Defining Dangerous and Unusual, Part II

[Tennessee Gentleman]

Originally Posted by maestro pistolero

That might be fine, if it's you or me deciding what's appropriate and reasonable, but if it's Paul Helmke, then we are in trouble. I think the legal definition has to be less subject to interpretation than that, or we will simply never get off the merry go round.

Agree that neither Paul Helmke nor I should decide and that is why I would draw that line at weapons in common use by civilians for self defense. That way the antis would have to prove it is not in common use and since they could not would give us as strong a position as I could envision. That brght line would start IMO at FA. Virtually anything under that should survive the "dangerous and unusual" test.

[Al Norris]

Originally Posted by T.G.

Agree that neither Paul Helmke nor I should decide and that is why I would draw that line at weapons in common use by civilians for self defense.

In a word, No.

To define it thus, would leave all firearms used for sport (hunting, competition or just plain fun plinking) out in the cold.

Common firearms used by civilians for self defense is one set of firearms. Common firearms used by civilians for any sporting purpose is a another set. Then there is the set of firearms that were once in common use by civilians. There is the set of firearms that were not in common use by civilians but are of historical value.

If the purpose is to protect what we now have, does anyone see the difficulty of defining "common use" and joining it to "dangerous and unusual?"

[johnwilliamson062]

no inanimate object can be inherently dangerous.
Any item severely restricted to the public will be rare.
A handgun is only as discriminating as its operator.
I could put a blind fold on and walk into a kindergarten class and just start swinging, would that be discriminating?
If I put a bomb in your car and blow it up when you are driving alone on a country road, is that discriminating.

The person using the tool is responsible, not the tool.

[Wildalaska]

Ithaca Auto/Burglar
Pistol Shotguns
Pen Guns
Palm Squeezers
Knuckle Dusters

WildimdangerousandunusualAlaska TM

[maestro pistolero]

Agree that neither Paul Helmke nor I should decide and that is why I would draw that line at weapons in common use by civilians for self defense.

How about this:

. . . in common use by civilians for self defense or any other lawful purpose, including, but not limited to, target practice, competition, recreation, entertainment, etc., etc.

[maestro pistolero]

no inanimate object can be inherently dangerous.
Any item severely restricted to the public will be rare.
A handgun is only as discriminating as its operator.
I could put a blind fold on and walk into a kindergarten class and just start swinging, would that be discriminating?
If I put a bomb in your car and blow it up when you are driving alone on a country road, is that discriminating.

The person using the tool is responsible, not the tool.

John, we know all that, you're missing the point. Because Heller mentioned that prohibitions on "dangerous and unusual weapons" are permissible, this thread is about proposing a legal definition of what "dangerous and unusual" means. Please re-read the original post from this thread.
THX

[Glenn E. Meyer]

A chunk of Plutonium is inherently dangerous. It is inanimate. Go sit on it.


John, you need to think beyond cliches.

The purpose of the firearm is under discussion. That it itself is inanimate is irrelevant as I pointed out before.

[johnwilliamson062]

If select fire AR-15s(M16s if you prefer) were available at the prices they would be if unregulated, they would be very common. My understanding is production cost would be insignificantly more than a semi-auto. I would buy one, most of the guys who shoot would also. I can pretty much guarantee some sort of weekly competitive event would start up at my hunting club. Likely most other clubs ad associations also.

If you stopped new production on single shot bolt action rifles and barrels suitable for high precision target shooting(define by some maximum bullet to barrel OD ratio) for 23 years and put all sorts of restrictions on their transfer and ownership they would become relatively unusual.

A chunk of Plutonium is inherently dangerous. It is inanimate. Go sit on it.

Can you give an example of how a chunk of REFINED Plutonium could end up under my butt without someone taking some VERY INTENTIONAL ACTION(s)? See, even in your extreme example someone has to show neglect or malice before a dangerous situation is created.


What will pass through the legislature or even the courts? Commonly used for hunting or personal self defense at the present time. I do not think you will be able to get competition included as you can compete with almost any weapon. I think for it to pass it would have to be slightly more restrictive than things are currently and we would all be better off letting the issue sit in its ambiguous state.

[Bartholomew Roberts]

Actually, should we even be focusing on defining the "dangerous and unusual" part? Looking at the majority opinion (p.55), the actual language is:

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual" weapons."

I see a couple of points here. One is that it seems to me that the test is "in common use at the time" and not whether the weapon was "dangerous and unusual." Two, I notice that while the first sentence refers to the right to keep and carry arms, the second talks only about the prohibition on carrying dangerous or unusual arms.

