Opinion
The Supreme Court has held that the Second Amendment protects arms in common use for lawful purposes. But what does the phrase “in common use for lawful purposes” actually mean?
The anti-gunners want to define “in common use” very narrowly to mean only the actual firing of a gun in self-defense. They argue that because firearms are rarely fired in self-defense, they aren’t “in common use” and, thus, can be banned. That’s a trap and one we must work hard to avoid falling into. Firearms are prolific in America and are commonly used every day for countless lawful purposes beyond the actual firing of a gun in self-defense.
Firearms Are “Used” To Deter Bad People From Doing Bad Things
Let’s begin with a very basic principle: the “use” of a firearm extends beyond firing a gun in self-defense. In District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects “arms ‘in common use at the time’ for lawful purposes like self-defense.” Self-defense is simply an illustration of a type of “lawful purpose”; it is not the only lawful purpose of a firearm as the anti-gunners would like the lower courts to find.
But even in the self-defense arena, firearms are commonly used as a deterrent (i.e., brandishing) without being fired. In the 2021 National Firearms Survey, Professor William English of Georgetown University found that in 81.9% of defensive gun uses, the gun is not fired.
A police officer patrolling Times Square may never fire his handgun at a perpetrator, but its mere presence helps ward off potential criminal activity. The same can be said for the firearm that rests on your nightstand, which acts to deter a criminal from attempting to burglarize your home.
Think of a firearm like a fire extinguisher. A fire extinguisher is in “use” merely by being present in the home. A homeowner does not need to depress the handle of a fire extinguisher to put out a grease fire to “use” a fire extinguisher. Similarly, you would never argue that a life insurance policy isn’t in “use” because the insured is still living. Or that a homeowner insurance policy was not being used because no claim for a loss had yet been submitted. Americans purchase firearms, fire extinguishers, and insurance policies for the same reason – as a means of protection just in case. Contrary to the arguments advanced by the anti-gunners, a firearm is being “used” for self-defense even when it has never been fired.
Thus, the first item we can add to the list of lawful purposes for which Americans use their guns is the two-sided coin of self-defense: either firing in self-defense or merely keeping (or brandishing if needed) a gun as a deterrent to prevent against future harm.
Firearms Are “Used” For Hunting, To Prevent Animal Attacks, And for Pest Control
The “use” of firearms is not restricted to self-defense against violent criminals intending to do us harm. Firearms are also used for hunting, for example. Whether it’s big game, small game, varmints, birds, trophies, or simply sustenance, hunting is both a sport and a valuable means of obtaining sustenance engaged in by millions of Americans across the country. And hunters use a wide variety of firearms. Whether it’s a modern firearm such as an AR-15, a 30-06 Springfield, or an older firearm such as a black powder musket, hunters employ many different types of guns.
Another important lawful use of firearms concerning hunting is the prevention of animal attacks. I have written more comprehensively about this elsewhere, but the danger of animal attacks was top of mind for our Founding Fathers who drafted the Second Amendment. This is especially important for people who live in remote places in the American West where wild, dangerous animals roam free.
Relatedly, many American gun owners today use their firearms for pest control: pest control not only preserves one’s land and livestock, but it may also become necessary to prevent a violent attack. Whether it’s coyotes, feral hogs, prairie dogs, rats, groundhogs, or crows, pest control can come in many forms. Packs of feral hogs demonstrate not just the necessity of semiautomatic weapons but large capacity magazines as well: feral hogs are extremely fast and can be overwhelming, and as a result, modern firearms and capacities are necessary to keep them under control.
Firearms Are “Used” For Sport In Competitions, To Train, And By Civilian Law Enforcement
Shooting competitions have a long and storied history in American culture, and they are yet another way Americans lawfully use their firearms. Examples abound: the International Practical Shooting Confederation (IPSC); the United States Practical Shooting Association (USPSA), fast draw competitions, the Camp Perry National Matches, the Police Pistol Combat competitions, and the Civilian Marksmanship Program, to name a few. There are also competitions across the country for minors to acquaint them with firearms and their proper usage.
Another use of firearms is firearm training. The Seventh Circuit Court of Appeals has specifically said in Ezell v. City of Chicago (2017) that the Second Amendment protects a right to train with firearms. Firearms training is another lawful use of firearms in the United States.
Relatedly, firearms are “used” by civilian law enforcement, which includes civilians who might be deputized into service for a variety of reasons. It’s not unusual for citizens to sometimes be deputized as a reservists to help protect their town—such deputization is necessary in wide-ranging areas with little police presence.
History and Craftsmanship
Historical shooting activities are another use of firearms in the United States. There are many groups that engage in Revolutionary War and Civil War reenactments that use many types of historical firearms and replicas. We see an example of this every Sunday during the NFL season when the New England Patriots score a touchdown; the Patriots Militia fire their muskets at Gillette Stadium in their Revolutionary War garb.
While some people are interested in history, others enjoy gunsmithing and craftsmanship. Americans engage in gunsmithing as a hobby or even professionally, and many others also like to make their own firearms, whether modern or historical. Sometimes, you can use weapon parts kits or even 3-D printing to accomplish those goals. There are also all sorts of experimentation and improvement that go on with firearms, such as designing new cartridges, chambers, or other things. People also customize their firearms and even use them as home décor above the mantle and throughout their homes.
When it comes to Second Amendment analysis, we must remember that firearms are commonly used by Americans for lawful purposes far beyond the rare occasion when someone fires a gun in self-defense. The anti-gunners are working hard to define “in common use” narrowly to further restrict our rights to keep and bear arms. So, next time you hear the phrase “in common use,” make sure to remember the myriad ways Americans use their firearms in the modern age.
Watch Related: ANIMAL ATTACKS: How the Second Amendment Protects Americans from Animal Attacks
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.
His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.
