The "Dangerous & Unusual" Clause In Heller

[Deadric Damodred]

Now us on the pro-gun side believe that "assault weapons" (semi-automatic rifles that look cool, such as the AR-15) fall under the "common usuage" clause in the Heller v D.C. decision. This is because those kinds of rifles are everywhere; they are very common. However, many gun control advocates like to concentrate on the "dangerous & unusual" clause in Heller; so let's focus on that clause.

Here it is:

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. 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.
Pp. 54–56."

If you notice the wording in the above clause, from Heller, it says you can't CARRY "dangerous & unusual" weapons. It doesn't say anything about you not being able to OWN "dangerous & unusual" weapons. That is the wording, it uses "carry" not "own". Reading that, it clearly states that you can't carry around "dangerous & unusual" weapons on your person, but it does not say anything about not being able to own those kinds of weapons. So even if AR-15s did fall under this clause, which they don't, it wouldn't change anything because we can't carry around AR-15s on our person anyway.

Also, the wording says that you can't carry "dangerous AND unusual" weapons. The word to look at here is "AND"; it doesn't say that the weapon you can't carry has to be "dangerous" or "unusual", it has to be both "dangerous" and "unusual". Now I don't believe that there is any way, shape, or form, that you can classify "assault weapons" both. It's hard to say they are "unusual" if they are common. However even if you could classify them as both "dangerous" and "unusual", you still could not ban them under this provision in Heller, because the clause doesn't say anything about it being constitutional to ban them from ownership, only that people can't carry them around. Do you see that? Even if guns like the AR-15 could be classified as "dangerous & unusual" they would still be constitutional to OWN, just not CARRY around.

[msongs]

1. not really. it can also mean dangerous weapons AND unusual weapons, not being both nt

[Deadric Damodred]

2. However...

...even if you could argue that it means "either or", which I think it means it has to be "both", it still doesn't mention anything thing about it being constitutional to ban dangerous weapons or unusual weapons. It only says that it is constitutional to prevent carrying them; which changes nothing because people can't walk around with "assault weapons", as open carry applies to handguns.

[Statistical]

7. Read Miller v. United States

Heller isn't establishing any new criteria.
Poor choice of words but they aren't limiting "unusual & dangerous" to carrying only.
For the last 70 years "unusual & dangerous" has been the codeword for NFA.

i.e. short barelled rifles, sawed off shotguns, fully automatic weapons, grenade launches, and weird stuff like pen guns, briefcase guns, larger than 0.50 rifles, etc.

Heller is simply saying that nothing in Heller prohibits future enforcement of the NFA.

If you are in possession of an unregistered NFA item (as Miller was) don't come crying to the court that Heller protects you. The justices are making very clear it doesn't.

Thats it. Anything else about a new "clause" for "test" of authorized weapons is just gun grabber spin.


Miller v. United States is 70 years old. Nothing new here.

[Deadric Damodred]

9. I wasn't talking about Title 2s.

I'm not sure why you are bringing up Title 2s when I clearly was not talking about Title 2s. I was talking about gun-grabbers trying to put "assault weapons" (notice the quotation marks which clearly indicate I'm talking about what they think the definition means) under "dangerous & unusual". Maybe you are just a purist, and so when anyone says "assault weapon", even with quotations, you immidiately start talking about NFA weapons. That's fine if you want to do that, but it's a waste of your time. That is the one battle we lost. We know what the definition is suppost to mean, but in reality it now means semi-automatic......and they use the word semi-automatic and the word "assault weapon" interchangably. There's no way in the depths of hell we are ever going to get it to go back to just meaning an automatic weapon.

