Volume 129Issue 3
Spring 2025
Dangerous and Unusual: How Heller’s Ahistorical Assumption Dangerous and Unusual: How Heller’s Ahistorical Assumption
Violates the Founders’ Original Intent Violates the Founders’ Original Intent
Oliver Krawczyk
Gilbert Ambler
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the Founders’ Original Intent, 129 DICK. L. REV. 801 (2025).
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801
Articles
Dangerous and Unusual: How Heller’s
Ahistorical Assumption Violates the
Founders’ Original Intent
Oliver Krawczyk & Gilbert Ambler
*
Abstract
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.
* Oliver Krawczyk is an attorney at Ambler Law Offices, LLC. He has represented
Second Amendment litigants and amici curiae in state and federal firearms cases
nationwide and in all stages of appeal. He would like to thank WJO, RJO, SDS, and
GJA for their inspiring and principled advocacy; AMM, also known as Bonnie, for
everything; JVS for answering the call; and family, once again, for their unwaver-
ing attention, support, and patience. Gilbert Ambler is the owner of Ambler Law
Offices, LLC. He has devoted his practice to criminal defense and Second Amend-
ment litigation in both state and federal court. He owes a debt of gratitude to the
many mentors who have guided him and contributed to him being a better lawyer
every day. Additionally, he owes thanks to his coauthor for substantial contributions
to this Article, his parents for encouraging a principled approach to life, and his wife
and children for their patience and support.
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[Vol. 129:801
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 govern-
ment of its historical burden under New York State Rifle & Pis-
tol 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 artic-
ulate a more principled approach to interpreting the Second
Amendment. First, in keeping with Heller, if a weapon is “bear-
able,” 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 posses-
sion of “dangerous and unusual weapons.” Instead, Founding-Era
regulations only proscribed offensive conduct with these weapons
when carried openly in public. These regulations therefore can-
not 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 disproportion-
ate 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” weap-
ons. Indeed, as contemporaneous writings make clear, the Found-
ers sought to guarantee firepower parity between the individual
citizen and the government infantryman, so-called “military” arms
included.
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803
I.
Second Amendment Methodology.......... 808
A. The Supreme Court’s Current Guidance........ 809
1. United States v. Miller................... 809
2. District of Columbia v. Heller............. 811
3. McDonald v. City of Chicago ............. 819
4. Caetano v. Massachusetts ................ 820
5. New York State Rifle & Pistol
Ass’n v. Bruen ......................... 822
6. United States v. Rahimi.................. 828
B. The Controlling Historical Time Period for
Understanding Original Meaning ............. 829
C. A Principled Second Amendment Methodology ... 834
Dangerous and Unusual
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II. Historical Regulations of Conduct with
“Dangerous and Unusual Weapons”
Do Not Support Modern Bans on Firearm
Possession ............................ 836
A. A Weapon’s Presumptive Textual Protection
Does Not Turn on “Common Use,” but Rather
Whether It Is “Bearable” .................... 837
B. The Founders Never Regulated the Mere
Ownership or Possession of “Dangerous
and Unusual Weapons,” and to Hold
Otherwise Would Violate Bruen............... 839
C. The Founders Likely Understood “Dangerous
and Unusual Weapons” as a Term of Art for
the Use of Any Weapons in a Circumstantially
Unjustified and Disproportionate Use of Force .... 842
D. Even if “Dangerous and Unusual Weapons”
Contemplated Specific Types of Weapons, They
Did Not Include “Military” Weapons, Which the
Founders Expressly Intended Citizens to Own... 844
Conclusion................................. 849
Introduction
While the Constitution protects individual rights from gov-
ernmental encroachment, the Second Amendment gives those
protections force. Indeed, chief among the Founding Generation’s
motivations in codifying the pre-existing right to keep and bear arms
was its deterrent value and consequent assurance that the Bill of
Rights would not merely be a parchment guarantee. Writing just four
years after the American colonists freed themselves from the then-
most powerful empire in the world, American lexicographer and
Federalist Noah Webster observed:
Before a standing army can rule, the people must be disarmed; as
they are in almost every kingdom in Europe. The supreme power
in America cannot enforce unjust laws by the sword; because the
whole body of the people are armed, and constitute a force supe-
rior to any band of regular troops that can be, on any pretence,
raised in the United States.
