Defining Dangerous and Unusual, Part II

[maestro pistolero]

With advance permission from Antipitas, I would like to re-open this thread with a caveat: The comments must be specifically related to criteria under which weapons should be deemed dangerous, and unusual.

There were some excellent responses in the first thread, and some off topic commentary that led to thread lock. Frankly, I share some of the blame with an insightful comment about making potato chips with a tater gun. It would be particularly interesting for any lurking legal eagles to jump on board here. Is the the simple argument I make here compelling, logical, and arguable in court?

For convenient reference, here is the opening salvo:

The phrase 'dangerous and unusual weapons' ought to be generally interpreted as weapons that rise above the efficacy of small arms. Dangerous and unusual means grenades, mortars, RPG's. etc. on up the dangerous scale.

Here's why I think this to be true.

Dangerous and unusual cannot generally include small arms, because in reality, any one of them is nearly as dangerous as the next. A head shot from any small arm, in any caliber, is predictably lethal. Hit a major artery with a .22 long rifle and it's a life threatening matter. For the distinction 'dangerous and unusual weapons' to be meaningful, the threshold for dangerous and unusual must rise significantly above the basic level of danger present in any small arm.

We don't need to classify our handguns, pistols, and shotguns beyond the category of small arms. One possible exception could be F/A, although I'm not convinced that F/A small arms ought not be covered under some set of criteria. In other words allowable, but with a higher degree of training, etc.

Perhaps we ought to be prepared to acknowledge, that F/A could rise to the top of the permissible list in terms of performance, and may require a higher level of scrutiny as to who is not disqualified from keeping them, how they are stored, what level of training and background check may be required. But banning F/A totally, so that no-one can have them under ANY circumstances, falls outside of 2A, because it eliminates their use for the security purpose of the amendment. (Which Nordyke re-invigorated in dicta)

Terrorists on our soil would almost certainly not concern themselves with an F/A ban, putting the citizenry at a disadvantage. The purpose and effectiveness of 2A, in that scenario, would be undermined by an outright F/A ban.

[poptime]

I wonder if part of the equation should be whether the weapon is indiscriminate. A handgun or rifle is aimed at a particular target. A bomb destroys everything in a given area. A machine gun sort of straddles the line.
So a "dangerous" weapon would be one that does not discriminate what it destroys.

[alloy]

Isn't that an assumption that they didn't mean deadly and homemade?

As in zip gun, chainsaw, or the cattle rig Chagur used in No Country For Old Men? Oddball stuff or with no production that still fits the criteria of small arms but is not exactly definable as a firearm?

Just askin...

[Dingoboyx]

The old baseball bat is a pretty good weapon? Nails or screws protruding from the 'hitting' end would be very lethal

Along with nearly every Kitchen utensil and tool found in your shed.... all would be concidered weapons and could be made/used lethal(ly)

[publius42]

So a "dangerous" weapon would be one that does not discriminate what it destroys.

That's probably as reasonable a definition as we will see.

[Dingoboyx]

The most dangerous ammo modification I can think of, I saw on youtube some guys drilled projectiles and soldered in the points of concrete nails and made the projectiles like armour peircing?

[alloy]

I hope this is like what you mean?

Kinda, yeah. i'm no legal eagle but don't Grenades, RPGs etc fall into some well defined category such as explosive and/or incendiary devices and not a catch-all like dangerous and unusual which seems(to me) to be an attempt to define the undefinable/unforseeable...for purposes of prosecution/regulation based on intent/usage.

No big matter, and very sorry for the thread jack, but it helps my pea-noggin to follow the reasoning of the thread later...when i understand the premise, sooner. Which is something i was missing from the other thread....don't these, already have a distinct category which is not typically referred to as "dangerous and unusual?"

grenades, mortars, RPG's

[publius42]

I think that tank at Tiananmen Square was a dangerous and unusual thing to point at a civilian. That civilian looked to me like he needed something that was effective against tanks to set things right again.

[Dragon55]

""So a "dangerous" weapon would be one that does not discriminate what it destroys.""



I like this definition as well. If you can point it at 1 target then it's not 'dangerous and unusual. This would apply to full auto as well I guess.

[buzz_knox]

So a "dangerous" weapon would be one that does not discriminate what it destroys.

That's probably as reasonable a definition as we will see.

