in re U.S. v. Fincher
"Dangerous and unusual" weapons
Questions to be considered: What are "dangerous and unusual" weapons in the context of the USSC Heller
decision - what does "dangerous and unusual" mean? What do
"dangerous" and "unusual" mean? How does this meaning in Heller apply to Fincher?
I. Use in the Heller decision
The words "dangerous" and "unusual" concerning weapons are used several times in the Heller decision, both by the majority and in the dissenting opinions.
A. Page 2 - Syllabus
The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms. Miller’s holding that the sorts of weapons
protected are those “in common use at the time” finds support in the
historical tradition of prohibiting the carrying of dangerous and unusual weapons. (Emphasis added.)
B. Page 51, in re Miller
The Government’s brief spent two pages discussing
English legal sources, concluding “that at least the carrying of
weapons without lawful occasion or excuse was always
a crime” and that (because of the class-based restrictions and the
prohibition on terrorizing people with dangerous or unusual weapons)
“the early English law did not guarantee an
unrestricted right to bear arms. Brief for United States, O. T.
1938, No. 696, at 9–11.” (Emphasis added.)
C. Page 55
Miller said, as we have explained, that the sorts of
weapons protected were those “in common use at the time.” 307 U. S., at
179. We think that limitation is fairly supported by the historical tradition of
prohibiting the carrying of “dangerous and unusual weapons. See 4 Blackstone 148–149 (1769) …” (Emphasis added.)
D. Stevens Dissent Page 32
It does not help respondent’s case to describe the
District’s objective more generally as an “effort to diminish the dangers
associated with guns.” That is because the very
attributes that make handguns particularly useful for self-defense are
also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use. (Emphasis added.)
E. Bryer Dissent, Page 35
These bans, too, suggest that there may be no
substitute to an outright prohibition in cases where a governmental
body has deemed a particular type of weapon especially dangerous. (Emphasis added.)
F. Bryer Dissent, Page 42
According to the majority’s reasoning, if Congress
and the States lift restrictions on the possession and use of
people buy machineguns to protect their homes, the
will have to reverse course and find that the Second Amendment does, in
fact, protect the individual self-defense-related
right to possess a machine-gun. On the
majority’s reasoning, if tomorrow someone
invents a particularly
useful, highly dangerous self-defense weapon,
Congress and the States had better ban it
immediately, for once it becomes popular Congress will no longer
possess the constitutional authority to do so. (Emphasis added.)
II. Origin of the phrase "dangerous and unusual."
Although the word "dangerous" is used about six times in Heller
assent and dissent in association with firearms, the exact phrase
"dangerous and unusual" is only used twice in the majority opinion
written by Justice Scalia, on pages 51 and 55. In the latter case
it is attributed to Blackstone from 1769. (See Appendix B) In her
Heller amicus brief for the
Cato Institute, history professor Joyce Lee Malcolm attributes that
phrase to William Hawkins, Treatise on the Pleas of the Crown from
1788. (See Appendix A)
III. Common definition of terms.
A. Blacks Law Dictionary, Fifth Edition
Dangerous. Attended with risk; perilous; hazardous; unsafe. See also Danger.
Danger. Jeopardy; exposure to loss or injury; peril …
Dangerous instrumentality. Anything which has the inherent
capacity to place people in peril, either in itself (e.g. dynamite), or
by careless use of it (e.g. boat). (Citation omitted) Due care must be
exercised in using to avoid injury to those reasonably expected to be
in proximity. …
Dangerous per se. A thing that may inflict injury without the immediate application of human aid or instrumentality.
Dangerous weapon. One dangerous to life; one by the use of which
a fatal would may probably or possible be given. As the manner of
use enters into the consideration as well as other circumstances, the
question is often one of fact for the jury, but not infrequently one of
law for the court.
Unusual. Uncommon; not usual; rare.
1. full of danger or risk; causing danger; perilous; risky; hazardous; unsafe.
