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83 Tenn. L. Rev. 231 (2015-2016)
End the Popularity Contest: A Proposal for Second Amendment Type of Weapon Analysis

handle is hein.journals/tenn83 and id is 237 raw text is: END THE POPULARITY CONTEST: A PROPOSAL FOR SECOND AMENDMENT TYPE OF WEAPON ANALYSIS CODY J. JACOBS* The Supreme Court's recognition in District of Columbia v. Heller of an individual Second Amendment right to bear arms for self- defense raised many questions about the scope of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which arms are protected by that right. Heller purports to establish a test that asks whether the weapon at issue is in common use at the time the case is decided. This Article critiques that test, arguing that it creates poor incentives, is difficult to apply, and, most importantly, is disconnected from the central component of the Second Amendment right-self-defense. This Article proposes an alternative test that asks whether the weapon at issue is a reasonable choice for armed self-defense. INTRODUCTION................................................ 232 I. TYPES OF WEAPONS - A BREWING CONTROVERSY...................235 A. The Proliferation of Assault Weapons ....... ........ 236 B. The Renewed Popularity Of Assault Weapon Bans......... 238 II. POST-HELLER SECOND AMENDMENT DOCTRINE-HELLER, THE COMMON USE TEST, AND THE TWO-STEP TEST......... .....241 A. District of Columbia v. Heller.......................... 242 1. Embracing an Individual Right ..... ................ 242 2. The Common Use Test.............................243 B. The Two-Step Test ...................... .......... 248 IV. THE COMMON USE TEST APPLIED IN THE COURTS .................. 251 A. Heller II & NYSRPA-Using the Second Step to Fix the First Step ....................................... 252 * Abraham L. Freedman Fellow, Temple Beasley School of Law. Thanks to Michael Seidman, Jonathan Wolfson, Tim Lytton, Kim Connolly, Danielle Pelfrey Duryea, Chris Moellering, Lisa Bauer, and the members of the SUNY Buffalo Law Junior Faculty Forum for their helpful comments and suggestions. I would also like to thank the staff at the Law Center to Prevent Gun Violence for everything they taught me about firearms policy (though the views in this Article do not necessarily reflect the views of the Law Center). I also appreciate the research assistance of Brian Sarama.

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