End The Popularity Contest: A Proposal For Second Amendment “Type Of Weapon” Analysis

by Cody J. Jacobs

The Supreme Court’s recognition in District of Columbia v. Heller of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. Heller purports to establish a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This Article critiques that test, arguing that it creates poor incentives, is difficult to apply, and, most importantly, is disconnected from the central component of the Second Amendment right—self-defense. This Article proposes an alternative test that asks whether the weapon at issue is a reasonable choice for armed self-defense.

 

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