2. able or likely to cause physical injury: a dangerous criminal.
not usual, common, or ordinary; uncommon in amount or degree;
exceptional: an unusual sound; an unusual hobby; an unusual response.
C. Merriam-Webster online
dangerous - adjective
1 : exposing to or involving danger <a dangerous job>
2 : able or likely to inflict injury or harm <a dangerous man>.
unusual - adjective
not usual : uncommon , rare
D. Cambridge dictionaries online
dangerous - adjective
describes a person, animal or activity that could harm you
unusual - adjective
different from others of the same type in a way that is surprising, interesting or attractive
IV. Evaluation of definitions
A. Both terms, "dangerous" and "unusual" are accepted by all
sources as adjectives, "a word that describes a noun or pronoun."
It may be presumed that all instances of "dangerous" and unusual" in
the Heller decision are used to describe or elucidate another object,
usually "weapons," always some type of firearms, sometimes machine guns
and sometimes handguns.
1. The terms "dangerous" or "danger" submit to analysis and
several deducible rules worth identifying before proceeding with this
a. Rule # 1. Anything can be dangerous, given the necessary
conditions. Sunlight can be dangerous to people in too long or
strong a dose, and the ultraviolet portion of sunlight is immediately
lethal (very dangerous) to some microorganisms. Air can be
dangerous to people under very high pressure (e.g. high pressure
air used to cut solid materials), if air is injected into a person's
vein, or if air is simply absent. Knowledge can be dangerous if
used wrong. Raccoons can be dangerous if cornered. The list
b. Rule # 2. Nothing is always dangerous. A
compound that is lethal in war may grow more food in peacetime as
fertilizer or pesticide. Extreme cold that may be devastating as
weather may also be essential for scientific experiments or industrial
c. Rule # 3. Whether or not something is dangerous depends
entirely upon prevailing conditions. Water, although essential
for usual life, is one of the leading causes of human death in the U.S.
d. Rule # 4. Danger requires an affected or
potentially-affected object. For something to be dangerous, it
must create risk to a person, and animal, or something else, such as
"wolves are dangerous to elk," or "socialism is dangerous to
democracy." Without an object, it is impossible to sustain the
argument that anything is dangerous. "Dangerous weather," for
example might be dangerous to crops or pilots. A "dangerous
calculation" might endanger the resolution of a formula. There
must be some apparent or implied object at risk to validate the concept
e. Rule # 5. Danger itself is not an object - a "thing" - but is
a condition or a subjective descriptor of a thing, an activity or a
process - a perception.
f. Rule # 6. Danger is not absolute, but is according to the eye
of the beholder - a matter of opinion. One person may think
spiders are dangerous, another not. One may think sky-diving
dangerous, another not.
g. Rule # 7. Since danger is in the eye of the beholder, danger
may be perceived but not real (a person afraid of a non-venomous
snake), and danger may be real but not perceived (a person living
happily on the slope of an active volcano).
h. Rule # 8. Level of actual danger is a combination of risk and
stake. If a person bets a penny on the lottery, there is no
serious danger even though the risk is high, because the stake is
low. Increase the stake to $1,000 and the actual danger becomes
greater. Decrease the risk (e.g. only ten lottery ticket buyers)
and the danger becomes less. This rule may be stated as "Risk X
Stake = Level of Danger."
2. Dangerous generally includes things that are actively
dangerous, such as a "dangerous stunt," and things that are potentially
dangerous, such as "dangerous terrain."
Potentially dangerous things are things that can be dangerous without
active instrumentality, such as a "dangerous cliff" or a "dangerous
idea." See "Dangerous per se" above. Potential dangerous
things are not actually dangerous without some activation.
Actively dangerous things are dangerous because of some intervention,
application or instrumentality, such as "dangerous driving."
"Unusual" may be used for near absolute rareness as "It would be highly
unusual for the Sun to go nova in our lifetimes." Or it may be
used as a condition simply less than majority, such as "It was unusual
for Mary to take a cab to work; most of the time she walked."
