The "in common use" standard is undoubtedly problematic. Is there any doubt that automatic weapons, SBRs, SBSs, etc. would be in common use if they weren't prohibited by state and federal laws? But they've been intensely regulated for 85 years, so of course, they are not "in common use" and to argue that they would be in common use were they not prohibited would be speculation (even if almost certainly correct speculation.)
Hopefully, this is refined out of existence, especially if Trump gets another appointment.
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In case it wasn't obvious, nothing I write here should be interpreted as legal advice.
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