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View Full Version : "Dangerous and unusual", please explain


John Galt
10-23-2013, 8:59 PM
This comes up in Heller. Can somebody explain what this means? Why couldn't this line of thinking be used to challenge the California ban on silencers? They are only unusual in CA because they are limited by a CA enacted law.

mattj9090
10-23-2013, 9:01 PM
+1
I want a damn can!

wolfwood
10-23-2013, 10:12 PM
This comes up in Heller. Can somebody explain what this means? Why couldn't this line of thinking be used to challenge the California ban on silencers? They are only unusual in CA because they are limited by a CA enacted law.

I am apparently the first attorney in the country to bother to look this up but during the relevant time period 13th-19th century unusual referred to a class of conduct with a protected arm. The Heller Court rely on several 19th century cases to state their is a tradition of prohibiting carrying dangerous and unusual weapons. All weapons were considered dangerous. Here are two of the cases cited in Heller. State v. Huntley, 25 N.C. (3 Ired.) 418, 40 Am. Dec. 416 (1843).

The jurors for the State upon their oath present, that Robert S. Huntly, late of the county aforesaid, laborer, on the first day of September, in the present year, with force and arms, at and in the county aforesaid, did arm himself with pistols, guns, knives, and other dangerous and unusual weapons, and being so armed, did go forth and exhibit himself openly, both in the daytime and in the night, to the good citizens of Anson aforesaid, and in the said highway and before the citizens aforesaid, did openly and publicly declare a purpose and intent, one James H. Ratcliff and other good citizens of the State, then and there being in the peace of God and of the State, to beat, wound, kill, and murder, which said purpose and intent, the said Robert S. Huntley, so openly armed and exposed and declaring, then (p.419)and there had and entertained, by which said arming, exposure, exhibition, and declarations of the said Robert S. Huntley, divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State. Id.



And in State v. Lanier, 71 N.C. 288 (1874). “The offence of going armed and dangerous or unusual weapons is a crime against the public peace by terrifying the good people of the land, and this Court has declared the same to be the common law in State v. Huntley 3 Ired. 418…in this case we attach no importance to the fact that the defendant had no arms, for we think it may be conceded that driving or riding without arms through a court house or a crowded street at such a rate or in such a manner as to endanger the safety of the inhabitants amounts to a breach of the peace and is an indictable offence at the common law”. Id at 289.


as you see from Huntley several "common" weapons are in that list. Guns, knives, pistols etc. Accordingly, they were not dangerous other than to the extent all weapons are dangerous. Accordingly why are they unusual? Its due to how they were being used. The lower courts are misinterpreting the phrase.

ToldYouSo
10-24-2013, 7:21 PM
This comes up in Heller. Can somebody explain what this means? Why couldn't this line of thinking be used to challenge the California ban on silencers? They are only unusual in CA because they are limited by a CA enacted law.

Unfortunately, the Heller decision didn't explain in great detail what it meant by "dangerous and unusual." You can get some idea by reading the citations in the first of the two short paragraphs Heller devoted to the topic.

"Dangerous and unusual" dates back to 1328 in the Statute of Northampton. Men wearing suits of armor were terrorizing villagers. The law provided that unless on King's business no man could "go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere."

Centuries later the English courts concluded that suits of mail were not "dangerous and unusual" and "dangerous and unusual" was interpreted in the social context of the person carrying the weapon. For example, a gentleman could carry a sword and pistol (gentlemen were required to carry swords) but an itinerant laborer could not. I.e., it would be unusual for a peasant to carry these types of dangerous weapons.

Presumably, it is still illegal to ride through a market place wearing a suit of armor in England. :)

In a Fox News interview, Justice Scalia gave an example of a man walking through the center of town bearing a headsman's ax with the intent of terrorizing the villagers. A "headsman's ax" is an ax specially designed for executions.

American common law cases developed the concept that some variations on types of arms were "dangerous and unusual" and therefore not protected. A common example of such a weapon is a "toothpick" (e.g., Bowie knife). Several 19th Century cases concluded that these knives are not the kind of knife that a person would normally carry, particularly in the context of a militia, although Heller stated that "The People" are entitled to bear a wider variety of weapons than a militia.

Particularly telling in Justice Scalia's Fox News interview is that the Supreme Court has not decided whether or not machine-guns, or even shoulder fired missiles are "dangerous and unusual" weapons.

