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What is Unusual?

Uncle asks, since Heller mentions “dangerous and unusual” weapons. I like to go back to Dave Hardy’s example from his lecture on the subject at the 2010 NRA legal seminar. I tend to think when it comes to this topic, that classes of arms should be interpreted rather broadly, and one also has to look to police use.

If you narrow a category enough, anything is unusual, and all guns are dangerous. The courts ought to look at prohibitions on subsets of weapon classes with skepticism. For instance, if a state decided to ban all derringers made by Bond Arms, one could argue such a small subset is unusual and not in common use. But the superset of handguns are. What about the Undetectable Firearms Act that was a result of a public scare ginned up by the anti-gunners? That is also a subset of protected arms. There might be instances where banning a subset of a larger protected class may be upheld, but I would generally believe strict scrutiny should be applied. If we reject that preventing criminal misuse is not a reason to ban handguns, how can it be a reason to ban a subset of handguns?

I’ve also advocated that the courts should consider police use when making a determination about “common use.” If a type of weapon is part of ordinary police equipment, it can’t be dangerous and unusual, and ought to be defined as in common use, even if it’s only in common police use. That would get us protections for things like body armor and “patrol rifles.” It may also get us machine guns, since machine guns are increasingly becoming more common in police armories.

But this is just thinking out loud. It’s a far cry from the courts ever adopting such a standard. As it is, I’d be nervous going to court with even New York’s draconian gun and magazine ban.

6 Responses to “What is Unusual?”

  1. Rob F says:

    Heller does not use the term “dangerous and unusual” to define a category of weapons that are beyond the scope of Second Amendment protection. Instead, the Court held that an “important limitation on the right to keep and carry arms” is that “the sorts of weapons protected were those ‘in common use at the time.'” The Court then said that this “limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,'” citing Blackstone (1769) and other early authorities. So the operative test for modern Second Amendment review is certainly whether the arms at issue are “in common use” now. It is not clear that “dangerous and unusual” is a relevant inquiry, since that was really just historical context for the court’s holding, and thus, dictum.

    Even if “dangerous and unusual” were a relevant standard, it probably would not change the inquiry. First, since the terms are used in the conjunctive, a weapon would need to be both dangerous and unusual to not be protected. Since a weapon in common use cannot be unusual, a weapon in common use will be protected regardless of whether it is also dangerous.

    It is entirely unclear to what “dangerous” could even mean in this context. It cannot be afforded its modern, plain meaning of “able to cause harm or injury,” because then the Heller court would not have found handguns protected. Perhaps in context it meant “unusually dangerous,” in which case the common use question will answer the dangerous inquiry, as it does with the unusual inquiry.

    Perhaps it meant dangerous to the user or to innocent bystanders, such as the danger a bomb might pose. But again, the common use inquiry addresses that possibility, since weapons that are so dangerous as to pose a hazard to the user or to bystanders because their effects are unpredictable, widespread, or uncontrollable, are not in common use.

    Recall also that in Heller, the majority looked to US v. Miller’s use of the “ordinary military equipment” language to define the scope of protected arms, and said that such term “must be read in tandem with what comes after: [O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense. ‘In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.’ Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” [Citations omitted.]

    This informs us that the “in common use” language relates not to what may be in common use for criminals or for deer hunting (paging Andrew Cuomo), but for lawful purposes such as self-defense and militia service.

    So I do not think it is worth spending much time on the “dangerous and unusual” dictum in Heller. The common use standard is the key.

  2. Arnie says:

    Thank you, Rob! Very informative!

  3. Cliff says:

    Perhaps you are reading “dangerous and unusual” wrong. Perhaps it applies to weapons that are uniquely dangerous because of their unusual nature. For example, a cane gun would be more dangerous, the argument goes, than a more recognizable gun because of its unusual design. That is, the unusual nature (looking like a cane) would make it less recognizable and therefore would present a danger above and beyond that presented by a person walking down the street with a rifle slung over his back. Another example may help. Picture a BMG 50 revolver. Unusual in that it is an extremely powerful round in a small package. That design feature might make it more dangerous than a garden variety .357 in that it would be uncontrollable in the hands of anyone smaller than Andre the Giant, thus posing a greater risk to both the shooter and the innocents down range.

    I’m not sure if that is right, but it is food for thought.

    • I think dangerous and unusual means whatever Justice Scalia thinks it means.

      And if he or any of the Heller 5 is replaced, it will mean whatever Justice Sotomayor thinks.

  4. Kristophr says:

    The burst fire M-4 carbine is NOT unusual. It is the standard issue rifle for our standing army.

    That alone makes it suitable as a modern militia weapon.

  5. mikee says:

    Uncle was kind enough to post a comment I made a while back regarding the protests that can be made, that have been made by gun grabbers against every firearm from a single shot derringer to a Barrett .50BMG rifle. Derringers are concealable assassins’ weapons. The 50BMG can bring down airlines. Both (and everything in between including bolt action scoped “sniper rifles” and high capacity bullet spraying semiauto pistols) are unusual and dangerous, by the criteria of the opposition.

    When political and legal language has been perverted such that a “right” is now the description of a government power, as in the phrase “the right for police to arrest you,” there is absolutely no hope that any firearm will withstand the protest that it is “dangerous and unusual.” And the idea that “in common use” will even be mentioned is zero.

    I also note that these phrases are essentially dicta, not the substantive finding of the very narrowly tailored Heller decision, and as such will most likely have no real bearing on future court decisions, just as Miller’s “suitable for militia use” has been ignored.

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