Thus, on a probability scale of 0% to 100%, "unusual" may be used to
cover the territory somewhere between greater than 0% and less than
50%. There is no absolute numerical standard for "unusual" in our
common usage, such as meaning only 10% probability of occurrence.
Other similar but also vague terms of quantification also sweep in
fuzzy amounts of the probability spectrum. For example,
"ubiquitous" may imply a probability of 90% to 99% of all
occurrences. "Common" might be used to describe a range of 30% to
80% of all occurrences. There are other sets of terms in our
language that also cover the probability range, such as endemic,
epidemic, and pandemic; or even small, medium and large.
Besides the range or fuzziness of such terms in colloquial usage,
another characteristic of such terms is that, as with "dangerous," they
are subject to individual perception - eye of the beholder or a matter
of opinion. Seaweed might seem unusual to someone from Oklahoma,
while it might seem perfectly ordinary or common to someone from the
coast of California.
V. "Dangerous and unusual" as used in Heller.
"Dangerous" and "unusual" are common terms in our language, terms that
certainly convey some initial meaning. At first blush these terms
seem axiomatic, self-descriptive. However, as we have seen
preceding, these terms are subject to some variation of interpretation,
including how they are perceived by the eye (or brain) of the beholder
and the context of their use.
What specifically do these terms mean when used in the Heller
decision? To begin to answer that, let us examine usage in the
Heller decision, to place these terms in context of the writing, the
times and language.
Discussion of examples from decision.
A. C. Page 55
Miller said, as we have explained, that the sorts of weapons protected
were those “in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition of
prohibiting the carrying of “dangerous and unusual weapons. See 4
Blackstone 148–149 (1769) …” (Emphasis added.)
This is the most typical example of the usage of "dangerous and
unusual" from the Heller decision. Therefore, most discussion of
this phrase will be about this occurrence.
Venn diagram. A Venn diagram is used to illustrate commonality
between concepts. In this instance, the concepts of "dangerous"
and "unusual" are related deliberately by the word "and." The
only occasion where "or" is used, as in "dangerous or unusual" is in
citing the brief of the United States in Miller (the only brief
presented to that 1939 Court). When Justice Scalia used this
phrase, writing for the majority in Heller, he overtly chose to depart
from the syntax of the United States in Miller and connect "dangerous"
and "unusual" with the word "and" instead of "or." It is presumed
that words have meaning, that Supreme Court Justices choose and use
their words carefully and deliberately, and that the word "and" was
used in Heller very deliberately and with common syntax intended.
In this case, the word "and" instructs that both of two conditions must
exist for the phrase to apply. Here is the Venn diagram for this:
As is demonstrated here, "dangerous and unusual" only applies in this
syntax where the set of "dangerous" and the set of "unusual" overlap
and both conditions are present, the green area.
B. Modifications of "dangerous and unusual" by Heller
context. In the example of "dangerous and unusual" on Page 55 of
the Heller decision, the Court speaks of "historical tradition of
prohibiting the carrying" "dangerous and unusual" weapons. This
appears to leave out of consideration the quiet, peaceable non-carrying
of "dangerous and unusual" weapons. That is, the usage does not
speak to "dangerous and unusual" weapons that are not actively carried
The usage on Page 51 of the Heller decision of "dangerous or unusual"
weapons is a quote from the U.S. brief in Miller, which more fully and
specifically speaks of "prohibition on terrorizing people with"
"dangerous or unusual" weapons. Thus, this instance seems to be
silent about possession of "dangerous or unusual" weapons that does not
terrorize people, that is quiet, orderly and with generally lawful
intent, but only applies to instances where terror is created or
C. Dangerous versus non-dangerous. In Heller, the Court was
interested in the ability of people to be able to defend themselves and
their families from loss of life or serious bodily injury.
Axiomatically, this requires possession of a self-defense weapon that
is dangerous to persons who would commit violent, interpersonal
crime. Imagine the deterrent effect or self-defense value of a
non-dangerous device that would shoot marshmallows, for example.