In short, we don't know. California courts think that AK series rifles are "dangerous and unusual" and the 9th Circuit Court of Appeals thinks that machine-guns are "dangerous and unusual" weapons and therefore fall outside the scope of the Second Amendment.

Tincon
10-24-2013, 7:25 PM
I wrote a detailed analysis in another thread:

Regarding the "dangerous and unusual" term, who was originally thought it to be a danger to? The shooter, shootee, bystanders, or the public at large?

It really isn't clear. The quote from Heller is: We think that limitation is fairly supported by the historical tradi*tion of prohibiting the carrying of “dangerous and unusual weapons.” The Court then gives several cites.

The cites are all very old, but it seems like they tend to suggest weapons which, by their brutal nature, would lead "to the terror of the by-standers: and it is called an affray because it disturbs the public peace, by affrighting or making men afraid. The “affrighting” or “putting in fear” is one of the ingredients of the offence. . . . if persons arm themselves with deadly or unusual weapons for the purpose of an affray, and in such manner as to strike terror to the people, they may be guilty of this offence, without coming to actual blows." O'Neill v. State (1849) 16 Ala. 65, 67

Again here: "it seems certain there may be an affray when there is no actual violence: as when a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people; which is said always to have been an offence at common law, and is strictly prohibited by statute." State v. Langford (1824) 10 N.C. 381, 383-84

In fact one of the cites in that string (under "unusual or dangerous") deals with a situation where a person may have been guilty of such a public disturbance without being armed at all (he rode a horse through the courthouse).

Other weapons that would withstand a ban might be: "...pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives. Can it be understood that these were contemplated by the framers of our bill of rights? Most of them are the wicked devices of modern craft." English v. State (1872) 35 Tex. 473

Except of course we know that "pistols," or handguns, cannot now be banned as "unusual and dangerous". But maybe those were more frightening back in the day. It may well be that what can be banned is whatever happens to scare the crap out of people, as arbitrary as that may seem. But clearly SCOTUS is not willing to accept that just anything can be scary and therefore banned, as demonstrated by Heller. I would hope they will also carve out an exemption for the most common sporting rifle in the US.

speedrrracer
10-24-2013, 8:51 PM
It always amazes me how we're endlessly waiting for the Court to clarify this or that via some ruling.

Then, when they make a ruling, we run around

:willy_nilly:

wondering what they meant in the ruling

John Galt
10-24-2013, 9:25 PM
Thanks for the clarification. This gives me a much better understanding.

zhyla
10-25-2013, 10:42 AM
That clarifies what "unusual" might mean but doesn't really explain "dangerous". My thinking is that "dangerous" is not all weapons. There's nothing all that dangerous about a modern pistol on my hip unless I'm dangerous (e.g. bent on killing people). Whereas a bucket of nitroglycerin is dangerous all by itself.

Another way something could be dangerous is the scale of the destruction possible. As far as I know a surface-to-air missile is fairly safe and stable, but it's a static danger in that it can be stolen and used to harm a lot of people.

A regular rifle or handgun isn't dangerous in this line of thinking.

Tincon
10-25-2013, 11:35 AM
That line of thinking is probably incorrect. "Dangerous and unusual" here is a term of art. It doesn't really mean what an ordinary person would consider the definition of either of those two words to be. It really just means that which inordinately frightens people.

ToldYouSo
10-25-2013, 11:55 AM
That clarifies what "unusual" might mean but doesn't really explain "dangerous". My thinking is that "dangerous" is not all weapons. There's nothing all that dangerous about a modern pistol on my hip unless I'm dangerous (e.g. bent on killing people). Whereas a bucket of nitroglycerin is dangerous all by itself.

Another way something could be dangerous is the scale of the destruction possible. As far as I know a surface-to-air missile is fairly safe and stable, but it's a static danger in that it can be stolen and used to harm a lot of people.

A regular rifle or handgun isn't dangerous in this line of thinking.

Don't think of it as two separate terms. "Dangerous and Unusual" is a single term with a legal history going back to the early 14th Century. If an when such a case makes it before the US Supreme Court, the remaining Heller justices are going to look to the centuries of case law and not to some proposed modern reinvention of the term.

fr33domfightr
10-25-2013, 12:13 PM
It always amazes me how we're endlessly waiting for the Court to clarify this or that via some ruling.