1
The alternative—that the citizens might be powerless in force
against governments with arms of their own—was as unpalatable to
1. Noah Webster, An Examination into the Leading Principles of the Federal
Constitution Proposed by the Late Convention Held at Philadelphia 32 (1787).
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the Founders as it has been to populations throughout history.
2
Thus,
the Second Amendment’s prefatory clause “announces a purpose”
3
underlying its codification—that the exercise of the individual right
would ensure “the security of a free State.”
4
Yet despite the Second Amendment’s historical importance
“as a safeguard against tyranny,”
5
few U.S. Supreme Court cases
have discussed its guarantees. Fewer still have applied the Amend-
ment’s “unqualified command”
6
to invalidate governmental action.
This caselaw shortage stands in stark contrast to the plethora of First,
Fourth, Fifth, and Sixth Amendment cases the Supreme Court decides
annually.
7
And that is no fault of Second Amendment litigants, who
have not been shy to petition the Court for writs of certiorari. Yet the
Court has denied the vast majority of Second Amendment petitions,
with Justice Thomas repeatedly denouncing the Second Amend-
ment’s disparate treatment as that of a “second-class right” and
“constitutional orphan.”
8
Whatever the reason behind the Court’s
2. See, e.g., 1 Aleksandr I. Solzhenitsyn, The Gulag Archipelago 1918–1956:
An Experiment in Literary Investigation 13 n.5 (1974) (describing firsthand the
conditions in Soviet labor camps).
And how we burned in the camps later, thinking: What would things have
been like if every Security operative, when he went out at night to make an
arrest, had been uncertain whether he would return alive and had to say
good-bye to his family? . . . The Organs would very quickly have suffered a
shortage of officers and transport and, notwithstanding all of Stalin’s thirst,
the cursed machine would have ground to a halt!
Id.
3. District of Columbia v. Heller, 554 U.S. 570, 577 (2008); see also id. at 599
(“The prefatory clause does not suggest that preserving the militia was the only
reason Americans valued the ancient right; most undoubtedly thought it even more
important for self-defense and hunting.”).
4. U.S. Const. amend. II (emphasis added). In full, the Second Amendment
provides: “A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.” Id. The Sec-
ond Amendment’s prefatory clause—the provision announcing the necessity of a
citizen militia—“does not limit . . . grammatically” the operative clause that follows,
“but rather announces a purpose.” Heller, 554 U.S. at 577. “The Amendment could
be rephrased, ‘Because a well regulated Militia is necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be infringed.’” Id.
5. Heller, 554 U.S. at 600.
6. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (quoting Konigs-
berg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
7. See generally Fulton v. City of Philadelphia, 593 U.S. 522 (2021) (First Amend-
ment); United States v. Jones, 565 U.S. 400 (2012) (Fourth Amendment); Howes v.
Fields, 565 U.S. 499 (2012) (Fifth Amendment); Ramos v. Louisiana, 590 U.S. 83
(2020) (Sixth Amendment).
8. Silvester v. Becerra, 583 U.S. 1139, 1149 (2018) (Thomas, J., dissenting from
denial of certiorari); see also Rogers v. Grewal, 140 S. Ct. 1865, 1865 (2020) (Thomas,
J., dissenting from denial of certiorari) (“This Court would almost certainly review
the constitutionality of a law requiring citizens to establish a justifiable need before
exercising their free speech rights. . . . But today, faced with a petition challenging
Dangerous and Unusual
8052025]
historical reluctance to hear Second Amendment appeals, a total of
six cases from 1939 to the present day now constitute the entirety of
the modern Court’s explication of the Second Amendment.
