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Hastings Constitutional Law Quarterly

Abstract

District of Columbia v. Heller hinged on the Second Amendment, defining for the first time an individual’s right to own a firearm unconnected with militia use, so long as the firearm is in “common use.” This essay argues that because the government determined which firearms were in “common use” throughout the nation’s early history, the Second Amendment allows regulating the types of weapons available to civilians, and their usage. It uses evidence from Congress, the War Department, and private arms manufacturers to examine the role of the federal government in developing and shaping the firearms industry from the nation’s founding throughout the first half of the nineteenth century. This evidence reveals historical precedent for government regulations of “common use” that could help guide legislators who wish to enact gun violence prevention measures that are consistent with the Second Amendment.

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