A SCOTUSblog column argues that the Supreme Court has never actually examined the Second Amendment limitation Justice Scalia wrote in District of Columbia v. Heller: that protected weapons are those “in common use at the time.” The author contends that lower courts have silently replaced that founding-era test with a contemporary one, asking whether a weapon is “in common use today.” That shift matters in Viramontes v. Cook County, the pending challenge to an AR-15 ban, because AR-15s are a 20th-century invention that would likely fail an originalist test but may pass a modern one.
The author rejects professor Jonathan Turley’s characterization of Scalia’s limitation as an “errant qualifier,” pointing out that Scalia repeated the phrase and supported it with historical citations. The column also notes that United States v. Miller used the same “in common use at the time” standard nearly 90 years ago to uphold bans on sawed-off shotguns and machine guns. If Scalia’s words mean what they say, the author concludes, local governments may have authority to ban modern weapons like AR-15s—unless courts offer a principled reason for abandoning the originalist limitation.