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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