9
One consequence of this comparative dearth of Second Amend-
ment caselaw is a corresponding dearth of cases construing the
Amendment’s terms. For example, just last year, Justice Thomas
observed that “[w]e have never squarely addressed what types of
weapons are ‘Arms’ protected by the Second Amendment,” a foun-
dational question.
10
Indeed, to date, the Supreme Court only has
decided the constitutionality—on a piecemeal basis—of restrictions
on sawed-off shotguns,
11
handguns,
12
and stun guns.
13
These cases rep-
resent a minuscule fraction of the many kinds of so-called “arms-
ban” cases
14
percolating throughout the lower courts and a rather
tame subset of all weapons in circulation, with far more controversial
firearms continuing to evade review.
15
Even so, litigants and lower courts are not without some guid-
ance. Across its cases, the Supreme Court has issued a number of
puzzle-piece pronouncements on the scope of protected “Arms.”
They include: (1) that “the Second Amendment extends, prima facie,
to all instruments that constitute bearable arms, even those that were
just such a restriction on citizens’ Second Amendment rights, the Court simply looks
the other way.”).
9. See generally United States v. Miller, 307 U.S. 174 (1939); Heller, 554 U.S. 570;
McDonald v. City of Chicago, 561 U.S. 742 (2010) (plurality opinion); Caetano v.
Massachusetts, 577 U.S. 411 (2016) (per curiam); Bruen, 597 U.S. 1; United States v.
Rahimi, 602 U.S. 680 (2024).
10. Harrel v. Raoul, 144 S. Ct. 2491, 2492 (2024) (Thomas, J., respecting denial of
certiorari).
1 1. See generally Miller, 307 U.S. 174. However, the Authors believe the Court’s
highly irregular Miller opinion—holding that the Second Amendment does not pro-
tect sawed-off shotguns—should be overruled post-Bruen. See infra note 36; see also
Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & Liberty
48, 59–67 (2008) (reporting the procedural irregularities underlying the Court’s deci-
sion, which issued without briefing or argumentation from defense counsel and with-
out judicial notice of the historical and modern uses of short-barreled shotguns).
12. See generally Heller, 554 U.S. 570; Bruen, 597 U.S. 1; Rahimi, 602 U.S. 680.
Although the Court’s 2010 McDonald decision also invalidated a handgun ban, it
was a Fourteenth Amendment incorporation case merely applying Heller’s invalida-
tion of federal action to a similar state action. See McDonald, 561 U.S. at 791.
13. See generally Caetano, 577 U.S. 411.
14. See, e.g., Mark W. Smith, What Part of “In Common Use” Don’t You Under-
stand?: How Courts Have Defied Heller in Arms-Ban Cases—Again, Harv. J.L. &
Pub. Pol’y Per Curiam, Fall 2023, at 2, tinyurl.com/2s35n388 [https://perma.
cc/867B-FNXA] (distinguishing between challenges to regulations banning firearms
and regulations proscribing other conduct).
15. See generally Harrel, 144 S. Ct. 2491 (denying petitions for writs of certiorari
in interlocutory appeals challenging an Illinois ban on so-called “assault weapons”
like the ubiquitous AR-15 rifle).
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[Vol. 129:801
not in existence at the time of the founding,”
16
(2) that “that gen-
eral definition covers modern instruments that” so much as “facilitate
armed self-defense,”
17
(3) that “we use history to determine which
modern ‘arms’ are protected by the Second Amendment,”
18
(4) that
“the Second Amendment protects the possession and use of weap-
ons that are ‘“in common use at the time”’”
19
but not “those weapons
not typically possessed by law-abiding citizens for lawful purposes,”
20
(5) that the preceding “limitation is fairly supported by the histori-
cal tradition of prohibiting the carrying of ‘dangerous and unusual
weapons,’”
21
and (6) that even if certain weapons “were considered
‘dangerous and unusual’ during the colonial period,” such history
“provide[s] no justification for laws restricting” those weapons when
they “are unquestionably in common use today.”
22
And as to the
numerical question of “common use,” the Court has indicated that
some 200,000 examples of a particular type of weapon would suffice
for constitutional protection under its “common use” standard.
