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Next Generation Army Rifle Highlights Danger of ‘Common Use' Argument to Defend 2nd Amendment

Next Generation Army Rifle Highlights Danger of ‘Common Use' Argument to Defend 2nd Amendment

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“The Army has officially fielded its brand-new Next Generation Squad Weapon rifles to its first unit, bringing an end to the service's decades-long effort to replace its M4 and M16 family of military firearms,” Military.com reports. “Army Futures Command announced Thursday that soldiers from 1st Battalion, 506th Infantry Regiment, 101st Airborne Division, at Fort Campbell, Kentucky, accepted delivery of the XM7 Next Generation Rifle and XM250 Next Generation Automatic Rifle ahead of training in April.”

Factor in the automatic rifle’s standard 13-inch barrel and suppressor, and the XM7 represent the trifecta of what government has fabricated “legal” pretexts to ban from those paying for it all, “We the People.” 

“The National Firearms Act of 1934 (NFA) requires the registration, with the federal government, of fully-automatic firearms (termed ‘machineguns’ … rifles with a barrel under 16 inches … and firearm sound suppressors,” NRA-ILA summarizes. And “thanks” to the Hughes Amendment, added to the so-called Firearms Owners Protection Act, and “passed” by a subjective (and still hotly contested) voice vote instead of by a recorded vote, new machineguns that were not registered prior to May 19, 1986, have been banned from private ownership.

So much for “shall not be infringed.” So much for the Founder’s understanding of what “arms” were meant to be. So much for the right of the people to keep and bear them as a deterrent to tyranny. 

So much for one thing about armed citizens the government has the Constitutional authority to involve itself in, “organizing, arming, and disciplining, the Militia.”

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline,’” the Supreme Court noted in its 1939 U.S. v. Miller decision. “And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time,” 

If the Bruen standard, of text, history, and tradition is to guide the law, what was in common use at that time was equal or superior (like the more accurate and longer-ranged Pennsylvania/ Kentucky rifles) to the Crown’s standard-issue Brown Bess musket. Citizens mustered with the intent to match and to best a professional military threat. Arms “in common use at the time” by everyone meant arms in common use by infantries, who would otherwise prevail if not matched (and surpassed) in capability. 

Rather than deter tyranny, a dictated inferiority would invite it. To argue otherwise is to argue the Founders thought sending an outmatched yeomanry to their slaughter was “necessary to the security of a free State.” That’s insane.

And the prohibitionists are aided in citizen disarmament when “gun rights leaders” not only accept – but argue for an invented “in common use at the time” qualifier that limits permitted firearms to what is commercially popular, as opposed to what soldiers and police carry (with the latter somehow magically transmuting their “assault rifles” and “weapons of war” into the more benign “patrol rifles”).

Major gun groups, in both their writings and in their legal challenges, have been focusing almost exclusively on what is commercially popular. One example is a new report from the National Shooting Sports Foundation documenting “that detachable magazines with a capacity exceeding 10 rounds are the overwhelming standard for firearm owners in the United States. The report, which surveyed 30-plus years of detachable magazine production and distribution, demonstrated that of the conservatively estimated 963,772,000 detachable magazines supplied from a firearm manufacturer and in the aftermarket, at least 717,900,000 have a capacity exceeding 10 rounds, the limit some states place for lawful magazine possession.”

Those are impressive numbers, prompting no shortage of self-styled “gunfluencers” to breathlessly gush about how that irrefutably establishes “common use,” and thus “destroys” legal arguments for magazine bans (not that it will stop states and inferior courts from continually defying the Bruen standard anyway). The point they’re missing is the numbers game works both ways. Returning to the FOPA Hughes Amendment referenced above, how many post-May 1986 M16s are in private hands and thus “in common use”? 

One notable exception meriting Supreme Court attention is Gun Owners of America’s petition for certiorari with the Supreme Court in their challenge to the Protect Illinois Communities Act (PICA), an in-your-face infringement upheld by the anti-gun Seventh Circuit.

