Court doctrine isn’t usually what I write about between gunsmithing jobs, but this one’s worth your attention. I’m Lance Rankin, a Texas FFL, and the video above breaks down how some judges are rewriting the common use test, a legal maneuver that could let them ban the most common rifles in America from the bench. This is commentary on litigation that was live as of this writing, so check where these cases stand now before quoting me at a dinner party.
The real common use test
Start with the original. In District of Columbia v. Heller, the Supreme Court said the government can restrict arms that are “dangerous and unusual,” but arms in common use by law-abiding citizens for lawful purposes can’t be banned outright. Simple test, and it turns on possession. Are millions of ordinary people keeping this kind of firearm for legal reasons? Then it’s protected. That’s why handguns are protected even though criminals also use handguns.
The workaround
After Bruen raised the bar for defending gun laws, several states passed sweeping restrictions anyway, and the challenges to those laws should win under a straight application of common use. AR-style rifles are owned by the millions. So some courts have started quietly rewriting the common use test.
It started in Washington state, where Judge Robert J. Bryan remarked in a ruling that so-called assault weapons are “rarely used for self-defense.” That stray comment, pure dicta, migrated to Oregon, where a federal judge in the Ballot Measure 114 litigation faulted plaintiffs for failing to show the banned firearms are “in common use for self-defense.”
Read that carefully. The test just moved from what citizens possess to how often a gun actually gets fired at an attacker. That’s a massive shift dressed up as a small one. Almost no firearm of any type is frequently fired in self-defense, thank God. Under that logic, nearly everything could be banned, including the handguns Heller explicitly protected.
Why the new common use test is dishonest
The Second Amendment protects the right to keep and bear arms. Keeping is the point. The defensive value of the shotgun behind my bedroom door doesn’t depend on it ever firing a round at a person; it deters, it reassures, and it stands ready. Judging protection by fired-in-anger frequency is like judging fire extinguishers by how many fires they’ve been sprayed at.
The plaintiffs in Banta v. Ferguson in Washington are attacking this head-on, and their playbook is worth knowing:
- The test is possession for lawful purposes, not usage statistics. Heller and Bruen both say so.
- The burden belongs on the state to show a firearm is not in common lawful use, not on citizens to prove it is.
- Millions of law-abiding Americans own AR-style rifles, and the state can’t show the typical owner keeps one for anything but lawful purposes. Criminal misuse by a few doesn’t strip protection, or handguns would’ve lost it decades ago.
Why a Texas dealer is watching
I sell the rifles these cases are about, every week, to nurses and ranchers and retired cops. “Common use” isn’t an abstraction from where I stand; it’s my customer base. This same fight is running in multiple states, including the Massachusetts challenge I covered in my post on the post-Bruen challenge to the Massachusetts assault weapon ban, and the courts will eventually have to pick a version of the test. Which version wins decides whether Heller means what it says.
What you can do is unglamorous but real: know the difference between the two versions of the common use test so you can spot the switch when you see it reported, support the organizations funding these cases, and follow the appeals. Bad dicta travels fast, as this story shows. Good arguments have to travel faster.
Lance Rankin is the owner and Chief Gunsmith of Western Sport, a family-run Type 07 FFL and Class 3/SOT dealer in Roanoke, Texas, serving shooters since 2007. Born and raised in Texas with over 50 years of experience handling firearms, Lance purchased Western Sport in 2017 and turned his lifelong passion into his profession. He specializes in AR-15 and AR-10 platform rifles, manufactures Western Sport’s own AR-15 line under the Rankin Industries brand, and runs the shop’s in-house Cerakote coating operation. When he’s not behind the counter or the workbench, you’ll find him on his ranch deep into the night, hunting coyotes with an AR-15 and thermal optics. Lance holds an MBA and personally shoots and tests the products Western Sport sells.
