I heard someone say the "common use" test still applies.
Yeah. The "common use" test is utter bullcrap.
1) It is not in the amendment. It is an invention to justify banning MGs.
2) All case law and all commentary on what weapons we have a right to own, from early America, up through Miller, specifically say we have a right to own military weapons. Many cases and commentators said there was no right own civilian weapons (mainly Bowie knives)…
everybody said military weapons were protected, even cannons.
3) It is a circular argument. Machine guns are not in common use because they are banned. It is okay to ban them because they are not in common use.
4) Machine guns are in "common use" with militaries and official militias around the world anyway. Therefore we have a right to own them.
5) The Second Amendment was meant to be a counterweight to abuse of the people by the the standing army, and "select militias" (ie, the National Guard). Early commentary said Americans have a right own military weapons to prevent abuses by the standing armies.
6) The "common use" test allows the government to ban any new type of gun. The federal government could have banned metallic cartridges when they were first invented, and we be stuck right now with only muzzleloaders. That would pass the "common use" test.
"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." (Tench Coxe in ‘Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym ‘A Pennsylvanian' in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)
"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.)
If you could go back in time, and tell James Madison and the rest that the Federal government in 2022 would throw a citizen in prison for owning a military rifle they would be horrified.
I'm just venting here. I know it is pointless.