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And this will be important later.

From the Heller decision:

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.

I’m not a lawyer so take this for what it’s worth. The definition of dangerous and unusual weapons, and the carrying of, may come up if certain gun control laws are passed. “Dangerous” is not very useful or descriptive. Is gun, is not safe. So, meh. However, on to unusual. What is unusual? I doubt that the most popular rifle in America is unusual. And I doubt most common handguns are unusual.

So, what exactly is? I suppose that, since the 1986 assault rifle ban (yeah, they’re already banned) a machine gun would be unusual. What else?

25 Responses to “Unusual”

  1. wizardpc Says:

    Every time George Kellgren comes up with a design, ban it. It would be unusual and not in common use.

    Same for every other manufacturer. We’d be forever stuck in 2013 for civilian armament.

  2. Drifter Says:

    The antis love to quote the part in Scalia’s opinion that says it’s OK to ban M-16s. I wonder if Scalia meant actual M-16s, a la the Hughes Amendment or if he meant ARs. The later would definitely clash with “in common” use.

  3. matt Says:

    Many AOWs (pen guns, cell-phone guns, and other weird stuff) are probably still bannable.

  4. TriggerFinger Says:

    I’m not the matt who suggested it means pen guns, cell phone guns, and the like, but I agree that’s mostly what “unusual” would refer to.

    It also suggest that there is a window of time during which a new firearm design can be banned. That is, if someone comes up with a new design, you can't wait 10 years and then ban it; you have to ban it before it enters common use. That would protect existing firearms and prevent arbitrary bans and sweeping confiscations, while still allowing for restrictions on new weapons.

    Whether the courts will allow that bit of circular logic to stand is an interesting question. "We can ban it because it's not in common use because we banned it."

    I'd like to get some precedent before going after the 1986 machine-gun ban on those grounds, though.

  5. esq Says:

    There should be a comma following the word time and then the statement would be clear.

  6. fuzzy Says:

    Weapons with horrible design or that cannot be controlled (eg poor working order) seem appropriate for the word “dangerous.” I’d say there’s a legitimate ground for prohibiting public carrying of a (specific) gun that, for instance, regularly discharges when the safety is moved from safe-> fire. This would be especially true if that’s required to unload it. Another example I’d think would be a gun that goes off from a minor jolt while holstered (say, while the bearer is stepping off a curb). Gun owners and manufacturers tend to not be too keen on these kinds of things, but I’d say they legitimately make a firearm “dangerous”.

  7. Critter Says:



    Very small rocks.

  8. Phelps Says:

    Anything artfully concealed as something else (like a shoe gun or something). The only other thing that comes to mind are large wildcat calibers, like .50 desert eagles. (Although it could argue both ways on its media exposure. All the exposure means it is not unusual because everyone knows it! No. It’s unusual because everyone features it as exotic in their films!)

  9. Chas Says:

    Miller was bullshit. Weapons are supposed to be dangerous, and how usual or unusual they are is a distinction without a difference.
    The Supreme Douchebags took an incredibly unconscionable 219 years to decide that the 2nd Amendment is an individual right. That is an extremely long time for any institution to have its ignorant head up its ignorant ass. How many Americans suffered from that ignorance over the centuries? How many died as a result of it? One has no business expecting anything good from a bunch of douchebags like that – they are a disgraced institution with less credibility than none. Can them.

  10. Lyle Says:

    Machineguns are in common use by military, and AS SUCH they are protected by the second amendment. Actually, if it is or can be considered an “arm” it is protected by the second amendment (the second amendment doesn’t have any qualifiers, exceptions or modifiers in it).

    One might be able to make the case that strategic weapons like nukes and other WMDs are not, but even then you may be running afoul of the balance-of-power concept embodied in the second amendment.

    In the American Revolution there were private owned war ships, were their not? Those would be analogs of our modern aircraft carriers and destroyers.