It is unlikely that a criminal bent on predation would be concerned
about or deterred by a citizen defending herself or himself with a
marshmallow firing device. The very quality of the self-defense
handguns essential to the core of Heller is that those handguns are
dangerous to attackers. (See Stevens dissent, Page 32, reproduced
at Section I., E., above.)
VI. "Dangerous and unusual" as applied to Fincher.
A central question in Fincher may be, is a machine gun a "dangerous and unusual" weapon as referenced in Heller?
Definition - machine guns. First, let us define a "machine
gun." A machine gun is a type of firearm that reloads itself from
an ammunition feeding device and continues to fire as long as
ammunition is available and the trigger device is activated. A
machine gun with a 20-round magazine will fire 20 rounds of ammunition
with one pull of the trigger, as long as the trigger is depressed until
the 20-round magazine is emptied. Usually, shorter bursts of
multiple rounds are fired from a machine gun by releasing the trigger
after a few rounds have fired. Machine guns are sometimes called
"fully-automatic" firearms since they continue to fire as long as the
trigger is depressed.
Fully-automatic is opposed to "semi-automatic" firearms which may look
similar to fully-automatic firearms, but semi-automatic will only fire
one round when the trigger is depressed. To fire another round
from a semi-automatic firearm it is necessary to release the trigger
and press it again.
Most machine guns are a type of rifle, in that they have spiraled
grooves cut into the inside of the barrel, called rifling, to impart a
spin to the discharged bullet to stabilize the bullet in flight.
Shotguns do not have rifling, because they are designed to throw a
charge of spherical lead pellets called shot. Since it would be
undesirable for this charge of lead shot to be subject to centrifugal
force if spun by rifling, shotguns usually do not have rifling and are
therefore sometimes called "smooth-bores." Semi-automatic
shotguns are very common. Fully-automatic shotguns are quite rare
but are produced for and used by the military. Fully-automatic
shotguns would be a type of machine gun.
Although most machine guns have long barrels, to be more like rifles
than handguns, there are fully-automatic handguns manufactured for
police and military use. And, there are fully-automatic,
short-barreled rifles that shoot pistol ammunition that are called
More information about machine guns and how they work is available at:
Commonness of machine guns in the U.S. Actually, machine guns are
quite common in the U.S. Hundreds of thousands, maybe millions,
are in the inventories of the U.S. active military, the military
reserves, and the National Guards. Nearly all federal, state and
local police agencies possess some type of fully-automatic
firearms. The most common may be M-16s, a standard, select-fire
rifle used by the U.S. military and sold or indefinitely loaned to law
enforcement agencies by the military. "Select fire" means that
there is a manual switch on the rifle that will allow the rifle to be
used in semi-automatic or fully-automatic mode.
Also, best estimates are that there are approximately 182,000 machine
guns legally owned and possessed by law abiding citizens in the U.S.,
citizens who are not members of military or law enforcement
entities. (N.B.: There may be as many as 20,000 more
legally "transferrable" machine guns in possession of law enforcement
agencies in the U.S. that could legally be transferred to individual
citizens.) Although machine guns are a minority of firearms owned
by U.S. citizens, it is not uncommon to see owners testing them,
practicing with them, or playing with them at private and public
shooting ranges in the U.S. There are many different shooting
events held across the U.S. for people who have machine guns.
Although the most well known such event is held at Knob Creek,
Kentucky, such events are held in most states of the U.S.
Cost of machine guns. Machine guns are expensive for citizens in
the U.S. to own and operate. They are expensive to purchase
because the civilian supply of new full-autos was restricted by law
since 1938 with the National Firearms Act, the Gun Control Act of 1968
and the Firearm Owners Protection Act
of 1986. Those acts registered and chopped the supply of
full-autos to U.S. civilians. With a fixed supply and a growing
demand, the price of full-autos in the marketplace has risen far faster
than that of any other legally marketable commodity in the U.S.
