Alan Beck, the prevailing counsel in Wolford v. Lopez, has filed this amicus brief on behalf of the Hawaii Rifle Association in Viramontes v. Cook County (the Supreme Court’s pending AR-15 case). From the summary of argument:
This Court should not find the rifles at issue in this litigation are dangerous and unusual weapons. That is because the term “dangerous and unusual” weapons does not refer to any particular type of weapon or characteristic of any arm. Rather, it refers to forms of conduct with weapons. To put it another way, under the historical definition of the term “dangerous and unusual” weapon, no weapon, or class of arms, can be dangerous and unusual because the term refers to conduct not any particular type of weapon. As will be shown below, historically the term “dangerous and unusual” weapons was a conjunctive test. All weapons were considered dangerous. Unusual referred to an unusual use of a dangerous weapon. It did not refer to a weapon which was rarely owned or any other characteristic intrinsic to a weapon. A weapon only became a “dangerous and unusual weapon” when it was used in an unusual manner reasonably foreseeable to cause terror.
And from the main argument:
The term “dangerous weapon,” in the English common law, is a legal term of art that usually included weapons designed or able to kill human beings. In this context, the Common Law’s definition of “dangerous” was any item that could be used to take human life through physical force. See United States v. Hare, 26 F. Cas. 148, 163-64 (C.C.D. Md. 1818) (“[S]howing weapons calculated to take life, such as pistols or dirks, putting [the victim] in fear of his life … is … the use of dangerous weapons.”). See also The King v. Oneby 92 E.R. 465 (Court of the King’s Bench 1727) (“Any dangerous weapon, as a pistol, hammer, large stone, &c. which in probability might kill B. or do him some great bodily hurt.”). Thus, all arms are “dangerous” within this context because they can be used to injure another person. They only become “dangerous and unusual” arms when they are used in an unusual manner. Historically, an unusual use of weapons involved using those weapons in a manner which caused an affray.
…
When used to describe weapons, the word “unusual” is not being used in a different way than
when it is being used to describe attendance. Blackstone states, “Any justice of the peace may…
bind all those… who make any affray; or threaten to kill or beat another; or contend together with hot and angry words; or go about with unusual weapons or attendance, to the terror of the people” 4 William Blackstone, Commentaries on the Laws of England ch. 18 (1769).13 Just as the common law is not outlawing the assembly of unusual people, the common law is not referring to the type of weapon involved when it mentions unusual weapons. The historical phrase, “dangerous and unusual weapons” does not refer to classes or characteristics of weapons. Rather, it describes a class of behavior.
(This is central to the Viramontes case because in Heller the Supreme Court, with further elaboration, acknowledged “the historical tradition of prohibiting the carrying of ‘dangerous and unusual
weapons.'” — so the question in large part is whether an AR-15 is a dangerous and unusual weapon.)
Posted at 6:15 AM