    And don’t give me court precedent bullshit. If precedent defines (redefines) our rights, it means that any and all rights degrade and evaporate over time. No thanks. I’ll stick to original principles.

  11. fuzzy Says:

    Having a business in good working order design, manufacture, and distribute an item for the consumption by an average citizen seems good indication that something is in “common use”. Bolt action firearms, for instance, have been made and distributed for so many years that without regard to who makes any particular one (even a custom gunsmith) them there is a presumption that the type is one that is in common use. On the other hand, a Billinghurst-Requa Volley Gun is most likely not in common use. Depending on how you’re reading Miller “citizen” could be construed as “citizen or soldier”.

  12. W Says:

    If we (society writ large) interpreted the 2nd Amend like we interpret the others, we would require/demand that our politicians issue every head-of-household an M-16, M240B, M-249, or other individual weapons, plus a monthly ammo stipend….

    I’m looking at you ACLU!

    Ah, well, a man can dream.

    As I read my own comments I’m reminded of the old refrain:
    “If frogs had wings, they wouldn’t bump their ass when they hopped.”


  13. comatus Says:

    “Five thousand balloons could not cost more than five ships of the line; and where is the prince who can afford so to cover his country with troops for its defense as that 10,000 men descending from the clouds might not in many places do an infinite deal of mischief before a force could be brought together to repel them?”

    –Franklin proving that Miller covers hot air.
    Wait until they get a load of Oliver Evans.

  14. Patrick Says:

    The Maryland Attorney General has in the past classified any “regulated” firearm in their state a unusual. That would include ARs even though they were (are) permissible.

    So the definition in some states would differ from others. Of course, McDonald opened the door to challenging these on a more national scale. Heller set the bar on common firearms pretty high by saying DC could not ban auto-loading pistols, because they were common everywhere else in the nation.

    I think the fight is coming. New York might be challenged, and so to would Maryland if they pass their proposed laws. So too elsewhere.

    Not looking forward to that fight, to be honest.

  15. Spade Says:

    Latest Heller II case had a lower court agree that AR-15s are in common usage along with 30 round mags. Then they said that DC could ban them anyway because they didn’t read heller 1 I guess.

  16. anon Says:

    Nothing unusual? So, no ‘ducks foot’ pistols then?
    How about if we look to the movies for unusual weapons?
    “Lock Stock and Two Smoking Barrels”…I guess 12” black rubber cocks are right out.
    “A Clockwork Orange”… No monstrous Penis Sculptures.
    Whatever that thing was in “No Country for Old Men” nope can’t carry one of those.
    “Chronicles of Riddick” means no teacups!

  17. mikee Says:

    Uncle was kind enough to post a comment I made a while back regarding the protests that can be made, that have been made by gun grabbers against every firearm from a single shot derringer to a Barrett .50BMG rifle.

    When political and legal language has been perverted such that a “right” is now the description of a government power, as in the phrase “the right for police to arrest you,” there is absolutely no hope that any firearm will withstand the protest that it is “dangerous and unusual.” And the idea that “in common use” will even be mentioned is zero.

    I also note that these phrases are essentially dicta, not the substantive finding of the very narrowly tailored Heller decision, and as such will most likely have no real bearing on future court decisions, just as Miller’s “military use” has been ingnored.

  18. Snackeater Says:

    It’s my recollection that SCOTUS ruled against the defense in US v Miller because the short-barreled shotgun the moonshiners were caught with was not a type of military-style weapon that would be commonly used by an organized militia. That and the fact that the defense didn’t even show up for the trial.

  19. Alan Says:

    LEGAL machine guns are not common. Illegal ones may or may not fit the definition of common but it seems circular to try to say that something that is illegal isn’t common.

    As someone mentioned before, they sure are common in the army and civilian police and for 2nd Amendment purposes that is good enough.

  20. Matthew Carberry Says:

    NOte all below involves the use of reason by people of intellectual integrity…

    I’m pretty sure that mere cosmetics are not part of the “uncommonness” of a given gun.