This, in turn, has attracted wealthy investors looking for a safe
investment haven with a sure history of value increase. This
investment has drawn product from the finite pool, limiting supply in
the marketplace, and further increased price in the marketplace.
As a result of government curtailment of supply, a very basic full-auto
that a law enforcement agency might currently purchase for $500 is
likely to cost a civilian purchaser $10,000 to $20,000. Some rare
and legal-to-own full-autos may cost $250,000, if a person can find
another willing to sell one.
Cost of operating machine guns. In addition, full-auto arms are
expensive to operate because they consume a lot of expensive
ammunition. There is considerable variation in how fast
full-autos fire, described as there "rate of fire" and quantified in
terms of rounds of ammunition that a full-auto could fire in one full
minute of operation. Although this is the descriptive standard
used, it is exceedingly rare for anyone to fire a full-auto for 60
seconds continuously. Still the rounds-per-minute is the standard
used to describe rate of fire.
The range of rate of fire is between 300 rounds per minute for
full-autos with a very low cyclic rate (such as the WWII BAR), up to
6,000 RPM for modern, electric powered "miniguns" (a modern version of
the historic Gatling gun). Cyclic rates from 600 to 1,200 RPM are
Perhaps the most common ammunition calibers for full-autos are the
historic military calibers of 5.56mm, 7.62 X 51 mm, and .50 BMG.
Current bulk costs for ammunition in these calibers is around
$.30/round for 5.56mm, $.70 per round for 7.62 mm, and $2.50 per round
for .50 BMG. Just imagine owning a Quad-50, which is four mounted
.50 BMG machine guns, which all fire from one trigger, with each firing
at about 500 RPM. To fire this machine gun for one full minute
(nobody ever does) would cost the operator about $5,000, just for
Machine guns in crime. As a result of the high initial cost of
machine guns to civilians, and the high cost of maintenance and
ammunition, civilian machine guns are never used in crime, both because
criminals cannot afford the high cost of legally-owned machine guns and
because legal owners are law abiding by definition and will not put
such investment at risk. It is said that since full-autos were
first required to be registered in 1968, there has only been one crime
committed in the U.S. with a legally-possessed machine gun. That
was when a police officer's wife used the officer's machine gun against
the officer over the officer's infidelity.
Unusual? While possession of machine guns is not highly usual (as
in ubiquitous), it is not unusual (as in rare) either, not with 182,000
machine guns in private ownership in the U.S. Whatever rarity
there may be for civilian machine gun possession is caused by
government supply-stopping edict, but not by lack of demand or
insufficient cultural interest.
Further, what density of machine guns there is among the general
population will vary regionally according to social and cultural norms,
and according to geo-political factors. In some parts of the U.S.
it is more culturally acceptable or desirable to possess machine guns,
and in some parts of the U.S. it is difficult or impossible because of
state or local laws. This dictates that it is much more usual for
people to possess machine guns in some locales than in others.
What may be highly unusual in New York or New Jersey is probably much
more common in Wyoming, Kentucky or Arkansas.
Danger of machine guns. Are machine guns dangerous? As
discussed in Sections III and IV, danger requires risk or injury to
someone or something. Since behavior injurious to people is
proscribed by our laws, injuring another person is a crime everywhere
in the U.S.
Therefore, one measure of historic machine gun danger becomes the
frequency with which they are used in criminal activity.
Discounting machine guns that are illegally possessed, machine guns are
essentially never used in crime. According to this measure, then,
machine guns are not dangerous at all; far less dangerous, for example,
than automobiles, water, or prescribed medicines.
What about the danger if machine guns are misused, pursuant to Rule # 1
in Section 4(B)(1), that there are conditions under which anything can
be dangerous? It is axiomatic that one bullet from any firearm
can kill or severely injure a person. Is a bullet from a machine
gun any more powerful or lethal that a bullet of the same ammunition
from a different type of firearm? No, certainly. Are
multiple bullets from a machine gun more dangerous than multiple
bullets of the same caliber from a different type of firearm.
