The Common Use Clause of the National Firearms Act

In 1939 there was a Supreme Court Case called United States v. Miller. In this case regarding the National Firearms Act of 1934, the Supreme Court created what has been called the, “Common Use Clause”. The Common Use Clause is exactly what you would expect it to be; firearms not in common use by the military are not protected by the 2nd Amendment and are subject to regulation. In 1939 machine guns weren’t considered to be in “common use”, the primary service rifle, the M1 Garand, had a barrel length of 24 inches, and the main issued shotgun, the M1897 (to my knowledge), had a barrel length of 20 inches.

Oddly enough, these measurements paired with the new “Common Use Clause” didn’t lead to a modification of the National Firearms Act. A short barreled rifle was still considered a rifle with a barrel under 16 inches in length and/or 26 inches in overall length. A short barreled shotgun was considered a shotgun with a barrel length under 18 inches and/or 26 inches in overall length. At this point in time a rifle not regulated by the National Firearms Act could have a barrel that was only 66% of the length of the standard service rifle. A shotgun not regulated by the National Firearms Act could have a barrel that was only 90% the length of the commonly issued M1897.
Ignoring the fact that silencers were added to the NFA to prevent people from poaching animals to feed their starving families, it was not in common use by the military and wouldn’t be for quite some time.

Now In Common Use

Fast forward to 2021 and the military has changed a lot, and that might be an understatement. Today, in common use, we see a lot of things being used that we didn’t see being used in 1939. Submachine guns are regularly being issued to security forces, fully automatic rifles (that aren’t crew served) are being issued to every solider, short barreled rifles are in common use, silencers are in common use, and short barreled shotguns are being issued regularly (relative to the amount of shotguns being used).

For the purposes of this post and the purposes of actually winning something, we won’t talk about fully automatic firearms since it’s still a touchy subject for the majority of people. Let’s just briefly go over some of the firearms that are being used, regularly, by the United States military.

1. Shotgun- 590A1, Barrel=14″
2. Shotgun- M500, Barrel=18″
3. Rifle- M4, Barrel=10.3″-14.5″
4. Rifle- SCAR L, Barrel=6.75″-20″

These are just some of the rifles and shotguns that are being used by the military. This list doesn’t include any of the various submachine guns (Pistol Caliber Carbines for the civilian market) being used; most of which have single digit barrel lengths. Applying the same logic from the 1939 ruling in United States v Miller lets produce the modifications that would need to be made in order to put the National Firearms Act in accordance with the “Common Use Clause” that SCOTUS made.

For short barreled rifles we can feasibly say that the entire category needs to be gotten rid of going off of the shortest SCAR L configuration of 6.75″. Using the aforementioned 66% that would make the new definition of a short barreled rifle as a rifle with a barrel below 4.45″ with an undetermined overall length. Let’s be as reasonable to this ruling though as possible for the greatest chance of success. The M4 is the most commonly issued rifle in the United States military and it has a barrel length of 14.5″. Again, using the 66% of that barrel length measurement, we’re now down to 9.57″, meaning the new definition of a short barreled rifle would be a rifle with a barrel under 9.57″ with an undetermined overall length.

From mixed responses for shotguns, it seems like both the 590A1 and M500 are being used about equally so here it’s reasonable to use the shorter of the two, the 590A1, as the basis for the new guidelines.  90% of 14″ is 12.6″, meaning the new definition of a short barreled shotgun would be a shotgun with a barrel length under 12.6″ and an undetermined overall length.

The Case for Silencers

Around the world every country that allows firearm ownership allows silencers to be sold as accessories and they aren’t subjected to the same amount of regulation we see in the United States, in fact, in some of these countries it actually illegal to hunt without a silencer as gunshots are seen as a nuisance. I digress, the United States shouldn’t be framing it’s gun laws around other countries, but it does say something that they aren’t really regulated abroad…

Anyway, silencers are regularly issued in the military for the sake of preserving hearing as much as possible; especially to units that are going to be clearing buildings. They reduce the concussion from the firearms and reduce the noise that they produce. While the noise reduction doesn’t make them hearing safe, it makes shooting indoors considerably safer. Considering Americans have a right to home defense, it’s only reasonable that they are allowed to use silencers for the same reasoning; to protect their ears during a home invasion as much as possible. Further, silencers are not firearms in and of themselves… they’re metal tubes incapable of firing projectiles on their own.

P.S. Silencer is the legal terminology as well as the terminology on the patent.

Conclusion

The fastest way right now to get rid of firearm regulations that we don’t like isn’t through brute force. It’s through chipping away at them slowly, just like the anti-gun establishment has been doing for decades to dissolve our Second Amendment rights. Yes, it would be fantastic to see the National Firearms Act of 1934 fully repealed, as well as less wiggle room for the BATFE to function. It pains me to say that we would undoubtedly have a higher chance at modifying the existing legislation if the community could get behind it in one solidifying voice.