Pete Patterson

Our brief opens with the story of Charles Foehner, who is now spending four years in prison after defending himself against a lunatic who had at least 15 prior arrests dating back to 2004. Mr. Foehner is not in prison for the self-defense; he was not charged for that. Rather, he is in prison because he only registered *some* of his firearms, but not others, and New York City requires each individual gun you own to be registered to you. This may seem an odd opening in a case concerning suppressors. But it isn't, the exact same constitutional violation that has harmed Mr. Foehner also infects the NFA. Requiring the registration of each individual arm is unconstitutional.

Trump v. Barbara: Birthright Citizenship argument. Listening, what stood out to me, was the ACLU Attorney's argument tension. She argued (1) the three exceptions (diplomats, invaders, Indians) are a closed, unchangeable set but also (2) could not answer where those came from

The way we have been arguing this is that what the government needs to show is that something is not a common arm; i.e., the American people have decided that it is a dangerous and unusual arm that can be reserved for special and not common use. Although not 2A cases, Staples and Smith & Wesson are helpful in that they both were attempting to draw a line between common and unusual arms. Staples used terms like "commonplace," "generally available," and "traditionally lawful" to describe common arms. And Smith & Wesson used terms like "widely legal" and "bought by many ordinary customers." This also tracks with Alito's concurrence in Caetano and Kavanaugh's statement respecting denial in Snope, which both looked at common ownership and general legality. Under this approach, above a certain number (say, in the millions), it becomes impossible to say that something is dangerous and unusual. But even at lower numbers, it is simply impossible to say that the American people consider something dangerous and unusual if as a general matter they sit idly by while the items remain freely available on the market.

Has anyone on our side actually proposed a definition of "commonly used?" I don't remember seeing one. We've said ARs are common, but not specifically what our definition of that word is, beyond "more sales than the Ford F-150." I've also never seen an argument made that ARs are commonly used for competition, but that's true. We've asked what "use" means, and we've asked what "common" means in terms of sheer numbers, but I wonder what the right denominator is for "common." Is it common among gun owners? Common among the general populace? Because few gun owners compete, as a percentage. But for those that do, a bunch use ARs. And that's a lawful purpose. And as I've asked before, a different issue with "common" is how specific we get. If you go really general, rifles are common. Since the AR is a rifle, is that good enough? But we look at ARs differently from lever-action or bolt action, right? So the category is "semi-auto rifles." But that puts "semi-auto pistols" into a different category too, right? But we'd say that a semi-auto pistol has the same protections as a revolver, yes? And don't get me started on "use." Which to the anti-gunners means "firing," even though that's completely wrong. Sticking with "common." I think the answer is based on sales. 1. Something can be common because it's obvious that the People have chosen it, proven by the sheer numbers of sales. The AR is the paradigmatic example. 2. Something can be common because of the speed of adoption. Not necessarily how many, but how many as a function of how fast. The numerator can be lower, if the time factor is shorter. What's important to remember is that common use for lawful purposes is a STEP 2 requirement. Too many courts have mistakenly said only commonly used weapons are even under the 2A. That's plain error. Uncommon weapons that aren't unusually dangerous can still be protected if there's no historical basis for regulation. .22 single-shots are uncommon. Muskets are uncommon today. But obviously protected.