No. Can a machine gun fire more bullets in a fixed amount of time
than another type of firearm using the same ammunition. Yes.
So, the only conditions under which a machine gun could possibly be
more dangerous than a different type of firearm firing the same
ammunition is if that firing is in a time-limited period.
This is the primary context in which the military makes best use of
machine guns, against multiple attackers who will overrun a defended
position in short order if not stopped. It is the short order
that makes machine guns more suitable than standard rifles shooting the
same ammunition. Thus, a machine gun in the hands of a defender
is dangerous to multiple attackers trying to take the defenders
It is worth commenting on the difference between the potential and the
actual danger of machine guns. Certainly the potential danger of
machine guns is great, if they are misused, just as the potential
danger of automobiles is great if they are misused. It was
several years ago that a motorist gunned a car onto a Nevada sidewalk
crowded with pedestrians, killing and injuring many. That
potential danger is definitely present for automobiles. The
second or third greatest mass murder in U.S. history was accomplished
with a quart of gasoline thrown into a New York City nightclub.
Scores died. So, the potential is there with gasoline, too.
Why don't we prohibit cars and gasoline if the potential danger is so
high? Because the actual danger is not that great. As with
machine guns, gasoline and cars are rarely used to deliberately injure
or kill people. Said differently, the stakes may be high, but the
actual risk is low, making the level of danger low.
Of course, there is likely a considerable gap between the perceived
danger from machine guns and any real danger from machine guns.
Many perceptions are driven by Hollywood, by an entertainment industry
that is a major purveyor of non-reality - a non-reality that some may
confuse with actual reality. How many movie watchers are likely
to know that out of 182,000 legally-owned machine guns in the U.S.,
only one is known to have been used to commit a crime in the past 50
years? Probably many of those who get their information from
television and movies would say that most machine guns are used for
criminal acts. This demonstrates the difference between
perception and reality concerning danger from machine guns.
Also, as established above, for actual danger to exist there must be an
object for the danger to act upon. Without an object for risk to
apply to, no assertion of danger may be sustained. It is probably
fair to say that the usual perception of danger from machine guns is to
people - that people are most commonly the perceived object of danger
from machine guns. Probably nobody would claim that machine guns
mount a risk to willow trees, cars, good grammar or climate. If
risk to people is the concern and people are not being injured or
killed by legally-owned machine guns, then there can be no danger from
Finally, it is worth looking at the risk/stake analysis concerning the
level of danger from machine guns (Risk X Stake = Level of
Danger). Assuming again that the perceived risk is to people, we
should admit that the stakes are high - we value human life and
peoples' well-being very highly. However, since people are simply
not being killed or injured by law abiding possessors of machine guns,
the actual risk is essentially non-existent, so the real level of
danger is also very low or non-existent.
Fincher's machine guns. Were any machine guns in Fincher's
possession objectively "dangerous," were they "unusual," and were they
"dangerous and unusual."
Unusual? Whatever machine gun(s) Fincher possessed were among a
pool of 182,000 existing in the U.S. in the hands of private
individuals, and hundreds of thousands or millions more in the hands of
U.S. police and military. It may be fair to say that possession
of a machine gun is "not common" in that most people and even many gun
owners do not possess machine guns. It is probably also fair to
say that possession of a machine gun in Arkansas is much more usual
than in some other parts of the U.S.
In determining whether or not Fincher's machine gun(s) were "unusual"
the context must be determined. It is probably correct to say
that possession of a machine gun by someone not military or police (and
excepting overt criminals) would definitely be "unusual" in Washington,
D.C. or New York City. However, in Arkansas such possession would
be much less "unusual," perhaps, even likely, not "unusual" at all.