A bullet doesn't discriminate what it destroys, so that definition makes it a dangerous weapon.

If you are trying to exclude area effect weapons, that definition doesn't work because it applies to everything except humans themselves.

How about "a weapon which cannot be used in its normal manner without posing undue risk of collateral damage?"

[publius42]

We're all focused on the word "dangerous" but I think the word "unusual" might come to cause more trouble.

[Glenn E. Meyer]

Since I've spent a good deal of time studying the psychological impact of weapons, here's my take.

1. I'll draw the bright line at fully auto and weapons that fire explosive rounds for argument's sake.

2. The argument revolves around priming aggression. We know that more extreme the appearance of the weapon, the more it primes negative ideation.

3. The argument also revolves around differential risk. Most self-defense situations can be handled with stuff up to and including the AR-15, Aks, etc. (Although we know there is opposition to those).

4. The risk of foreign invasion by organized armed forces is nil. Most folks don't perceive a high risk of massive organized criminal or terrorist attacks that couldn't handled with semiauto long arms by the citizen - even in North Hollywood, the issue wasn't FA but rifle rounds for the vests. Thus, arguing for FA and explosive arms for invasion or massive battles by civilians doesn't impress.

5. People fear that if such weapons get easily into private hands (yes, you can get them now but it is hard and we haven't seen it much as compared to the normal criminal guns). They will attractive to rampage killers like Cho, Columbine, etc. The carnage there would be more likely than the prevention of invasion.

6. Would the guns get to nutso hands - sure, they would. A recent study shows that while murders may be dropping - the proportion of 22 and 38 shootings is on the decline and the 9mm/380/45 shootings are on the upswing - as killers follow the covers of Guns and Ammo and other journals.

Thus, my view is that the perceived view of the enhanced danger of FA and military guns due to their appearance and attraction to nuts would next to impossible to overcome in the general public. I think one might be able to get controlled new FA with a similar system to some - but not likely.

[Tennessee Gentleman]

Glenn,
Good points. I would throw into the mix the operational design of the firearm. That is where I see the issue with FA. They are designed for the purely military uses of fire supression and area denial.

Fire Suppression, as I have seen discussed in other TFL threads is really a bad idea for civilian SD since we are financially and criminally liable for each round fired and the military in combat generally is not (except if they violate any Law of Warfare provisions).

Area denial is also not feasible in the civilian SD role as even with large civil disturbances, liability and responsibility for each round fired is still in play and the arms available to we civilians now are adequate for the purpose and will not unduely endanger innocent bystanders as much or to the degree FA will.

Same with mortars and grenades. Their purpose is pure military and the issue for us is civilian SD. Civilian SD and the legal liability issues I think pretty much preclude the unrestricted use/possession of FA. FA I think belongs in the curio/hobby world and not in the world of civilian SD.

As to terrorists and the so called "foreign invaders" mentioned in Nordyke dicta, these threats will ultimately be dealt with by LEO/Military and I do not foresee "citizen militias who are really unorganized mobs with guns" meeting those threats effectively.

Indeed they might add more confusion to the mix as the trained responders might not be able to tell the two antagonists apart and cause the wrong folks to get shot. In fact I would see these "militias" shooting each other as well as either the BGs or LEOs/Military responders.

I consider these scenarios kind of nutty anyway and anyone who has spent time in the military knows the difficulty of conducting armed military operations and the foolishness of throwing untrained armed civilians into the mix of those types of combat operations.

[maestro pistolero]

Cane guns, zip guns, briefcase guns, i.e. guns that are designed to look like something else may be sufficiently unusual, and dangerous. If it isn't even recognizable as a gun, someone who as casually handled it wouldn't even know to treat it with proper gun safety protocol.

[buzz_knox]

Cane guns, zip guns, briefcase guns, i.e. guns that are designed to look like something else may be sufficiently unusual, and dangerous. If it isn't even recognizable as a gun, someone who as casually handled it wouldn't even know to treat it with proper gun safety protocol.

That's a good argument for banning firearms in general, given the plethora of airsoft and other replica firearms.

One problem with this whole argument is that we are working hard to come up with how to concede the ultimate argument, which is the right to bear arms. The "we'll give this up if you agree to not go after the rest" is an inherently losing argument. Basically, we are debating how to lose best.