23
While this guidance should be enough to decide a number of Sec-
ond Amendment “arms-ban” cases, some lower courts have struggled
to apply the Court’s precedents—to put it charitably.
24
For example,
16. Heller, 554 U.S. at 582; see also Bruen, 597 U.S. at 32 (“Heller further con-
firmed that the right to ‘bear arms’ refers to the right to ‘wear, bear, or carry . . . upon
the person or in the clothing or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict with another person.’”
(quoting Heller, 554 U.S. at 584)).
1 7. Bruen, 597 U.S. at 28 (emphasis added).
18. Id.
19. Id. at 21 (quoting Heller, 554 U.S. at 627).
20. Heller, 554 U.S. at 625 (emphasis added).
2 1. Id. at 627.
22. Bruen, 597 U.S. at 47.
23. Caetano v. Massachusetts, 577 U.S. 411, 411 (2016) (per curiam) (rejecting
a lower court’s reasoning that “stun guns are not protected because they ‘were not
in common use at the time of the Second Amendment’s enactment’”); see also id. at
420 (Alito, J., concurring) (emphasis added) (noting “‘approximately 200,000 civil-
ians owned stun guns’ as of 2009” and that, “[w]hile less popular than handguns, stun
guns are widely owned and accepted as a legitimate means of self-defense across the
country”).
24. See, e.g., Friedman v. City of Highland Park, 577 U.S. 1039, 1039 (2015)
(Thomas, J., dissenting from denial of certiorari) (citation omitted) (“[S]everal
Courts of Appeals . . . have upheld categorical bans on firearms that millions of
Americans commonly own for lawful purposes. Because noncompliance with our
Second Amendment precedents warrants this Court’s attention as much as any
of our precedents, I would grant certiorari . . . .”); see also id. at 1041 (“Instead
of adhering to our reasoning in Heller, the Seventh Circuit limited Heller
to its
facts . . . .”);
id. (“[T]he Seventh Circuit felt free to adopt a test . . . that eviscerates
many of the protections recognized in Heller and McDonald.”); Harrel v. Raoul, 144
S. Ct. 2491, 2492 (2024) (Thomas, J., respecting denial of certiorari) (“By contort-
ing what little guidance our precedents provide, the Seventh Circuit concluded that
the Second Amendment does not protect ‘militaristic’ weapons. . . . The Seventh
Dangerous and Unusual
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in upholding an Illinois ban on so-called “assault weapons,”
25
the
Seventh Circuit recently arrived at the untenable conclusion that
these millions of commonly owned firearms
26
fall outside the Second
Amendment’s textual scope by virtue of being too “militaristic.”
27
Thus, according to the Seventh Circuit, certain firearms are not
“Arms” at all, even though the Founders plainly understood “that
all firearms constituted ‘arms.’”
28
In contrast, other courts have not
encountered the same difficulty applying the Supreme Court’s prec-
edents. In an as-applied challenge to the federal prohibition on pos-
session of an unregistered “machinegun,”
29
the U.S. District Court for
the District of Kansas recently held that a defendant’s “machine-
gun and Glock switch are bearable arms within the plain text of the
Second Amendment” simply because they are “arms that can be car-
ried in the hand.”
30
This Article discusses a subset of the Supreme Court’s current
guidance—that the purported “historical tradition of prohibiting the
carrying of ‘dangerous and unusual weapons’” supports a limitation
Circuit’s contrived ‘non-militaristic’ limitation on the Arms protected by the Second
Amendment seems unmoored from both text and history.”).
25. “Assault weapon” is a political term of recent vintage aimed at swaying pub-
lic opinion against firearms with various modern features:
Josh Sugarmann, founder and executive director of the Violence Policy
Center, laid out this strategy of misdirection and obfuscation in a 1988
report on “Assault Weapons and Accessories in America.” Sugarmann
observed that “the weapons’ menacing looks, coupled with the public’s
confusion over fully automatic machine guns versus semi-automatic
assault weapons—anything that looks like a machine gun is assumed to be
a machine gun—can only increase the chance of public support for restric-
tions on these weapons.”
