In the Heller decision, Justice Antonin Scalia wrote that one limitation on the right to keep and carry arms is that "the sorts of weapons protected were those 'in common use at the time,'" adding that the Court thinks "that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
The New York Times believes it's uncovered a smoking gun in Scalia's opinion: a single word that, according to the paper and gun control advocates, has distorted Second Amendment jurisprudence for nearly two decades. Scalia's first citation for the phrase "dangerous and unusual" was Sir William Blackstone (though he also cited 11 other sources).
As the Times reports, Blackstone's Commentaries on the Laws of England, published in 1769, actually uses the phrase "dangerous or unusual." And the paper (along with gun control advocates) contends that "or" instead of "and" fundamentally changes things.
The consequences of Justice Scalia’s use of “and” rather than “or” have been profound. Since all guns are dangerous, courts have had to focus instead on determining whether a type of firearm is unusual, often parsing marketing data and consumer surveys to gauge a weapon’s popularity.
A New York Times review found that courts have applied the “dangerous and unusual” test in at least 98 opinions in civil lawsuits that challenged weapons restrictions, most of them bankrolled by activist groups, since the 2008 Heller decision. In 20 of those rulings, the restrictions were overturned.
One example came in 2023. A federal judge in California noted the test’s wording when he struck down the state’s ban on assault weapons. “This court assumes that the Supreme Court does not use language frivolously, that it says what it means and it means what it says,” wrote Judge Roger Benitez.
Scalia didn't come up with the phrase "dangerous and unusual" by himself. As the Times itself notes, that wording was used by an English attorney named William Hawkins in 1716, more than 50 years before Blackstone's commentaries were published. For the next 200 years, courts and scholars used the different phrases interchangeably.
But the New York Times contends that ever since Heller, "judges have overturned gun laws based on that conjunctive."
The test became even more prevalent after the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which folded the “dangerous and unusual” standard into a new process for evaluating the constitutionality of firearms restrictions.
Of the 98 civil cases in which federal and state judges applied the “dangerous and unusual” test, they upheld restrictions on guns and other weapons 68 times. They struck down laws on 20 occasions, and in another seven cases, they invalidated part of the laws. The rest are pending.
So is this some smoking gun that completely upends everything the Supreme Court has said about the right to keep and bear arms?
No. In fact, Justice Clarence Thomas addressed the historical argument behind this supposed bombshell in the Bruen decision. For whatever reason, the Times neglects to inform its readers that the state of New York and several amici brought up the "dangerous or unusual" quote, as did then-Justice Stephen Breyer in his dissent, and that Thomas responded to this argument in the majority opinion.
In particular, respondents’ amici argue that “‘offensive’” arms in the 1600s and 1700s were what Blackstone and others referred to as“‘dangerous or unusual weapons,’” a category that they say included firearms.
Respondents, their amici, and the dissent all misunderstand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself. For instance, the Massachusetts statute proscribed “go[ing] armed Offensively . . . in Fear or Affray” of the people, indicating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s. Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Holt in Sir John Knight’s Case indicated that the English common law did not do so.
Thomas didn't address Scalia's choice of conjunction directly, but he clearly understood the historical argument and found it unpersuasive.
In other words, the Supreme Court wasn't operating in ignorance of Blackstone's actual words. It had already confronted the historical argument built around them.
The Times concludes its piece by quoting Saul Cornell, one of the gun control lobby's favorite academics. In his view, "the best translation of Blackstone’s terminology would be to treat ‘dangerous and unusual’ as a synonym for unusually dangerous.”
And what, exactly, is an "unusually dangerous" arm? We'd probably all agree that a suitcase nuke is unusually dangerous, but is a semi-automatic rifle unusually dangerous compared to a semi-automatic pistol? Is a lever action rifle unusually dangerous compared to a breech-loading rifle? A revolver unusually dangerous compared to a cap and ball pistol?
If the Times and folks like Cornell are hoping the Supreme Court is going to delve deeply into this issue in Viramontes, they better be careful what they wish for. An article published in the Dickinson Law Review at Penn State University last year noted the different phrasing, but argued that both formulations of "dangerous and/or unusual" historically concerned threatening or unjustified conduct with weapons, not the inherent dangerousness or unusual nature of a particular arm.
The authors go on to argue that:
whatever the historical scope of “dangerous and unusual weapons” may be, the term did not contemplate “military” weapons. Indeed, as contemporaneous writings make clear, the Founders sought to guarantee firepower parity between the individual citizen and the government infantryman, so-called “military” arms included.
The Supreme Court may well revisit the meaning of "dangerous and unusual" when it considers the constitutionality of bans on AR-15s and similar semi-automatic rifles. But if the justices do, gun ban supporters shouldn't assume that changing an "and" to an "or" will produce the outcome they're hoping for.
The historical evidence doesn't establish a tradition of banning commonly owned firearms simply because politicians consider them especially dangerous. Instead, it points to restrictions on threatening conduct with weapons. The Supreme Court recognized that distinction in Bruen, and that could prove far more consequential than Scalia's choice of conjunction in Heller.
The Times may have found a mistake in a 2008 Supreme Court opinion, but that's a far cry from finding a constitutional justification for banning America's most popular rifles.