The Brady's won the definition battle, and you can't reverse the damage. Especially since the media uses the term; once the media gets a hold of a term they like, they hold on to it like grim death. Do you remember when Chris Benoit killed his family? It was proven that it wasn't "roid rage", but the media got a hold of that term, liked the sound of it, and refused to stop saying it. I remember watching a segment where the news lady got owned by an expert telling her why there was no proof it was "roid rage". I mean he completely owned her. She agreed with him, sent him on his way, and then as soon as that little segment was over, she went right back into talking about Benoit and his "roid rage". The media does not stop, ever, when they find a term they like the sound of. That's the way it is with "assault weapons"; they like the sound of it, and they are never going to stop using it. So you might as well get used to it. I don't like it either, but that's just the way it is. The anti-gunners have to deal with all the victories we are having and the fact that Congress is under the control of the pro-gun side, but we have to deal with the fact that "assault weapon" includes semi-automatic rifles that look cool.

[Statistical]

10. Once again the courts have only had one definition of dangerous and unusual.

Dangerous & Unusual = NFA weapons

Not sure why you threw assault weapons in there?
"assault weapons" have nothing to do with NFA.
"assault weapons" have always been semi-auto.
There are no automatic assault weapons. There never have and there never will be.


NFA regulates automatic weapons along with outher "dangerous & unusual" items.

Miller was very clear on this point and Heller was simply referencing Miller.
There is no new "dangerous & unusual clause" in Heller. They were simply pointing out the regulations on dangerous & unusual weapons aka Miller aka NFA items still stand. It is that simple.

You trying to expand the definition plays right into Brady game.
I don't give a flying crap what Brady thinks is dangerous.

The term "dangerous & unusual" has been used in dozens of court cases in the past and in every single one (going back 70 years to Miller) it means NFA items. Period. Nothing changed in Heller.

If Brady had their way "dangerous & unusual" would be all firearms but that isn't what it means and courts have shown no indication of moving that line. Until they do any hysteria over a legally accepted term is just that.

Dangerous & Unusual = NFA weapons

[Deadric Damodred]

11. That's fine by me.

That makes it easier if it has already been well established that "dangerous & unusual" means NFA. If that's the way it is, then my OP is unnecessary in using to prevent them from trying to put the most common rifles in the US under the definition. However, if in Miller the wording is "carry", I'm suprised that hasn't been challenged yet; as the definition of "carry" clearly is not the same definition of "own".

[Statistical]

12. In that paragraph Heller wasn't establishing new case law....

It was simply referencing existing case law aka United States v Miller.

The language doesn't need to be exact because that paragraph has no standing.
I agree it should be clearer but it is written and it isn't going to change.

No lawyer is going to use an omission of the word own to indicate it means you can own when Miller clearly indicates you can't own NFA items without them being registered and the NFA doesn't violate the 2nd ammendment.

Bad for us is the fact that Miller had a sawed off shotgun.

Per Miller:

The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U.S. 506, and Narcotic Act cases. P. 177.
2. Not violative of the Second Amendment of the Federal Constitution. P. 178.

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

I always wonder what would have happened if Miller had instead been caught with say an assault rifle. A weapon that clearly has a purpose in a well regulated militia. It is possible the courts would have scrapped the NFA.



An omission in Heller of something explained in Miller doesn't equal a reversal of the courts.
Now if it specifically said you can own but not carry that would reverse Miller but that isn't what happened here (it would also have been outside the score of the case).
Likewise if Miller didn't exist the statement just carry (no mention of own) would likely be grounds for a future suit in which Heller is referenced as saying "carry" but not "own".

Since regulations on NFA items were found Constitutional in Miller that stands until directly overturned in a future case.

[Deadric Damodred]

13. Alright, that makes sense.

[Euromutt]

4. Is there such a thing as a "non-dangerous weapon"?

It strikes me that any weapon is, by definition, dangerous, in that it can be used to inflict bodily harm upon another. If it could not be used for that purpose, it wouldn't be a weapon. So "dangerous weapon" is something of a tautology.

