End the Popularity Contest: A Proposal for Second Amendment 'Type of Weapon' Analysis

The Supreme Court’s recognition of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope and content of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. The Supreme Court’s decision in District of Columbia v. Heller purports to lay out a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This article critiques that test, arguing that it creates poor incentives, is very difficult to apply, and, most importantly, is disconnected from the central component of the Second Amendment right — self-defense. The article proposes an alternative test that asks whether the weapon at issue is a reasonable choice for armed self-defense.