Dangerous? It has not been demonstrated that there was any object
to any theoried danger from Fincher's machine guns. Fincher is
reported to have been a peaceable citizen, not a particularized threat
to any individual or individuals. It might be argued that
Fincher's possession of machine gun(s) was a threat to the peace and
good order of the community, and the peace and good order of the
community was the object of danger. If so, that threat has not
been substantiated. There was no hue and cry. There were no
reports that Fincher had terrorized members of the public or the
community. Barring those sorts of threats, all that seems to
remain is some possible vague and nearly humorous theory of threat to
public respect for laws, good ones and bad ones. We are reminded
by the history and example of the Fugitive Slave Act that not all laws
deserve or obtain public respect. Thus, the theory of threat to
respect for the laws seems to be a fatally thin reed upon which to rely
to identify an actual object for danger from Fincher's machine
gun(s). Without an object for danger, there can be no actual
Also, there is the question of perception of danger. It appears
as though law enforcement officials most directly responsible for
Fincher's local good conduct perceived no threat from his possession of
machine gun(s). Since perception of danger is a variable concept,
depending on the beholder, isn't the most valid perception cognizable
that of the law enforcement officials most knowledgeable about Fincher
and most locally responsible? If the local people wearing badges
and familiar with Fincher personally didn't perceive danger in his
possession of machine gun(s), doesn't that demonstrate that there was
no actual danger?
Accordingly, the only conditions under which it can clearly be asserted
that Fincher's possession of machine gun(s) was dangerous are under
Rule # 1, that anything can be dangerous under some conditions and
under Rule # 7, the distant perception of danger by some "authority"
not founded in general or local reality.
Otherwise, Fincher's possession of machine gun(s) can not have been
either "dangerous" or highly "unusual," and therefore also not
"dangerous and unusual."
VII. Application of definitions and use in Heller to Fincher
The entire context of the Heller decision was the highly urbanized, socially challenging and crime-stressed area of Washington, D.C. And, Heller
was all about handguns - handguns only. When thinking focally
about handguns in D.C., it would not be surprising for the Supreme
Court to lean more towards viewing machine guns as "dangerous and
unusual" weapons, for this context.
Machine guns would certainly be unusual in D.C., because people are not
allowed to legally possess machine guns there. Before the Heller decision, even handguns affirmed in Heller were unusual in D.C., and were argued by many opponents to Heller
to be dangerous. Thus, as of the writing of Heller, handguns were
definitely "unusual" in D.C. One must presume from this that the
Supreme Court in Heller allowed handguns because they are not both dangerous and unusual. Since they were definitely unusual pre-Heller, it must be concluded that the Supreme Court does not believe handguns are dangerous.
Also, since most machine guns are rifles, and there are definitely
safety issues with projectile reach from rifles associated with
innocent bystanders in an urban setting, it would be natural for anyone
on the Supreme Court to see machine guns as dangerous in that urban
If the Heller dialog is to be
applied beyond the narrow settings of D.C., then the context of that
application will require some adjustment. The exact types of
firearms that were held to be protected in Heller
would have been highly unusual in Blackstone's 1788 (whence the
expression "dangerous and unusual" originated) and likely would have
been considered especially dangerous in England in 1788. But not
in D.C. in 2008, as per Heller.
Thus, the "dangerous and unusual" litmus test is and must be
contextual. By extrapolation, a machine gun in Arkansas quite
likely would not fit the same definition of "dangerous and unusual"
that the Supreme Court had in mind when ruling about handguns in D.C.
"I have but one lamp by which my feet are guided; and that is the lamp
of experience. I know of no way of judging the future but by the past."
-- Patrick Henry
In the past, machine guns in law-abiding civilian hands have not been
dangerous to anyone. Nor have machine guns been highly unusual in
many parts of the country.
Further, there is no admitted object to any danger posed by Fincher's
possession of machine gun(s), thus, those machine gun(s) were not, per
Finally, extrapolating what constitutes "dangerous and unusual" weapons
in D.C. to Arkansas requires some contextual readjustment.
For each step of this rationale', it becomes increasingly difficult,
perhaps impossible, to sustain the theory that Fincher's machine gun(s)
were "dangerous and unusual" weapons.
