Will, I think you are misconstruing the test here. The first question under Bruen is whether the plain text is implicated. When "arms" are at issue, all bearable weapons qualify. The next question is whether the government nevertheless can regulate. Under Heller, only dangerous and unusual weapons can be banned; it follows that arms in common use cannot be banned. In other words, all bearable weapons are protected at the plain text step, and only dangerous and unusual weapons can be banned at the historical step. Notably, Justice Kavanaugh does not indicate there is some unanswered question after common use is determined. Rather, he says the following: "Because handguns are in common use by law-abiding citizens, the Court held that the District of Columbia's ban on handguns violated the Second Amendment."
Bruen confirms it. Conceptually, it fits perfectly - plain text (bearable weapons), historical tradition of regulation (dangerous and unusual weapons).
And Bruen confirms it specifically. With respect to plain text, at 28 Bruen quotes Heller for the proposition that "the Second Amendment extends prima facie, to all instruments that constitute bearable arms." Thus, the plain text covers all bearable arms.
And at 21, when discussing discerning limits on the plain text from historical tradition, Bruen, again quoting Heller, states that "we found it 'fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons' that the Second Amendment protects the possession and use of weapons that are 'in common use at the time.' " Further, at 32, Bruen states that the handguns at issue in the case are protected arms (not presumptively protected arms) because the parties agreed they are "weapons 'in common use' today for self-defense." (quoting Heller's discussion of historical limits on the right). And at 47, the Court distinguishes colonial statutes that arguably barred the carrying of handguns as dangerous and unusual weapons on the grounds that handguns are in common use today. And the discussion makes clear that it is "historical tradition" that is being assessed, not plain text. Thus, arms that are in common use cannot be banned, period, consistent with my assessment of Heller and Justice Kavanaugh's characterization of it.
And Rahimi is in accord, as Heller and Bruen establish that the relevant principle is that dangerous and unusual weapons can be regulated despite the fact that as a semantic matter they are "arms" covered by the plain text of the Second Amendment. Justice Kavanaugh's concurrence (at 735) supports this interpretation, as in his discussion of the "few categories of traditional exceptions to the right" recognized by Heller, he included that "the Second Amendment attaches only to weapons 'in common use' because 'that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.' "
The SCOTUS gun fetishists are fond of saying the 2nd Amendment is treated as “second class” and should be taken literally. I can’t think of another in the Bill of Rights that isn’t hedged with exceptions and conditions (except maybe the Third). So maybe a shred of sanity will prevail.
Will, I think you are misconstruing the test here. The first question under Bruen is whether the plain text is implicated. When "arms" are at issue, all bearable weapons qualify. The next question is whether the government nevertheless can regulate. Under Heller, only dangerous and unusual weapons can be banned; it follows that arms in common use cannot be banned. In other words, all bearable weapons are protected at the plain text step, and only dangerous and unusual weapons can be banned at the historical step. Notably, Justice Kavanaugh does not indicate there is some unanswered question after common use is determined. Rather, he says the following: "Because handguns are in common use by law-abiding citizens, the Court held that the District of Columbia's ban on handguns violated the Second Amendment."
How do Bruen and Rahimi fit into this account?
Bruen confirms it. Conceptually, it fits perfectly - plain text (bearable weapons), historical tradition of regulation (dangerous and unusual weapons).
And Bruen confirms it specifically. With respect to plain text, at 28 Bruen quotes Heller for the proposition that "the Second Amendment extends prima facie, to all instruments that constitute bearable arms." Thus, the plain text covers all bearable arms.
And at 21, when discussing discerning limits on the plain text from historical tradition, Bruen, again quoting Heller, states that "we found it 'fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons' that the Second Amendment protects the possession and use of weapons that are 'in common use at the time.' " Further, at 32, Bruen states that the handguns at issue in the case are protected arms (not presumptively protected arms) because the parties agreed they are "weapons 'in common use' today for self-defense." (quoting Heller's discussion of historical limits on the right). And at 47, the Court distinguishes colonial statutes that arguably barred the carrying of handguns as dangerous and unusual weapons on the grounds that handguns are in common use today. And the discussion makes clear that it is "historical tradition" that is being assessed, not plain text. Thus, arms that are in common use cannot be banned, period, consistent with my assessment of Heller and Justice Kavanaugh's characterization of it.
And Rahimi is in accord, as Heller and Bruen establish that the relevant principle is that dangerous and unusual weapons can be regulated despite the fact that as a semantic matter they are "arms" covered by the plain text of the Second Amendment. Justice Kavanaugh's concurrence (at 735) supports this interpretation, as in his discussion of the "few categories of traditional exceptions to the right" recognized by Heller, he included that "the Second Amendment attaches only to weapons 'in common use' because 'that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.' "
The SCOTUS gun fetishists are fond of saying the 2nd Amendment is treated as “second class” and should be taken literally. I can’t think of another in the Bill of Rights that isn’t hedged with exceptions and conditions (except maybe the Third). So maybe a shred of sanity will prevail.