Jacob Sullum, ‘Assault Weapons,’ Explained, Reason (June 2018), tinyurl.
com/yt5v7e93 [https://perma.cc/UJ7T-9XAG].
26. See Bevis v. City of Naperville, 85 F.4th 1175, 1198 (7th Cir. 2023) (“One
brief asserts that at least 20 million AR-15s and similar rifles are owned by some 16
million citizens . . . .”); see also Heller v. District of Columbia, 670 F.3d 1244, 1287
(D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“The AR-15 is the most popular semi-
automatic rifle . . . .”); Garland v. Cargill, 602 U.S. 406, 430 (2024) (Sotomayor, J.,
dissenting) (noting that weapons like the AR-15 are “commonly available”).
2 7. Bevis, 85 F.4th at 1199; see id. at 1194 (concluding, as a textual matter, that
“Arms protected by the Second Amendment do not include weapons that may be
reserved for military use”). But see U.S. Const. amend. II (emphasis added) (con-
templating a “well regulated Militia”).
28. District of Columbia v. Heller, 554 U.S. 570, 581 (2008).
29. A “machinegun” is, inter alia, “any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). Federal
law prohibits the possession of unregistered machineguns and simultaneously bars
private citizens from registering machineguns manufactured or made after May 19,
1986. Id. § 5861; 18 U.S.C. § 922(o).
30. United States v. Morgan, No. 6:23-cr-10047-JWB, 2024 WL 3936767, at *2
(D. Kan. Aug. 26, 2024).
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on what the “Second Amendment protects” altogether.
31
This Article
concludes that it does not. Indeed, as a matter of constitutional text,
Founding-Era and subsequent history, and existing analytical meth-
odology, the government cannot rely on this “historical tradition”
to restrict the mere possession or ownership of classes of bearable
arms, no matter how allegedly “dangerous,” “unusual,” “militaristic,”
or politically disfavored such arms may be. The Founders never regu-
lated the types of weapons “the people” could keep and bear. Instead,
they chose to regulate certain conduct with weapons. And there is no
greater confirmation of this understanding than the early American
tradition of widespread ownership and use of “military” weapons.
Thus, to the extent the Supreme Court is poised to codify its
prior “dangerous and unusual” limitation as a holding in a future
“arms-ban” case, this Article urges a closer examination of the text,
history, and scope of these historical regulations—particularly what
they say, but also what they do not say. Such review is necessary to
preserve the integrity of the Court’s original-meaning focus and
illuminate the scope of the Second Amendment right itself. Accord-
ingly, this Article begins with a review of the Court’s modern Second
Amendment precedents.
I. Second Amendment Methodology
Whether a particular instrument constitutes an “Arm” under the
Second Amendment is a critical question that speaks to the very sub-
ject matter of the right itself. Indeed, if an instrument is not an “Arm,”
then logic would dictate that there is no “right to keep and bear”
it. The meaning of this essential term is as foundational to under-
standing the Second Amendment as is understanding the meaning
of “speech” under the First Amendment or “searches and seizures”
under the Fourth Amendment.
And if the Constitution is to have any meaning at all, it must
be understood according to its original meaning—that is, the mean-
ing its terms had when the people first adopted them. This interpre-
tive approach is a hallmark of textualism and originalism, the only
approaches that afford any measure of predictability in constitu-
tional analysis. Without these historical guideposts, judges invariably
redefine constitutional text to their liking, whether consciously or
unconsciously.
3 1. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 21 (2022) (emphasis
added) (quoting Heller, 554 U.S. at 627); see also Heller, 554 U.S. at 627 (stating that,
as a “limitation on the right to keep and carry arms,” the “sorts of weapons pro-
tected” are those “in common use at the time”).
