The New York Times has an article out arguing the “dangerous or unusual” canard that antigunners have been pushing for years. It won’t surprise you to learn that the Times’ latest on gun rights is misleading in several ways.
The main argument is that Blackstone originally used “dangerous or unusual” when describing permissible limits on gun rights, not “dangerous and unusual,” but Scalia screwed it up in his Heller opinion and misquoted Blackstone. That’s true, but the problem with making a lot of hay over that is tons of other writers of the era did use “dangerous and unusual the way Scalia did.
Scalia attributed the “and” to the wrong source, but he didn’t invent it out of whole cloth. As the Times article later acknowledges, to its credit, the phrase “dangerous and unusual” predates Blackstone by fifty three years, with William Hawkins using it back in 1716.
Over the next two centuries, some courts used “and,” some used “or,” but they basically meant and referred to the same thing: weapons that were carried mostly by criminals, and typically concealed.
That’s what this article really overlooks; “Dangerous and/or unusual,” regardless of the form used, was never about possession bans. How could it be, no gun or arm was every banned in that way. It was about restrictions on a type of carry. Alan Beck wrote his amicus brief for Viramontes on this topic, and this article in the Reload covers it in short form.
The article says that “dangerous and unusual” is bad because it tests for commonality, as all guns are dangerous. But how would its preferred phrasing, “dangerous or unusual,” even be workable?
All guns are dangerous, would that mean you can ban all guns even if they’re common?
Sidenote: these are the kinds of jabs you don’t get when it’s a constitutional right…other than the Second Amendment.
A ton of civil rights case law comes from activist groups. That and criminal defendants make up most of it, probably. Yet when the NAACP or ACLU sue to effect change, articles about that litigation don’t insert lines like this.
Another cheap shot. The Second Amendment says that the people have the right to keep and bear arms, and it shall not be infringed. That amendment means absolutely nothing at all if the government can ban what is literally the most popular rifle in the country.
The authors of this article have a beef with the Second Amendment itself and they’re weakly trying to hide that as some dispute about its interpretation.
This is also false. The Second Amendment was treated explicitly as an individual right (albeit one that limited only the federal government) in Cruikshank in the 19th century. It was also implicitly treated as an individual right in the Miller case in the 1930s. Plus, in various dicta it was treated as an individual right as well. Further, as I’ve written about extensively, there is overwhelming scholarly commentary pre-1900 that considers the Second Amendment an individual right. Heller merely confirmed this history, and restated it in plain English for the modern era.
It isn’t an important distinction. Whether they used “or” or “and,” the phrase meant the same thing in practice.
As support for their position, the authors cite just one historian before concluding, Saul Cornell. Nothing from other scholars like Dave Kopel, Rob Leider, etc.
Cornell has never once reached any conclusion that would undermine the anti-gun side. Regardless, even if it were “unusually dangerous” as the standard, that would be no different than “dangerous and unusual,” at least for the purposes of bans on guns like AR15s.
Such rifles aren’t “unusually dangerous” because again, they’re the most common rifle in the country. While they’re very lethal weapons, no doubt, their danger is in no way unusual relative to other modern firearms, or at least amongst other modern rifles.
Kostas Moros is Director of Legal Research and Education for the Second Amendment Foundation.