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« Study finds no link between gun shows and gun deaths | Main | Roundup of Nordyke briefs »

"dangerous and unusual weapons"

Posted by David Hardy · 2 October 2008 11:15 AM

Prof. O'Shea's comment to a prior post led me to wonder: just what were the "dangerous and unusual weapons" that common law viewed as outside the right to arms? Everybody had muskets, pistols, knives, and before that bows and pole arms. For much of the period, no gentleman would go out without his sword. Blunderbusses, the equivalent of a sawed-off shotgun, were pretty common. Apparently private artillery was commonly privately owned (in the Heller briefing, an 18th century Boston requirement that guns, mortars and cannon be unloaded if stored indoors came up). Tom Jefferson had a pocket pistol specifically designed for concealed carry.

The only thing I can readily think of is the Infernal Machine, a generic term for various large assassination tools (i.e., wine kegs filled with gunpowder and surrounded with metal straps for fragmentation, or in one case, a huge 20-barreled gun), but even these were late in the period. (The bomb directed at Napoleon was what I remembered; he was saved by a drunken coachman who made the wrong turn, and didn't even awaken when the bomb detonated. He did have a reputation of being a sound sleeper, but that was a bit much).

Apart from that, I suspect the concept was "someday somebody may invent a dangerous and unusual weapon, and we could do something about it if they ever do."

10 Comments | Leave a comment

JJR | October 2, 2008 1:11 PM | Reply

Presumably nuclear arms of any size would fall under "dangerous and unusual", as would things like TOW missiles or a LAW rocket...

What about hand grenades? or rifle grenades, launched using blank rounds, like on the Yugo SKS?

Stephen Halbrook has commented in the past that by arms he understands that to means standard infantry "small arms".

James | October 2, 2008 1:48 PM | Reply

By that standard, a LAW, SRAW, AT4, etc would all be readily available, since they're standard equipment in an infantry squad. Typically two AT-4's or LAW's per squad (one per fire team). Each fire team has:

team leader M4
automatic rifleman M249 belt-fed machinegun
grenadier M4 with M203 40mm grenade launcher
rifleman M4 plus M118 Claymore mine and AT4 rocket launcher

straightarrow | October 2, 2008 4:59 PM | Reply

Works for me James

Mike O'Shea | October 2, 2008 5:48 PM | Reply

There's the whole U.S. 19th century "civilized warfare" concept, where the right to arms doesn't encompass weapons that (the courts thought) were typically useful only in brawls, "broils," ambushes, etc. Prohibitions on carrying bowie knives and derringers upheld under that reasoning.

But many of those decisions were premised on the old Miller idea (I say "old" because I don't think it survives Heller, at least not without substantial change) that citizens had the constitutional right to keep and carry military arms, but not other types of weapons.

In a forthcoming article in the West Virginia Law Review, I suggest that courts should apply the "dangerous and unusual" criterion by looking, in part, to the equipment issued to ordinary patrol officers in police departments today. If the government is willing to put a self-loading carbine with a 30-round mag in every patrol cruiser driving around your neighborhood, then it's hard to claim such weapons are "dangerous and unusual."

Note also that the passage in Heller we're talking about actually just asserts a tradition of prohibiting the carry of "dangerous and unusual weapons." Wouldn't necessarily mean you can't keep 'em at home and on your business property.

Andy Freeman | October 2, 2008 11:06 PM | Reply

> In a forthcoming article in the West Virginia Law Review, I suggest that courts should apply the "dangerous and unusual" criterion by looking, in part, to the equipment issued to ordinary patrol officers in police departments today. If the government is willing to put a self-loading carbine with a 30-round mag in every patrol cruiser driving around your neighborhood, then it's hard to claim such weapons are "dangerous and unusual."

Hmm. If we apply such "community standards", the folks in Chicgo get Thompsons, and not the semi-autos from Auto-Ordinance either.

Jim W | October 3, 2008 11:45 AM | Reply

The law that Scalia quotes is a 1300s era English law regarding the _carrying_ of dangerous and unusual weapons in public places. The idea is that carrying weapons that cause unrest by their mere display are forbidden unless (and I paraphrase heavily because such things didn't exist back then) carrying out some military or law enforcement duty for the king.

In my mind, this is directly analogous to modern statutes in open carry states that forbid "going armed to the terror of the public." Under such laws, you could bar carrying of AK-47s and other military arms on NYC streets but you the state simply lacks the authority to ban people from owning them.

This whole debate is meaningless because such restrictions didn't go to possession, only to public carry. We're drawing a parallel to the wrong laws.

Jim W | October 3, 2008 11:48 AM | Reply

And obviously, what sort of restrictions are appropriate from one place to another would vary greatly- the real balance to be struck is between preserving the power of local governments to ban carry of weapons in ways that disturb the peace while preserving the right of the citizenry to carry weapons for self defense.

I also think that the near-completely legalization of concealed carry largely moots this issue by providing a non-alarming way for people to carry firearms in public. The state gets public order and the people get self defense and the sheeple are none the wiser.

Jim D. | October 3, 2008 8:15 PM | Reply

So long as we love them, they are not unusual.
- paraphrasing Tom Jones*

"Unusual - uncommon, "rare" i.e., seldom occuring

It's a relative value. Does this give cover to those limiting possession, or does it void their argument? What kind of a defense would "It's not unusual" be? I would think any common criminal employing this defense would be laughed out of court.

Gotta find something more substantial, methinks.

* "It's not unusual to loved by anyone..."

straightarrow | October 4, 2008 3:47 PM | Reply

Vermont.

Dan | July 11, 2009 9:53 PM | Reply

There's a natural logical limit for the 4th Amendment. Personal protection requires easy carry
and concealable firearms.

Anything that cannot be easily carried or concealed should be restricted. However, if a liberal translation of the US Constitution is made then
a "free people" ought to have the right to posses
such items necessary in order to maintain their freedom and defend their enumerated rights.

Does this mean armored personnel carriers , tanks, fully operational combat ships and submarines? Sounds ridicules at first, but
should a dictator seize power how then can the people exercise their right to kick him / or her out of power?

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