Dangerous and Unusual
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The Supreme Court already has explained these analytical
precepts, in so many words. Particularly with respect to the Second
Amendment, the Court has directed judges to invalidate restrictions
on weapons that fail to comport with the Amendment’s text and his-
torical understanding. In so doing, the Court largely has stayed true
to its original-meaning focus. But at times, its pronouncements have
deviated.
The Court’s existing pronouncements on the scope of protected
“Arms” are one such example of a deviation from original meaning.
At present, the Court appears to believe that the Second Amend-
ment only protects weapons “in common use,” a seeming antonym
of the historical term “dangerous and unusual.” But as the remainder
of this Article makes clear, the apparent historical support for this
“common use” limitation is lacking. And in any case, imposing such
a limitation on the Second Amendment would be as illogical as sug-
gesting the First Amendment only protects popular speech, or only
the free exercise of major religions. Under similar logic, the Fourth
Amendment likewise would protect against only the most commonly
employed forms of search.
Thankfully, the Court has qualified that its current “Arms” pro-
nouncements are not the products of a fully briefed, fully explored
historical record, but rather assumptions and interpretations that
could benefit from further analysis. Thus, the following discussion of
the Supreme Court’s Second Amendment cases will highlight their
key precepts with respect to the scope of protected “Arms,” and
explain how these precepts ultimately fit into the best reading of the
Court’s analytical framework going forward.
All of this methodological exposition is critical to answering the
central question of what “Arms” the Second Amendment protects.
And to answer this question, the historical time period that controls
textual and historical analysis must be the Founding Era. Ultimately,
at the Founding, there was no limitation on the scope of protected
“Arms” based on common usage, dangerousness, unusuality, or rar-
ity. With that, this Article turns to the Supreme Court’s existing
precedents.
A. The Supreme Court’s Current Guidance
1. United States v. Miller
In 1939, the Supreme Court decided a criminal appeal from
indictments under President Franklin D. Roosevelt’s National Fire-
arms Act (NFA) in United States v. Miller.
32
Police had searched two
32. United States v. Miller, 307 U.S. 174 (1939).
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[Vol. 129:801
would-be bank robbers and discovered an unregistered sawed-off,
or “short-barreled,” shotgun in their possession—a felony violation
of federal law.
33
In their subsequent constitutional challenge to the
NFA’s taxation and registration requirements for these sorts of shot-
guns, the defendants maintained that the Second Amendment pro-
tected their rights to possess such weaponry.
34
The Supreme Court disagreed. Having been briefed only by the
United States on appeal,
35
the Court cited the Second Amendment’s
prefatory clause to hold that the Amendment protected only those
arms useful for militia duty—that is, military arms:
In the absence of any evidence tending to show that possession
or use of a “shotgun having a barrel of less than eighteen inches
in length” at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and
bear such an instrument. Certainly it is not within judicial notice
that this weapon is any part of the ordinary military equipment or
that its use could contribute to the common defense.
36
33. See id. at 175.
34. Id. at 176. The district court sustained the defendants’ demurrer in a three-
paragraph opinion containing no legal analysis, stating only that “[t]he court is of the
opinion that this section [of the NFA] is invalid in that it violates the Second Amend-
ment.” United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark.), rev’d, 307 U.S. 174
(1939).
35. During the pendency of the Miller case, counsel for the defendants accepted
a political appointment and declined to appear at oral argument before the Supreme
Court, citing the defendants’ inability to pay him. See Frye, supra note 11, at 60,
66–67.
36. Miller, 307 U.S. at 178. But see Complaint for Declaratory and Injunctive
Relief at 72–73, Texas v. BATFE, 700 F. Supp. 3d 556 (S.D. Tex. 2023) (No. 6:23-
cv-00013) (collecting examples of the blunderbuss, a Founding-Era short-barreled
shotgun whose existence evaded the Miller Court’s judicial notice). Had the Court
been aware of the blunderbuss’s military and other uses, it likely would have decided
Miller differently. Thus, because Miller “was rendered without benefit of a full airing
of all the relevant considerations,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 709 n.6
(1978) (Powell, J., concurring), the Authors believe Miller should be overruled—at
least as to its holding that the Second Amendment does not protect short-barreled
shotguns. See also Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 264 (2022)
(“[W]hen one of our constitutional decisions goes astray, the country is usually stuck
with the bad decision unless we correct our own mistake. . . . [I]n appropriate cir-
cumstances we must be willing to reconsider and, if necessary, overrule constitu-
tional decisions.”).
