in re U.S. v. Fincher
"Dangerous and unusual" weapons

by Gary Marbut

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 machineguns, and             people buy machineguns to protect their homes, the Court 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.

B.  Dictionary.com

Dangerous –adjective
1.     full of danger or risk; causing danger; perilous; risky; hazardous; unsafe.
2.     able or likely to cause physical injury: a dangerous criminal.

Unusual –adjective
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.

B.  Dangerous.

1.  The terms "dangerous" or "danger" submit to analysis and several deducible rules worth identifying before proceeding with this discussion:

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 is infinite.

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 processes.

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 of danger.

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 not be dangerous without active instrumentality, such as a "dangerous cliff" or a "dangerous idea."  See "Dangerous per se" above.  Potentially 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."

C. Unusual.

"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.  Such terms may be highly context dependent, such as a small, medium or large mountain, or a small, medium or large bacteria.

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:

Venn
 
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 exclude from 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 about.

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 perceived.

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 sub-machine guns.

More information about machine guns and how they work is available at:
http://en.wikipedia.org/wiki/Machine_guns

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 private 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 most common.

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 ammunition.

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 (absent sufficient cause) 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 position.

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 even 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 defined danger from them.

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 danger.

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 setting.

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.

VIII.  Conclusion

"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 se, dangerous.

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.

###

Appendix A

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
ed. 1788)

Page 17
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 protect
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.

Appendix B.

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 armour.


Appendix C

http://www.guncite.com/court/state/25nc418.html

STATE v. ROBERT S. HUNTLEY
Appeal from Settle, J., Spring Term, 1843, of Anson.

Excerpt:

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 people.

Appendix D.

Interesting discussions:

http://www.saysuncle.com/archives/2008/07/15/atf-head-on-heller/

http://armsandthelaw.com/archives/2008/10/dangerous_and_u.php