[Evan Thomas]

Originally Posted by Glenn E. Meyer

2. The argument revolves around priming aggression. We know that more extreme the appearance of the weapon, the more it primes negative ideation.
(snip)
Thus, my view is that the perceived view of the enhanced danger of FA and military guns due to their appearance and attraction to nuts would next to impossible to overcome in the general public.

So -- leaving aside the question of FA weapons -- what you're suggesting, Glenn, is that "dangerous and unusual" are qualities that lie pretty much in the eye, or mind, of the beholder, rather than being attributes that lend themselves to some sort of "objective" definition, based on easily measurable properties like caliber, rate of fire, or potential for collateral damage?

And in that case, the argument of the anti-gun crowd against these types of weapons (in particular, military-style rifles, "EBR's") boils down, not to "guns kill people," but to "guns make people think bad thoughts."

Interesting. And this prompts two thoughts: first, as I've said elsewhere, that we need to figure out how to educate people: change their perceptions about actual risk versus perceived risk when it comes to the purely cosmetic features of an EBR; and second, is there a way to bring this point into the legal discussion? I doubt that "Guns that make people think bad thoughts" would qualify as a standard for regulation or prohibition, IF it were possible to make it clear that that's the underlying rationale...

[Dingoboyx]

But I really cant get a grasp on this thread, what it is really all about? All of these weapons are not dangerouse unless somebody makes/uses/weilds them as dangerous? I mean, mum's Iron (for clothes) is dangerous? not so much when she is ironing your pants, only if you come home late for dinner or with ANOTHER gun then she has a red hot, steam injected, quite pointy weapon on the end of a cord, so even if you run, she can throw tis thing at you like bola's.....

I mean, you could pull up at a gas station with your window down, some loony pokes the gas outlet in your window, a cigarette lighter in his other hand and say's hand over your wallet? The danger is in the threat you will be sprayed and set alight. The danger is the PERSON doing the bad deed!

My point is, everything from automobiles, aeroplanes, kitchen utensils, syringes, garden tools & equipment, golf clubs, baseball/cricket bats..... anything/everything can be dangerous.... in DANGEROUS hands. This is especially true for our beloved guns.

People/things dont kill people, people kill people! thats a fact... unfortunately :barf:

[maestro pistolero]

That's a good argument for banning firearms in general, given the plethora of airsoft and other replica firearms.

How is it a good argument for banning firearms in general? And I don't understand the reference to airsoft and replicas. They are not, in fact firearms, so proper gun safety protocol, while advisable, doesn't bear the same consequences if not followed. My post was about items that are guns, but look like something else, an already prohibited category of firearms.

One problem with this whole argument is that we are working hard to come up with how to concede the ultimate argument, which is the right to bear arms. The "we'll give this up if you agree to not go after the rest" is an inherently losing argument. Basically, we are debating how to lose best.

No, I am saying that all small arms ought to be protected. The SCOTUS has already indicated that 2A protection won't exist for dangerous and unusual weapons. My position that no commonly used small arm is dangerous and unusual. A zip gun, etc. is not in common use, nor has it ever been.

These types of firearms are already prohibited, so that loss has already happened. The debate is on what gets protected from here forward. This thread is an attempt to brainstorm, if you will, what dangerous and unusual means. Or could be argued to mean in court. As a 2A proponent, I want that as broadly defined as possible.

[maestro pistolero]

But I really cant get a grasp on this thread, what it is really all about?

It's about a legal definition. The Supreme Court's 'dangerous and unusual' proscription to be exact.

[Yellowfin]

The problem with labelling full auto as "dangerous AND unusual" is that it didn't get much of a chance to get to be usual. It only existed in the common civilian market on an uninterrupted basis for a short time and was expensive then and at a really inconvenient time for things to be expensive. Semi autos were just barely coming into the market and full auto was just barely making its appearance in individual firearm design. The NFA tax continued to be prohibitively expensive, as intended, so from the 30's to the 60's full auto was effectively regulated out of existence--thus "unusual" can't be determined on a fair basis. Then with the GCA of '68 the pool shrank even further so there was less to choose from, further limiting choice. The Ar15 platform was considered too exotic by many and with the early Vietnam problems didn't have a good reputation; it wasn't anything near as popular as it is today around the time the '86 ban came around...which then capped off the number of select fire guns available to all of us and raised the price out of reach.

Applying the "unusual" test to full auto is circular reasoning.