    So, Brand X’s new semi-auto is all carbon fiber and looks like a phaser rifle?

    How does it -function-? Gas piston semi-auto? There’s a dozen of those on the market, have been for decades, not uncommon.

    Now an actual phaser rifle might fall under uncommon and dangerous because it is not like anything currently available and probably has capabilities on the target’s end that exceed cartridge firearms in important ways.

  21. Matthew Carberry Says:

    As for the tanks and aircraft carrier, etc, arguments, no need to get into the weeds with folks who bring those up.

    Price, maintenance and fuel costs are upfront barriers. Traffic laws already cover what makes a vehicle street legal and what is required to drive a tracked vehicle on public roads. Zoning covers proper safe storage of ordnance and what ranges are legal to shoot something with that range and terminal effects.

    Jets are expensive to buy and maintain, if you can find a military one for sale. You need lots of hours to become a pilot. They are expensive to store, expensive to fuel, ordnance is expensive, and proper storage requirements for ordnance that can legitimately take out an entire house if improperly stored are not “infringements.”

    Aircraft carriers? Can you imagine the slip fees? Crew wages? Paying for the tugs to take it to sea? Fuel? Jets or copters and pilots? Finding airspace to realy use those birds? Ordnance storage and use requirements (again)?

    Nukes? Requiring the same minimum storage and maintenance standards of private citizens as the Federal government is hardly an “infringement” on ownership, again after you legally buy the reactive material if you can find it for sale (national import and export controls are explicitly Constitutional and not infringements).

    Anyway, practical considerations then and now made owning, and maintaining, and crewing, a “man o’ war” an economic impossibility for all but the wealthiest and any number of perfectly valid regulations would take care of the rest of the “problems” of allowing private ownership.

    Don’t argue on “absolute right”, your opponent won’t agree and Ma and Pa Kettle aren’t impressed. Instead dismiss it as a nonsensical distraction from a serious conversation about realistic firearms for normal people. The anti will look silly and you will look sane and reasonable in the eyes of the Kettles.

  22. Kristophr Says:

    The SCOTUS was mistaken.

    The M-4’s prevalence in the military makes it extremely not unusual, and indicates that we have a basic right to own one.

  23. anon Says:

    @Snackeater: Actually, The Miller decision hinged on the fact that ‘no evidence was presented’ that the short barreled shotgun was useful to the militia… Given that the defense didn’t show up, it was a cowards way out for the ‘justices’. They could decide for the government, even though the decision was obviously wrong. If the defense had shown up, all they would have had to do is point out that short barreled shotguns were used to clear trenches in the then relatively recent WWI. It’s useful to note that the army still to this day uses short barreled shotguns for breaching entrances and clearing buildings. And yet they are banned? It’s called the Dept of “Just-Us” for a reason…

  24. Wolfman Says:

    It occurs to me that a lot of this is, and will remain, subjective. “Common use” could easily be defined by the designed purpose of the arm itself, which makes context critical (and, again, subjective). One could easily believe that a handgun is acceptable under common use as a defensive arm, while a SAW or M60 is not. I think this would be the direction that many antis would like to see the decision go- its a short step to taking the carbine out of the equation. We can point to just as many situations where US police and military use a carbine in defensive roles (such as perimeter security). The soft definition would remain ‘was the weapon used appropriate to the situation?’ This would leave our handguns viable for moving around during the day, but limit carbines to private use. All of this would remain in the lower courts- I don’t see the SCOTUS picking up a case that deals with minute specifics.

  25. Disavowed With Honor Says:

    It also likely means that i could not carry a suppressed pistol, even though I would only do so for the consideration for someone else’s (and my) audible comfort.

    Those damn dangerous cans! They reduce sound to protect your hearing and that can’t be good, because politicians don’t want you to hear what you are saying, because then you might not submit to it.

    Disavowed With Honor

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