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.
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