Heller, BRIEF OF THE CATO INSTITUTE AND HISTORY PROFESSOR JOYCE LEE MALCOLM AS AMICI CURIAE IN SUPPORT OF RESPONDENT
Referring to William Hawkins, 1 Treatise on the Pleas of the Crown (Leach ed., 6th
Sir John Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686); see K&B at
104-05. He had been carrying pistols. King v. Knight, 90 Eng. Rep. 330
(different reporter). The Chief Justice explained that the statute’s
“meaning” was “to punish people who go armed to terrify the king’s
subjects,” which had been “a great offense at the common law.” 87 Eng.
Rep. at 76. The statute was “almost gone in desuetudinem,” but “where
the crime shall appear to be malo animo, it will come within the Act
(tho’ now there be a general connivance to gentlemen to ride armed for
their security).” 90 Eng. Rep. at 330. Knight was acquitted and bound
to good behavior. 87 Eng. Rep. at 76.
Hawkins thereafter discussed Northampton in a chapter on
affray—fighting in public to the terror of the people. He thought it
“certain,” based on Northampton, “That in some cases there may be an
affray where there is no actual violence; as where a man arms himself
with dangerous and unusual weapons, in such a manner as will naturally
cause a terror to the people.” Hawkins, ch. 63, § 4. Blackstone
tracked this formulation. 4 Blackstone at *149.
It followed that “no wearing of arms is within the meaning of this
statute, unless it be accompanied with such circumstances as are apt to
terrify the people,” by causing “suspicion of an intention to commit
an[ ] act of violence or disturbance of the peace.” Hawkins, ch. 63,
§ 9. Dewhurst thus concluded that “[a] man has a clear right to
himself when he is going singly or in a small party upon the road where
he is traveling or going for the ordinary purpose of business.” 1 St.
Tr. at 601-02.
Hawkins added that Northampton also did not bar arming oneself “to
suppress dangerous rioters, rebels, or enemies.” Hawkins ch. 63, §
10. The Recorder shared this view. See Recorder at 62.
Hawkins did not elaborate on “dangerous and unusual” weapons. Given
general usage, a firearm likely was “dangerous.” See, e.g., King v.
Oneby, 92 Eng. Rep. 465, 467 (K.B. 1727) (“dangerous weapon” includes
“a pistol, hammer, large stone &c. which in probability might kill
B. or do him some great bodily harm”). Unusualness might contribute to
causing a terror: “[P]ersons of quality” were “in no danger of
offending against this statute by wearing common weapons.” Hawkins, ch.
63, § 9.
Blackstone, Book 4, Chapter 11.
9. THE offence of riding or going armed, with dangerous or unusual
weapons, is a crime against the public peace, by terrifying the good
people of the land; and is particularly prohibited by the statute of
Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and
imprisonment during the king's pleasure: in like manner as, by the laws
of Solon, every Athenian was finable who walked about the city in
STATE v. ROBERT S. HUNTLEY
Appeal from Settle, J., Spring Term, 1843, of Anson.
It has been remarked that a double-barrel gun, or any other gun, cannot
in this country come under the description of "unusual weapons," for
there is scarcely a man in the community who does not own and
occasionally use a gun of some sort. But we do not feel the force of
this criticism. A gun is an "unusual weapon," wherewith to be armed and
clad. No man amongst us carries it about with him, as one of his every
day accoutrements--as a part of his dress--and never, we trust, will
the day come when any deadly weapon will be worn or wielded in our
peace-loving and law-abiding State, as an appendage of manly equipment.
But although a gun is an "unusual weapon," it is to be remembered that
the carrying of a gun, per se, constitutes no (p.423)offence. For any
lawful purpose--either of business or amusement--the citizen is at
perfect liberty to carry his gun. It is the wicked purpose, and the
mischievous result, which essentially constitute the crime. He shall
not carry about this or any other weapon of death to terrify and alarm,
and in such manner as naturally will terrify and alarm a peaceful