To be sure, Miller’s focus on ordinary military equipment was justified. As the
historical sources identified throughout this Article explain, the Second Amendment
protects citizen ownership of bearable military arms. But the Second Amendment
does not protect only such arms. Should the Court reexamine Miller and apply
Bruen’s textual and historical standard to this provision of the NFA, a dearth of
Founding-Era barrel-length restrictions would serve as dispositive proof that the
NFA’s regulation of short-barreled shotguns is unconstitutional.
Dangerous and Unusual
8112025]
The Court then surveyed several Founding-Era statutes impos-
ing various requirements for militia duty. For example, a 1785 Virginia
law required “[a]ll free male persons between the ages of eighteen
and fifty years” to “appear at his respective muster-field on the day
appointed” and that “every non-commissioned officer and private”
be “armed, equipped, and accoutred” with “a good, clean musket car-
rying an ounce ball, and three feet eight inches long in the barrel, with
a good bayonet and iron ramrod well fitted thereto, a cartridge box
properly made, to contain and secure twenty cartridges fitted to his
musket, [and] a good knapsack and canteen.”
37
Other states enacted
similar requirements for those expected to appear for militia duty.
Observing that “ordinarily when called for service these men were
expected to appear bearing arms supplied by themselves and of the
kind in common use at the time,” the Court concluded that “none” of
these Founding-Era authorities “seem[ed] to afford any material sup-
port for the challenged ruling.”
38
Accordingly, the Miller rule provided
that the Second Amendment protected military arms only and implied
that these sorts of arms were “in common use” at the Founding.
39
2. District of Columbia v. Heller
The Supreme Court declined to hear another Second Amend-
ment case for decades following Miller; that is, until District of
Columbia v. Heller.
40
In this intervening vacuum of authority, a hand-
ful of 20th-century judges began to reinterpret the Second Amend-
ment as protecting not an individual right to keep and bear arms,
but rather only a state’s communal right to maintain its own militia.
41
Under these reinterpretations, litigants’ challenges to all manner of
atextual and ahistorical
42
firearm regulations failed for lack of stand-
ing to claim an enforceable individual right.
43
3 7. Miller, 307 U.S. at 181.
38. Id. at 179, 182.
39. See id. at 178.
40. District of Columbia v. Heller, 554 U.S. 570 (2008).
4 1. See id. at 638 n.2 (Stevens, J., dissenting).
42. A firearm regulation is atextual—contrary to text—when it contravenes the
Second Amendment’s “unqualified command”—that “the right to keep and bear
Arms, shall not be infringed.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10
(1961); U.S. Const. amend. II. A firearm regulation likewise is ahistorical—contrary
to history—when it departs from the informative regulatory tradition in place at the
time the text was ratified. See N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28
(2022).
43. See, e.g., Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996) (“We follow our
sister circuits in holding that the Second Amendment is a right held by the states,
and does not protect the possession of a weapon by a private citizen. We conclude
that Hickman can show no legal injury, and therefore lacks standing to bring this
action.”).
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Finally breaking its silence in 2008, the Supreme Court repu-
diated this collective-rights theory and invalidated a District of
Columbia “prohibition on the possession of usable handguns in the
home.”
44
Writing for a five-to-four originalist majority, Justice Scalia
concluded that, “on the basis of both text and history, . . . the Second
Amendment conferred an individual right to keep and bear arms.”
45
In so holding, the Court declined to engage in any sort of “judge-
empowering ‘interest-balancing inquir[ies],’”
46
the modern constitu-
tional tests 20th-century judges had created to depart from original
meaning.
