In re U.S. v. Fincher
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
separately? 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.
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
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
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
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
II. Origin of the phrase "dangerous and
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
with risk; perilous; hazardous; unsafe. See also Danger.
exposure to loss or injury; peril …
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.
One dangerous to life; one by the use of which a fatal wound 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.
not usual; rare.
1. full of danger or risk; causing danger;
perilous; risky; hazardous; unsafe.
2. able or likely to cause physical injury; a
not usual, common, or ordinary; uncommon in amount or degree;
exceptional; an unusual sound; an unusual hobby; an unusual
1 : exposing to or involving danger <a dangerous job>
2 : able or likely to inflict injury or harm <a dangerous
unusual - adjective
not usual; uncommon; rare
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
1. The terms "dangerous" or "danger" submit to analysis and
several deducible rules worth identifying before proceeding with
a. Rule # 1. Anything can be dangerous, given the
necessary conditions. Sunlight can be dangerous to people in
too long or too 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 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
Actively dangerous things are dangerous because of some
intervention, application or instrumentality, such as "dangerous
"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
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) …”
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 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
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 been 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. Most machine guns have long barrels and are designed
to be shoulder-mounted, or fired from a bipod, tripod, carriage,
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
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
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 terminated the supply of new
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, further limiting supply in the marketplace, and
thereby 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 (RPM) is the standard used to describe rate of
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 5.56 mm, 7.62 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, differing state laws, 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 justification) 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, or even firearms that are not machine guns.
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
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
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
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 specific 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.
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 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.
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 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.
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.
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 people.