Then, when they make a ruling, we run around

:willy_nilly:

wondering what they meant in the ruling

It would seem many here are always waiting on the courts, but doing so is "reactionary," which is what happens again after a decision. And I might add, won't change politicians minds, at all, who will continue to legislate, and again we'll be waiting on the courts. Trying to gain public attention and change minds would be "proactive," which would be an antithesis to the norm, but would probably be better at slowing the attacks.


That clarifies what "unusual" might mean but doesn't really explain "dangerous". My thinking is that "dangerous" is not all weapons. There's nothing all that dangerous about a modern pistol on my hip unless I'm dangerous (e.g. bent on killing people). Whereas a bucket of nitroglycerin is dangerous all by itself.

Another way something could be dangerous is the scale of the destruction possible. As far as I know a surface-to-air missile is fairly safe and stable, but it's a static danger in that it can be stolen and used to harm a lot of people.

A regular rifle or handgun isn't dangerous in this line of thinking.

A surface-to-air missile obviously wouldn't be good for personal defense, nor would an RPG or a Carl-Gustaf. IMHO, these could be considered "unusual and dangerous."

prometa
10-25-2013, 4:02 PM
Don't think of it as two separate terms. "Dangerous and Unusual" is a single term with a legal history going back to the early 14th Century. If an when such a case makes it before the US Supreme Court, the remaining Heller justices are going to look to the centuries of case law and not to some proposed modern reinvention of the term.

If so, then the CA 4th appeals misapplied Heller in the recent ruling upholding the AK-series ban on the basis an AK (and other assault weapons) are dangerous. Because they were so dangerous, they didn't even need to be unusual.

Essentially, that court interpreted Heller to mean that a ban on "dangerous and unusual" weapons means a ban on dangerous weapons and a ban on unusual weapons.

(I am not familiar with much case history--just pointing this out)

Tincon
10-25-2013, 5:05 PM
If so, then the CA 4th appeals misapplied Heller in the recent ruling upholding the AK-series ban on the basis an AK (and other assault weapons) are dangerous. Because they were so dangerous, they didn't even need to be unusual.

Essentially, that court interpreted Heller to mean that a ban on "dangerous and unusual" weapons means a ban on dangerous weapons and a ban on unusual weapons.

(I am not familiar with much case history--just pointing this out)

No doubt. But I have a feeling you have seen better analysis of the law here than the Personal Injury/Defense lawyer provided in that case. Which is unfortunate more for the defendant in that case, than the state of the law generally, which hasn't really changed.

nicki
10-25-2013, 11:02 PM
The key point here we need to look at is "unusual".

From a 19th century perspective, culturally there were what I would call for lack of a better term, "honorable norms".

Bearing arms openly was the "social norm", but "concealed arms" or "hidden weapons" were considered dishonorable.

Things that wouldn't be recognized as "arms" probably feel into the grouping of "unusual".

Bear in mind that until the 20th century, there was not a criminal database, things like photos, fingerprints and other items to recognize convicted criminals simply didn't exist.

All arms by their design are dangerous, the question really is what constitutes an "unusal arm".

Perhaps we need to consider developing case law to expand what is considered "common" and to narrow what is considered "unusual" in regard to arms.

Nicki

ToldYouSo
10-26-2013, 12:47 PM
The key point here we need to look at is "unusual".
Nicki

No, the key point is to look at the nearly 700 year history of the meaning of the term "dangerous and unusual."

Heller barely touched on the subject. All we know from Heller is that weapons in common use are not "dangerous and unusual" and neither are nunchaku (Maloney v. Rice).

As Scalia pointed out in his Fox News interview, we'll have to wait for future decisions to find out what types of arms are protected under the 2A and which aren't.

Justice Scalia's interview with Fox News is here -> http://youtu.be/g3oxckyicBY

kcbrown
10-26-2013, 1:44 PM
Heller barely touched on the subject. All we know from Heller is that weapons in common use are not "dangerous and unusual" and neither are nunchaku (Maloney v. Rice).


No. All we know from Heller is that weapons which are "not typically possessed by the law abiding citizenry for lawful purposes" are not protected. The only thing that Heller explicitly protected was handguns as a class, and then only from a complete ban on the entire class.

The wording in Heller does not mean that weapons in common use are protected! It says only what is not protected. One cannot infer what is protected from that which is explicitly said to not be protected.