Unless, that is, by "dangerous" we mean "more dangerous (in some way) than a semi-automatic firearm." One possible example is area-effect weapons, like hand grenades or artillery, as they are more indiscriminate than "point target" weapons like small arms (even though an individual grenade fragment is not more lethal than many bullets). But that's not how legislation tends to use the term "dangerous weapon." Under Washington state law, for example, the term "dangerous weapon" explicitly comprises spring-operated switchblades, gravity knives, brass (or other metal) knuckles, "slung shot," "sand clubs," double-edged knives, nunchakus and throwing stars, none of which are inherently more lethal or indiscriminate than a firearm. They are, however, more unusual than firearms, and thus we arrive back at the interpretation that "dangerous and unusual" does indeed mean "both dangerous and unusual."

[Statistical]

8. That is exactly what it means.

Essentially weapons ALREADY tightly regulated under the NFA registry.

http://en.wikipedia.org/wiki/National_Firearms_Act

The Act defines a number of categories of regulated weapons. These weapons are collectively known as "Title II" weapons and include the following:

1. Machine guns - this includes any firearm which can fire more than 1 cartridge per trigger pull. Both continuous fully-automatic fire and "burst fire" (ie, weapons with a 3-round burst feature) are considered machine gun features.
2. Short barreled rifles (SBRs) - this category includes any weapon with a buttstock and either a rifled barrel under 16" long or an overall length under 26". The overall length is measured with any folding or collapsing stocks in the extended position. The category also includes weapons which came from the factory with a buttstock that was later removed by a third party.
3. Short barreled shotguns (SBSs) - this category is defined similarly to SBRs, but the length limit for the barrel is 18" instead of 16", and the barrel must be a smoothbore. The minimum overall length limit remains 26".
4. Suppressors - this includes any portable device designed to muffle or disguise the report of a portable firearm. This category does not include non-portable devices, such as sound traps used by gunsmiths in their shops which are large and usually bolted to the floor.
5. Destructive Devices (DDs) - there are two broad classes of destructive devices. The first class contains devices such as grenades, bombs, poison gas weapons, etc. The second class contains any non-sporting firearm with a bore over 0.50" (many firearms with bores over 0.50", such as 12-gauge shotguns, which are exempted from the law because they have been determined to have a legitimate sporting use).
6. Any Other Weapons (AOWs) - this is a broad "catch-all" category used to regulate any number of weapons which the ATF deems deserving of registration and taxation. Examples include smooth-bore pistols, pen guns and cane guns, short-barreled weapons with both rifled and smooth bores, etc.

[Hoopla Phil]

3. No, the Brady Bunch is trying to "spin" this clause. It means nothing

more than the feds can regulate hand grenades (dangerous) and odd weapons like a "pen" gun (unusual). Of course these are already regulated under the NFA and I think SCOTUS was simply recognizing this.

[Statistical]

6. Correct.

The "unusual" & "dangerous" language is not from Heller.

It is from United States v. Miller.
In Miller the plaintiff had a sawed off shotgun which is technically a short barelled weapon and a restricted item under the NFA.

The plaintiff claimed the NFA violated his 2nd amendment weapon to keep & bear arms.

The court stated a sawed off shotgun or other unusual & dangerous weapon is not an "arm" under the def of 2nd ammendment.
They also stated nothing prevents the Federal govt from regulating such unsual & dangerous weapons.

In Heller they are simply recognizing that this fact exists.

Essentially Heller is saying nothing in this opinion should indicate that the NFA is unconstitutional going forward.

That is it.

Heller establishes no "test" for unusual & dangerous. That was done 70 YEARS ago in Miller.

The only "test" in Heller is:
1) does weapon have a legitimate legal use?
2) is the weapon in common usage?

AR-15 meets both criteria. I am confident that SCOTUS would find it a protected class of weapon in a future case.

[Indy Lurker]

5. In common use

Heller seems to protect weapons that are "in common use"

Since AR-15 is so widely owned and used, it would be hard to classify it as anything other than "in common use"



Dictionary.com

Definition of common:
4. widespread; general; ordinary: (common knowledge)
5. of frequent occurrence; usual; familiar: (a common event; a common mistake)