[Glenn E. Meyer]

I was commenting on the psychological impact of some weapons type. Could there be objective standards to danger? We do that all the time with our endless debates about stopping power, now don't we?

I'll throw out that the danger bright line is the design of a weapon to impact more than one person easily and/or simultaneously.

As far as the weapon is just tool argument. That is common among the choir. However, IMHO - based on the large literature on priming aggression ideation - it has no persuasive power in this debate. The guns we want to protect are designed for and perceived as weapons by the general public. In fact, making the tool argument will be so blatanly ridiculous to folks that it is counterproductive.

We are not trying to protect single shot 22S bullseye rifles or pistols. It is also the case that folks see the weapon as bringing out the aggressive impulse. While a hammer or a gas can might do that - they do not naturally call forth their lethal usages. Guns do.

The argument for having them is based on their lethal usage for self-defense, defense of country, etc. Not sports or neutral tools.

[maestro pistolero]

I'll throw out that the danger bright line is the design of a weapon to impact more than one person easily and/or simultaneously.

Careful, even a shotgun, fired into a crowd from a certain distance could easily and simultaneously impact more than one person. On the non-lethal side, so does pepper spray. Not a bad try, but I recommend leaving that one alone.

I was intrigued by the criteria suggested by poptime:

I wonder if part of the equation should be whether the weapon is indiscriminate. A handgun or rifle is aimed at a particular target. A bomb destroys everything in a given area. A machine gun sort of straddles the line.
So a "dangerous" weapon would be one that does not discriminate what it destroys.

But that criteria may also cast too wide a net, again because of the long standing legality and acceptance of the scattergun.

[Glenn E. Meyer]

Shotguns spread was designed for tweety birds. It was later used in combat as in WWI - and I grant you its lethality led the Germans to view it as dangerous. But given the long history of sporting use - the O/U guns probably could pass.

The high cap pumps have problems - antigunners in Switzerland have denounced them. So shotguns are a fuzzy concept. Limited cap shotguns probably skate. Street Sweepers don't.

The FAs and explosive projectile weapons are clearly weapons first. We can probably maintain shotguns as not dangerous if they are not 'extreme'.

Another thing about tools and sport - both the Australians and Brits tried to used these arguments to maintain gun ownership. The UK IDPA and IPSC types sometimes mocked our blood thirsty humanoid targets - why use these for 'sport'. Guess what - bye bye guns.

We tread a tight rope - we want to maintain ownership of instrument of lethal force but don't want to unleash a negative reaction to that usage.

That has to be based on reasonable utility as I said before.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

Careful, even a shotgun, fired into a crowd from a certain distance could easily and simultaneously impact more than one person.

I think we could dispense with that analogy. No shotgun could in any reasonable way be operationally or ballistically be compared with FA, particularly those that fire rifle cartridges. Apples and oranges completely. Any range demonstration would quickly show that.

Also, I don't find poptime's analogy helpful either. ALL bullets are indiscriminate as they kill whereever they are pointed. RPGs are aimed as well as Stingers and handguns.

I would go back to; "are they appropriate and reasonable for civilian SD?" For those weapons designed fully for the military, I would say no.

Originally Posted by Yellowfin

The problem with labelling full auto as "dangerous AND unusual" is that it didn't get much of a chance to get to be usual.

I think you are assuming there was a civilian demand for these FA weapons and I see no evidence that there ever was outside of folks like Baby Face Nelson. Sure they were unrestricted and Thompson tried to sell them to civilians but the venture failed. They were designed to be used by the military and had no practical civilian use even in the 1930s, Great Depression notwithstanding.

[maestro pistolero]

I think we could dispense with that analogy. No shotgun could in any reasonable way be operationally or ballistically be compared with FA, particularly those that fire rifle cartridges. Apples and oranges completely. Any range demonstration would quickly show that.

I agree, there's no comparison.

The comment . . .

Careful, even a shotgun, fired into a crowd from a certain distance could easily and simultaneously impact more than one person

. . . was in reply to Glenn's idea for this definition:

I'll throw out that the danger bright line is the design of a weapon to impact more than one person easily and/or simultaneously.

I was merely pointing out that due to the characteristic spread of shotgun pellets, Glenn's definition might be misconstrued in such a way, that a common shotgun could technically meet the criteria he was suggesting.

I would go back to; "are they appropriate and reasonable for civilian SD?"

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.