There is another sentence worth reading: "It may be objected that if weapons that are most useful in military service - M16 rifles and the like, may be banned, then the Second Amendment right is completely detached from the prefatory clause." To me, it seems as if Scalia contemplates the M16 as the type of weapon that may be banned (as not in common use at the time). As the dissent points out, this doesn't make much logical sense (but does solve the thorny problem of not invalidating a whole host of federal firearms laws in one swoop while still protecting an individual right).

If we do focus on the "dangerous and unusual" language, then what we really need to define is "unusual." All weapons are by definition dangerous, albeit some more than others. So it seems we are focusing on "unusual" or "not in common use at the time" as the test once again.

[Evan Thomas]

Good points, BR.

Yes, focusing on what counts as "unusual" seems a more promising way to go. As I wrote in Part I of this discussion, "...pump shotguns must be about as 'unusual' as F150's..."

As Glenn pointed out above, "dangerous" is very much in the eye of the beholder -- but "unusual" could be defined in some objective, i.e. quantitative, way, at least in principle. (Care would be needed in the definition, however, lest it effectively prohibit innovations in design.)

While it's possible to argue, qua Yellowfin, that the standard of "in common use at the time" may be "unfairly" influenced by previous restrictions, as in those on FA weapons, I'm not sure this is a useful tactic. I agree with those who've suggested that FA is a "bright line" (where did that expression come from, anyway?) that's not worth pushing at for any number of reasons, including both actual and perceived dangerousness.

[Tennessee Gentleman]

Originally Posted by Antipitas

To define it thus, would leave all firearms used for sport (hunting, competition or just plain fun plinking) out in the cold.

Originally Posted by maestro pistolero

. . . in common use by civilians for self defense or any other lawful purpose, including, but not limited to, target practice, competition, recreation, entertainment, etc., etc.

I stand by what I meant to say.

Originally Posted by johnwilliamson062

no inanimate object can be inherently dangerous.

A firearm which is a weapon is by definition inherently dangerous. I agree it does not have a will of it's own but it is dangerous nonetheless. These arguments get us nowhere in the marketplace of ideas.

[maestro pistolero]

. . . in common use by civilians for self defense or any other lawful purpose, including, but not limited to, target practice, competition, recreation, entertainment, etc., etc.

It all of a sudden occurred to me that using the term self defense could be interpreted to exclude defense of another innocent victim. Perhaps the language should reflect that purpose, as well.

[Evan Thomas]

It all of a sudden occurred to me that using the term self defense could be interpreted to exclude defense of another innocent victim.

Yes, it could be, but for the purpose of this discussion, I don't think it matters, as the types of weapon appropriate for self defense would also work just fine to defend someone else... Unless you think that a weapon's effective range would somehow be a variable here?

[maestro pistolero]

Yes, it could be, but for the purpose of this discussion, I don't think it matters, as the types of weapon appropriate for self defense would also work just fine to defend someone else... Unless you think that a weapon's effective range would somehow be a variable here?

No, you're right, there would be no difference in the choice of weapon.

[dr holliday]

I understand the desire to understand "dangerous and unusual".

But Heller is wrong.

The 2nd says "arms", not just FIREarms.

And the militia component of the 2nd is perhaps more important than the self-defense aspect that Heller focused upon...
.

[USAFNoDak]

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."

That emboldened phrase may be a hole in the line which can be exploited at some future point in time. It says nothing about "possessing, keeping, or owning" dangerous and unusual weapons. For now, however, we have to live with the Heller decision. As far as getting more of our rights protected, it's sort of like the Wicked Witch of the West trying to figure out how to get the ruby slippers away from Dorothy. She knew that she couldn't get the slippers from Dorothy as long as Dorothy was alive. But that wasn't what concerned her. It was how to do it (as in killing Dorothy). She said, "These things must be done delicately".

We must move with determination but with caution as well. We don't want to turn the apple cart over before we've pushed it all the way up the hill. Heller was not meant to be the last minute heroic shot that won the game for us. We've been in the game since 1934 and there's more game to be played. Heller was a victory in that it put a virtual bullet in the head of the group which used to argue for the collective rights theory. We can now move on to other targets, goals, and objectives. But Heller is not a doomsday weapon for us. It was a strategic win, and may help us to more victories, but it didn't end the battle. We must continue to fight to protect more of our RKBA. With states such as California, New Jersey, Illinois, etc, and many federal laws which infringe upon our rights, we've got plenty to do.

[Tennessee Gentleman]

Originally Posted by dr holliday

But Heller is wrong. The 2nd says "arms", not just FIREarms. And the militia component of the 2nd is perhaps more important than the self-defense aspect that Heller focused upon...

I think all the courts today will rule that arms mean firearms. The militia that the 2A speaks of, is today, the National Guard. Heller was right in that it decoupled the RKBA from service in the militia. Linking them together would allow unlimited regulation to include bans on our private ownership of firearms.

Heller fixed that.