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“Unsurprisingly, the majority did not explain how the Founders’ permeating fear of standing armies – like the one they had just defeated – is compatible with the notion that they would voluntarily and intentionally subjugate themselves to possession of only second-class ‘civilian weaponry’ that would make their future ability to ‘resist tyranny’ (Heller at 598) impracticable, if not impossible,” the petition points out.

“From start to finish, the panel majority based its Second Amendment analysis on the theory that, when the Heller Court ‘concluded that the Amendment recognized an individual right to keep and bear arms,’ it ‘severed’ the connection ‘between the prefatory clause which refers to the Militia and the operative clause, which refers to the right to keep and bear Arms,’” the petition elaborates. “Drawing from Heller’s statement that the meaning of operative clause is ‘not limited to’ the prefatory militia clause), the majority concluded that the two clauses have no relation to one other – actually, an inverse relationship – creating a novel civilian versus military arms dichotomy.”

The understanding at the time of the Founding era did not limit possession of some arms to Militia purposes. That’s perhaps best illustrated by the Pennsylvania Constitution’s declaration that “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” [Emphasis added.] Just as there’s no way to predict all the scenarios in which self-defense with a firearm is legally and morally justifiable, there can be no “one size fits all” solution defining the “right” tool for the job.

The other thing the Founders fully understood was that firearms technology was evolving. From long before their time, there were Fourteenth Century multiple-barreled volley guns and a design by Leonardo DaVinci for a rotating triple-barrel breech-loading cannon. The Founding Era had already seen pepperbox revolvers, Kentucky/Pennsylvania rifles, cartridges to combine shot and powder, the British breech-loading Ferguson rifle, the 11-cylinder crank-operated Puckle gun, and the Girandoni air rifle, capable of firing 22 .46 caliber balls and that had actually been used by the Austrian army 11 years before the Bill of Rights was ratified. And the above is by no means an exhaustive list.

The Founders were enlightened men, schooled in classical, political, and legal history, aware of current developments (and in cases like Thomas Jefferson and Benjamin Franklin, innovators and inventors themselves), and visionaries with eyes toward the future, and to “secur[ing] the Blessings of Liberty to … Posterity.”

If “the people” of the Second Amendment can be denied arms based on them not being “in common use” for sport and for limited “self-defense” situations, what chance would they have resisting tyranny equipped with future weaponry that today would be considered the stuff of science fiction? Who knows what those imposing their demands will have at their disposal, along with the power to withhold from citizens 50 years from now, or 100, or beyond?

Since no innovation ever begins “in common use,” a government with the power to do so can ban all new weapon developments from those they would rule, retaining them exclusively for itself. It’s what I warned about when I wrote “Things to Come” back in 2002 for Guns and Ammo:

“It’s been said that a battle isn’t won until a man with a rifle occupies the ground. We must keep in mind that someone probably once said the same thing about spears.”

The Second Amendment does not say “the right of the people to keep and bear arms in common use at the time shall not be infringed.” If it had, the Anti-Federalists would have told the Framers to go to hell.


[EDITOR’S NOTE: As David Codrea explained, the Founder’s intended that the citizenry have the right to defend their liberty and lives against tyranny and genocide perpetrated by their own government. It is nonsensical for anyone to state: “The Second Amendment was written to prevent tyranny, but it doesn’t mean we can own machine guns and grenade launchers.” as how would one defend themselves at such a disadvantage?  Had the Founders wanted the government to have an advantage in weapons over the citizenry, they would have stipulated that the citizenry could own crossbows and catapults but not muskets and cannons – they did not state any such thing in any of their writings. Something to think about when your favorite “pro-gun” politician or talking head states than machine guns should be banned.]


About the Author

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.


If you have any thoughts or comments on this article, we’d love to hear them. Email us at FirearmsNews@Outdoorsg.com.




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