ToldYouSo
10-26-2013, 2:31 PM
No. All we know from Heller is that weapons which are "not typically possessed by the law abiding citizenry for lawful purposes" are not protected. The only thing that Heller explicitly protected was handguns as a class, and then only from a complete ban on the entire class.

The wording in Heller does not mean that weapons in common use are protected! It says only what is not protected. One cannot infer what is protected from that which is explicitly said to not be protected.

The D.C. law did not ban an entire class of weapons (i.e., handguns). Those who had permits were grandfathered and the law exempted antique handguns so long as they were "non-functional." The D.C. laws did not even ban all types of handguns as certain private persons were still theoretically able to obtain permits for machine-guns which included fully automatic handguns.

The Heller court said "The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose."

A ban doesn't have to be complete and without exception to be unconstitutional.

Based on the tone of your posts, it would appear that ignorance is not always bliss.

kcbrown
10-26-2013, 2:54 PM
The D.C. law did not ban an entire class of weapons (i.e., handguns). Those who had permits were grandfathered and the law exempted antique handguns so long as they were "non-functional." The D.C. laws did not even ban all types of handguns as certain private persons were still theoretically able to obtain permits for machine-guns which included fully automatic handguns.

The Heller court said "The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose."

A ban doesn't have to be complete and without exception to be unconstitutional.


Right, and I wasn't making an argument to the contrary. Nonetheless, what the Court concluded is essentially what I said. Whether the regulation in question is literally a complete ban or one that "amounts to" a complete ban, the end result is the same: Heller protects handguns as a class from a complete ban, be the ban a literal one or a de facto one.

The problem here is that it's the only thing we know is protected. Heller was written in such a way as to, aside from that one thing, say only what was not protected. You cannot conclude that something is protected merely because it doesn't qualify as "not protected" per Heller's "not typically possessed" test. To attempt to do that is to engage in the logical fallacy of improper transposition, i.e. to assert that (A -> B) => (!A -> !B), when in fact the correct logical implication is (A -> B) => (!B -> !A).



Based on the tone of your posts, it would appear that ignorance is not always bliss.It is not, that I know of, ignorance from which I speak here. If you believe otherwise, prove it. And show your work.

SKSDan
10-26-2013, 3:01 PM
It sounds too subjective. Everybody has a different opinion on what's "dangerous and unusual":rolleyes:

nick
10-26-2013, 3:15 PM
A surface-to-air missile obviously wouldn't be good for personal defense, nor would an RPG or a Carl-Gustaf. IMHO, these could be considered "unusual and dangerous."

Depends on what and who you're defending from.

ToldYouSo
10-26-2013, 4:38 PM
It sounds too subjective. Everybody has a different opinion on what's "dangerous and unusual":rolleyes:

And the only opinion that counts is that of SCOTUS. As Scalia said in his Fox News interview, that is a question to be decided by a future court.

curtisfong
10-28-2013, 5:54 AM
(A -> B) => (!A -> !B), when in fact the correct logical implication is (A -> B) => (!B -> !A).

..

It is not, that I know of, ignorance from which I speak here. If you believe otherwise, prove it. And show your work.

Speaking of which, I've yet to meet a lawyer who has been able to satisfactorily show they understand the difference between XOR and OR.

fr33domfightr
10-28-2013, 6:37 AM
Depends on what and who you're defending from.

True. But when we talk about personal defense, firearms don't normally cause a lot of collateral damage to your neighnors property or innocent life. Whereas the others mentioned would cause damage which could make one believe they are dangerous and unsual from a personal defense standpoint. Now if you want to launch a campaign against some foreign invader, these might be effective, and typical, yet still dangerous.

Sent from my SPH-D710 using Tapatalk 2

wolfwood
10-28-2013, 4:30 PM
Speaking of which, I've yet to meet a lawyer who has been able to satisfactorily show they understand the difference between XOR and OR.

OR litigation
Inputs AB and RL Output litigation
If AB then litigation
If RL then litigation
If RL and AB then litigation
If neither then no litigation
XOR litigation
Inputs ABRL and KG Output litigation
If ABRL then litigation
If ABRL and KG then no litigation
If KG then litigation
If neither then no litigation

curtisfong
10-29-2013, 1:43 AM
LOL! Thank you wolfwood :)

You win the golden cookie.

I'm very pleased to be proven wrong for once.

wolfwood
10-29-2013, 7:36 PM
One of my degrees is in com sci
I didn't really do anything with it though.