watch first flagged this story 13 hr ago, when Bearing Arms reported it. Coverage has since grown to 2 independent outlets. The most recent report came 3 hr ago from Instapundit. Verification tier: Corroborated — reported by at least two independent outlets.
⚖ The Constitutional Angle
In Heller the Court recognized an individual right to possess firearms for traditionally lawful self-defense, while noting the right is not unlimited and longstanding prohibitions stay lawful. Caetano then held that unusual cannot mean not in common use in 1789 and that the Amendment covers all bearable arms even later inventions. The standard's outer edges remain unsettled and litigated.
District of Columbia v. Heller 554 U.S. 570 (2008)
Vote: 5-4 · Opinion: Scalia
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use it for traditionally lawful purposes such as self-defense within the home. The right is not unlimited: the Court noted that longstanding prohibitions (e.g., possession by felons and the mentally ill, carrying in sensitive places, conditions on commercial sale) remain presumptively lawful. D.C.'s ban on handgun possession in the home and its requirement that lawful firearms in the home be kept nonfunctional violate the Second Amendment.
Jaime Caetano v. Massachusetts 577 U.S. 411 (2016)
Vote: Unanimous per curiam (8-member Court, post-Scalia); no recorded vote split · Opinion: Per curiam (unsigned)
Summarily vacating the SJC's judgment without briefing on the merits or oral argument, the Court held that each of the SJC's three rationales contradicted Heller: the Second Amendment extends prima facie to all bearable arms, including those not in existence at the founding; 'unusual' cannot be equated with 'not in common use in 1789'; and protection is not limited to weapons useful in warfare. The case was remanded for further proceedings; the Court did not itself hold the Massachusetts ban unconstitutional.
Precedent facts from the PW Law Library — primary-source verified & independently audited
