Is the Supreme Court’s ‘Common Use’ 2nd Amendment Test Really Originalist?

The Supreme Court’s “common use” test has become one of the strongest weapons available to Americans challenging bans on AR-15s, standard-capacity magazines, and other widely owned firearms. It may also rest on a surprisingly weak originalist foundation.

That is the theory recently advanced by Second Amendment plaintiff Charles Nichols, who argues that the Constitution does not protect an arm because enough Americans already own it. The Second Amendment protects arms because the text says the people’s right to keep and bear them “shall not be infringed.”

Nichols’ criticism deserves serious consideration as the Supreme Court prepares to decideViramontes v. Cook County and Grant v. Higgins, the consolidated cases asking whether the Second and Fourteenth Amendments protect the right to possess AR-15-style and similar semiautomatic rifles. The Court granted review on June 30, 2026.

The challengers have an overwhelming argument under existing precedent: AR-15s are bearable arms, are commonly possessed for lawful purposes, and cannot plausibly be classified as both “dangerous and unusual.” Nichols, however, is asking a more fundamental question. [MORE]