What are "Dangerous and Unusual" Weapons?
And why aren't they protected by the Second Amendment?
What are "Dangerous and Unusual" Weapons? And why aren't they protected by the Second Amendment?
The second question is the easiest to answer. Dangerous and unusual weapons are not protected by the Second Amendment because in District of Columbia v. Heller (2008) the United States Supreme Court said they are not protected arms. That’s all it takes.
The Supreme Court is not infallible but when it comes to what Federal law says, SCOTUS has the final say in court. Congress and the American People have the final say when it comes to correcting mistakes of SCOTUS but Congress rarely exercises its power to correct the mistakes of SCOTUS but it has been known to overrule SCOTUS when the Court got it right, such as when Congress reenacted the Federal Gun-Free School Zone ban.
In support of its conclusion in its Heller opinion, the SCOTUS cited 12 sources which included 4 citations to 19th century state court opinions.
The problem with these 12 sources is that none of them supports the Court’s conclusion that “dangerous and unusual” weapons are not protected by the Second Amendment. Moreover, these 12 sources do not tell us what a dangerous or unusual weapon is, let alone how the lower courts are to determine whether or not a particular arm is dangerous and unusual or not.
Indeed, some of the 12 sources suggest that firearms (e.g., handguns) that are easily and ordinarily carried concealed are dangerous and unusual weapons. That contradicts NYSRPA v. Bruen which said that the Second Amendment protects handguns whether they or Medieval handguns three-feet in length or small pocket pistols that fit entirely in the palm of one’s hand.
The Heller opinion implied that small handguns are arms protected by the Second Amendment where it said, “…[a handgun” is easier to use for those without the upper-body strength to lift and aim a long gun…”
Presumably, if one lacks the upper-body strength to lift and aim a long gun then he also lacks the upper-body strength to wield a large handgun of a type that men were required to keep and bear under the Militia Act of 1792.
Throughout the 19th century, the courts were all in agreement that regardless of whether or not the Second Amendment was an individual right or limited to militiamen, long guns were arms protected by the Second Amendment as were large handguns. Where those 19th-century courts disagreed, was on the question of whether or not handguns that are easily and ordinarily carried concealed are arms protected by the Second Amendment. There was one 19th-century court opinion in which the Court held that large pistols were arms protected by the Second Amendment but the judges did not know what a revolver was and so they remanded the case back to the lower court to determine whether or not revolvers were used in war.
Then, as now, judges tend to be woefully ignorant about firearms. However, all of the courts were in agreement that the Second Amendment protected arms that are weapons of war.
That common agreement continued well into the 20th century when the United States decided the case of US v. Miller (1939).
The Supreme Court said, “In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
How many times have you heard someone say that the Second Amendment does not protect weapons of war?
During the oral argument in District of Columbia v. Heller, the government’s attorney representing the District of Columbia (correctly) argued that the Second Amendment protects armor-piercing ammunition as well as machine guns.
The Militia Act of 1791 required able-bodied males from ages 18 to 45 to keep and bear large caliber rifles or muskets. The latter were designed to penetrate plate armor worn by soldiers, and so “Yes” the Second Amendment protects armor-piercing bullets as well as lineal descendants of the firearms that existed in 1791 (i.e., machine guns).
I suspect that the exchange between the government attorney representing the District of Columbia and Justices Scalia and Roberts explains why the Heller opinion said that “dangerous and unusual” weapons are not protected by the Second Amendment. However, they are not protected because the text, history, and tradition of the Second Amendment say they are not protected. They are not protected simply because the justices did not want them to be protected by the Second Amendment. That has not changed with the current line up of justices on the bench.
Which brings us to the question, “What are "Dangerous and Unusual" Weapons?”
Since the Second Amendment was enacted in 1791, the United States Supreme Court has decided only four Second Amendment cases on the merits (Caetano v. Massachusetts was not a decision on the merits), and one, United States v. Miller (1939), was a case in which only one side showed up, the government. The term “dangerous and unusual” does not appear in the Miller opinion.
Notwithstanding that the 12 sources in the Heller opinion do not support the Court’s conclusion that dangerous and unusual weapons are not protected by the Second Amendment, turning to history isn’t much help either in defining the term.
In 1383, during the reign of Richard II of England, Parliament prohibited bearing launcegays on horseback. What is a launcegay you might ask. A launcegay is a small, ceremonial wooden lance with a ribbon attached.
The historical record is silent as to why Richard II and his parliament thought launcegays were dangerous and unusual weapons let alone why they should be banned. In 1387, Geoffrey Chaucer’s story, “(The Tale of) Sir Thopas” was published. Chaucer used a launcegay as a comedic device when he armed Sir Thopas with a launcegay to do battle with a giant. Apparently, a launcegay was not a weapon of war. They were as dangerous as any other pointy stick, and likewise not “unusual.”
Leonardo da Vinci once promoted himself as a builder of “dangerous and unusual weapons” by which he meant siege towers and catapults (he did not mention his other inventions such as his “gun organ” (machine gun) or tank.
