Michael L. Smith (University of Oklahoma College of Law) has posted Common Sense and Candor in Rahimi and Beyond (48 Cardozo Law Review, forthcoming 2027) on SSRN. Here is the abstract:
In United States v. Rahimi, the Court purported to interpret and apply the Second Amendment through a focus on historical tradition. Yet, at the crux of its analysis, the Court appeared to acknowledge that common sense played a role alongside digging through dusty old gun laws and determining whether they resemble modern restrictions. I dig into what this reference to common sense might mean. I suggest that the Court’s reference to common sense acknowledges that there is still a place for consideration of consequences and practicality in constitutional interpretation, even in those corners of doctrine that purport to respect text, history, and tradition above all else. References like this may serve as rare moments of candor and acknowledgments of the role judgment plays in interpretation. While the Court shouldn’t shy away from such honesty, the prospect of frequent, explicit references to common sense remains unlikely.
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