Published July 28, 2026 at 4:35 AM ET · Updated July 28, 2026 at 8:24 AM ET
Second Amendment advocates challenge the in-common-use standard
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Second Amendment advocates are challenging the legal standard known as in common use. The challenge relates to how courts evaluate which firearms are protected under the Second Amendment.
Patriot Watch first flagged this story 5 hr ago, when Instapundit reported it. So far this remains a single-source report. The most recent report came 5 hr ago from Instapundit. Verification tier: Watching — single-source — not yet independently corroborated.
⚖ The Constitutional Angle
In Jaime Caetano v. Massachusetts the Court held the Second Amendment covers all bearable arms regardless of when invented, and that unusual cannot mean not in common use in 1789. District of Columbia v. Heller grounded an individual right to possess firearms for self-defense but noted the right is not unlimited. Any challenge to the in-common-use standard confronts a test Caetano already broadened.
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.
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.
Precedent facts from the PW Law Library — primary-source verified & independently audited
