Since we all know the vaunted black rifle is nothing more than a common .22 caliber centerfire semo-automatic rifle.
Even if enacted, [Senator Dianne] Feinstein’s ["assault weapons" ban] proposal would be the most likely of all the major gun reforms being considered in Washington today to be overturned on Second Amendment grounds.
The Supreme Court has held that :
the Second Amendment protects arms that are “in common use” for lawful purposes, like self-defense.
There seems little doubt that assault weapons are in common use, given the millions of them in circulation. With so called “assault weapons,” (like the AR-15) being overwhelmingly the most popular centerfire rifles in the country, for several years running, and with millions of them in private hands (a number that grows by the minute, as demand continues to outstrip manufacturers’ ability to produce them), “regime change rifles” are most definitely “in common use.”
The “common use” factor is important because in writing the majority opinion for the District of Columbia v. Heller decision, Justice Antonin Scalia listed several “presumptively lawful” infringements on that which shall not be infringed (and no–he didn’t explain how that works). Those included bans of arms not “in common use at the time” (and sorry, Obama regime ex-”regulatory czar” Cass Sunstein–”at the time” does not mean “at the time the Second Amendment was drafted”).
In an interview with Kwame Holman on the PBS Newshour, Second Amendment scholar and George Mason University School of Law Professor Joyce Lee Malcolm made not only that point, but expanded on it to include so-called “high capacity” magazines, which number in thescores of millions in private hands–if not hundreds of millions (see sidebar video):
“I don’t really think the idea that you can ban them or reduce the magazine will really pass constitutional muster,” Malcolm said. “If your standard is common use, these are all in common use for lawful purposes.”
And so there you have it.