Justice Scalia was of the opinion that the Second Amendment protects only some arms. Arms that an individual can carry even though had one asked the man on the street in 1791 whether or not cannons are arms he would have said, “Yes.” A 19th century court mentioned cannons specifically in its list of arms that are protected by the Second Amendment. The fledgling United States Navy compiled a catalog of ships that included the number of cannons each ship bore. “Bearing arms” was never limited to only the arms an individual could carry but SCOTUS is not going to revisit that question, at least not in my lifetime.
In 1541, King Henry VIII of England banned crossbows altogether and handguns shorter than three feet in length which the law characterized as “short.” Although what was considered short would diminish over time, the question as to whether or not firearms that are easily and ordinarily carried concealed are arms protected by the Second Amendment would remain an open question until the Supreme Court in NYSRPA v. Bruen (2022) said that these small, easily concealable firearms (or at least handguns) are protected arms.
Nevertheless, there will no doubt be judges in future cases who will hold that “micro-handguns” are not arms protected by the Second Amendment because the Bruen opinion referred to “pocket pistols” as having a barrel length of perhaps 3 or 4 inches, therefore handguns with a barrel length less than 4 inches can be banned because the Bruen opinion did not definitively say “3 inches”. SCOTUS said, “Perhaps.”
Other than small handguns, certain types of knives (e.g., Bowie knives and the similar “Arkansas toothpicks”), and uncommon weapons such as brass knuckles, there isn’t much we can conclude from history as to what constitutes “dangerous and unusual” arms.
Case in point. In the Colonial American era, the English courts prohibited the wearing (bearing) of armor in public but one could keep the armor in his home and wear it in public to stop an affray (street fight) or to quash a riot. Privy (concealed) coats of mail could be worn in public. What constituted “unusual” by this time in England was based on one’s social class. An English gentleman could carry a handgun without it being said to be unusual or a crime. The same could not be said of the lower classes in England. But regardless of one’s social status, using a concealed weapon to kill one’s opponent was punishable by death without the possibility of a pardon or lesser punishment. That was the law in England from 1603 to 1825.
In England, members of the upper crust were required to wear swords in public. When William Penn was considering becoming a Quaker, he lamented that English law and custom required him to carry a sword because of his class. His fears were quieted when informed that Quakers are free to carry swords. What Quakers cannot do is to use one’s sword against another human being. The English poet George Byron created a scandal when he refused to carry his sword in public.
In the United States, swords were recognized as arms protected by the Second Amendment regardless of one’s social standing. The carrying of swords fell out of fashion after the Civil War but there is no history or tradition of banning swords in the United States let alone characterizing them as dangerous and unusual weapons. Swords are, of course, dangerous but because it is now unusual for members of the general public to wear a sword, does that now make them “dangerous and unusual” weapons that can now be banned?
That is not a laughable question. Federal Judge Kimberly Miller late last year upheld California’s ban on openly carrying loaded and unloaded handguns because she “reasoned” that although the Open Carry of handguns was protected by the Second Amendment in 1791, those were single-shot pistols. Once handguns became capable of firing more than one round they became, in her words, “murder weapons” and therefore not protected by the Second Amendment. That case is Baird v. Bonta, and is now being appealed to the 9th Circuit Court of Appeals.
Not to be undone, on May 1, 2014, my lawsuit challenging California’s prohibitions on openly carrying loaded and unloaded rifles, shotguns and handguns lost because Federal District Court Judge Samuel James Otero and his magistrate judge lapdog Suzanne Segal (both now retired) compared firearms to crystal meth and people who carry firearms to dealers in crystal meth. Therefore, they held, the American People do not have even the right to possess firearms, let alone carry them in public.
It was not until September 12, 2022, did a three-judge panel of the 9th Circuit Court of Appeals vacate that decision of the trial court and remand the case back to the district court for proceedings consistent with NYSRPA v. Bruen, where my lawsuit remains to this day.
Today, there are seven petitions for a writ of certiorari pending before the United States Supreme Court challenging bans on the possession of semi-automatic rifles and/or “large capacity” magazines. Six are appeals from preliminary injunctions. One is a petition before final judgment. As none of these are petitions from a final judgment, the petitions are very likely to be denied. A betting man would wager that even if they were petitions from final judgments, making SCOTUS their last resort, the petitions would still be denied.
Amusingly, despite the United States Supreme Court opinion in US v. Miller, and despite every 19th century court having held that weapons of war are protected by the Second Amendment, post-Heller inferior court judges are now trumpeting that weapons of war are not arms protected by the Second Amendment. Therefore AR-15s and the like are weapons of war because they are used by the military and therefore are not protected arms and “large capacity” magazines, likewise are used by the military and therefore are not protected either even if one assumes that magazines are “arms” to begin with which anti-gun judges don’t think they are.
We have nobody to blame but ourselves that the United States Supreme Court said that dangerous and unusual weapons are not protected by the Second Amendment and strongly implied that machine guns, such as the M-16, are not protected arms because they are “dangerous and unusual”. That gave the inferior courts carte blanche to do what they have been doing ever since the Heller opinion was published in June of 2008, upholding every anti-gun law that lands on their desk.
Second Amendment advocates should stop trying to justify the mistakes made in the Heller, McDonald, and Bruen opinions. Their justifications are digging the Second Amendment an even deeper hole than it is in now.