Thomas and Scalia write that the government is essentially powerless to prohibit or restrict weapons in “common use.” “The right to keep and bear arms,” they wrote, “is defined not by what the militia needs, but by what private citizens commonly possess.” This common-use formulation has no foundation in the text, structure, or history of the Second Amendment. In fact, this view gives gun makers—not legislatures, or even courts—the power to determine public policy on guns. Which is exactly why the Founders would have spurned it.
What’s more, Scalia and Thomas define “common use” so broadly as to be virtually meaningless. In the Friedman dissent, Scalia and Thomas argue that “[r]oughly five million Americans own AR-style semiautomatic rifles.” But the stock of weapons in United States likely exceeds 300 million—meaning that if a specific style of weapon constitutes less than 2 percent of the weapons in circulation, it is “common.”
The larger problem with a market-driven theory of gun policy is that it is the opposite of the Founders’ intent as well as the plain meaning of the text. The Second Amendment was not designed to hobble government regulation. At the time, men arrived for military service already armed with guns the government required them to purchase. Contrary to Thomas and Scalia, the law did not countenance Americans simply showing up with whatever weapons they owned—that is, what was in common use. Without specific regulations and instead following common use or preference, most Americans would likely have shown up for active duty with fowling pieces, which were more like shot guns than muskets, because these were better suited for putting food on the table. In other words, the Founders recognized that if left to the free market and people’s own preferences, America’s militias would be prepared to hunt turkeys, not fight a powerful European standing army. A reliance on the market could have cost America its freedom. The various militia regulations enacted by states in the colonial period and after the adoption of the Second Amendment specified what weapons were required to meet the legal obligation of citizens to serve in the militia. Failing to report to the militia properly armed with the right weapon could result in fines. If the Founders had understood the Second Amendment in the way Scalia and Thomas suggest, the United States would likely have lost the American Revolution.
What’s more, if the Founders had espoused a common-use theory of the Second Amendment, one would expect early American legislatures to have carved out some type of broad immunity protecting ordinary gun possession from the normal and robust regulatory authority of the state. In fact, the evidence shows that the opposite case was true. In nearly every state, legislatures carefully differentiated between militia weapons and personal arms. When early Americans defaulted on debt or fell behind on taxes, the law exempted militia weapons from seizure. Every other weapon—no matter how “common”—was subject to seizure or sold to satisfy private debts or to pay back taxes. There was never an unlimited right to own whatever guns a person desired.