Dangerous and Unusual: How Heller’s Ahistorical Assumption Violates the Founders’ Original Intent

When the U.S. Supreme Court ended its generational silence on the Second Amendment in District of Columbia v. Heller, the Court held that “a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” is “invalid.” In so holding, the Court suggested that the Constitution protects only those weapons “in common use at the time,” a limitation thought to be “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” The Court defined none of these terms then, and it has not since. Over a decade of constitutional infidelity ensued. Following Heller’s minimal discussion of the scope of protected “Arms,” lower courts have posited that so-called “dangerous and unusual weapons” may be banned based on perceived dangerousness or rarity—an approach that maligns politically controversial firearms as being too “militaristic” for “civilians” and absolves the government of its historical burden under New York State Rifle & Pistol Ass’n v. Bruen. These thinly veiled interest-balancing opinions depart from constitutional text and historical understanding. This Article seeks to correct the historical record and articulate a more principled approach to interpreting the Second Amendment. First, in keeping with Heller, if a weapon is “bearable,” then the Constitution presumptively protects it, and proof of “common use” is unnecessary to proceed to historical analysis. Second, the Founders never regulated mere ownership or possession of “dangerous and unusual weapons.” Instead, Founding-Era regulations only proscribed offensive conduct with these weapons when carried openly in public. These regulations therefore cannot support limitations on ownership or possession of bearable weapons within the home or without public disturbance, as such reasoning would contravene Bruen’s analogical guidance. Third, historical evidence suggests that “dangerous and/or unusual” was a legal term of art describing the unjustified and disproportionate use of force, not the dangerousness or rarity of weapons. And fourth, 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.