47
Observing that “[c]onstitutional rights are enshrined with
the scope they were understood to have when the people adopted
them,”
48
the Court opted instead to employ a rigorous textual and
historical analysis to ascertain the original meaning of the Second
Amendment.
Accordingly, the Court consulted Founding-Era authorities to
conclude that to “keep Arms” means to “have” or “possess[]” them,
49
that to “bear Arms” means to “wear” or “carry” them “upon the
person,”
50
and that “Arms” are “[w]eapons of offence, or armour of
defence” and “any thing that a man wears for his defence, or takes
into his hands, or useth in wrath to cast at or strike another,” includ-
ing “all firearms.”
51
And because not “only those arms in existence
in the 18th century are protected by the Second Amendment,”
52
the
Court explained that the Amendment necessarily “extends, prima
facie, to all instruments that constitute bearable arms, even those
44. Heller, 554 U.S. at 573.
45. Id. at 595.
46. Id. at 634. For example, “rational basis review,” “intermediate scrutiny,” or
“strict scrutiny,” all of which empower judges to decide by themselves how “impor-
tant” or “compelling” the government’s “interest” is in violating constitutional text
and how “tailored” the government’s action is to achieve that “interest.” See Bruen,
597 U.S. at 18–19. Such inquiries are not grounded in principle, but rather the predi-
lections of individual judges.
4 7. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter, J.,
concurring in the judgment) (“For a citizen to be made to forego even a part of so
basic a liberty as his political autonomy, the subordinating interest of the State must
be compelling.”); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (“The problem
in any case is to arrive at a balance between the interests of the . . . citizen . . . and the
interest of the State . . . .”).
48. Heller, 554 U.S. at 634–35.
49. Id. at 582, 583.
50. Id. at 584.
5 1. Id. at 581 (alteration in original).
52. Id.
at 582 (noting that “the First Amendment protects modern forms of
communications” and “the Fourth Amendment applies to modern forms of search”);
see also United States v. Rahimi, 602 U.S. 680, 692 (2024) (“Holding otherwise would
be as mistaken as applying the protections of the right only to muskets and sabers.”).
Dangerous and Unusual
8132025]
that were not in existence at the time of the founding.”
53
Finally, as to
who enjoys the “right to keep and bear Arms,” the Court noted that,
“in all six other provisions of the Constitution that mention ‘the
people,’ the term unambiguously refers to all members of the politi-
cal community, not an unspecified subset.”
54
The Court therefore
adopted “a strong presumption that the Second Amendment right
is exercised individually and belongs to all Americans”
55
before
reviewing subsequent history, which “universally support[ed]” and
“confirm[ed]” this understanding of the text.
56
As for the relationship between the Second Amendment’s pref-
atory “Militia” clause and its operative “right of the people” clause,
the Court observed that “the ‘militia’ in colonial America consisted
of a subset of ‘the people’—those who were male, able bodied, and
within a certain age range.”
57
Thus, because the right inhered
58
in
“the people”—a broader population than the “Militia”—the prefa-
tory clause simply “announce[d] a purpose” for codifying the Sec-
ond Amendment without “limit[ing]” who could exercise the right.
59
Consulting history to clarify the animating purpose of the Second
Amendment’s codification, the Court recognized the Founders’ deep
concern with the future disarmament of the citizenry and the con-
sequent reimposition of the very tyranny they had just quashed.
60
Accordingly, the “citizens’ militia” stood “as a safeguard against tyr-
anny,” and the Second Amendment “prevent[ed] elimination of the
militia.”
61
Even so, the Court noted that “[t]he prefatory clause does
not suggest that preserving the militia was the only reason Ameri-
cans valued the ancient right; most undoubtedly thought it even
more important for self-defense and hunting.”
62
According to this understanding, the Second Amendment there-
fore must protect, at minimum, that conduct which effectuates the
preservation of “the security of a free State”—meaning the citizen
ownership, “proper discipline,” “training,” and use, if necessary, of
53. Heller, 554 U.S. at 582.
54. Id. at 580.
55. Id. at 581 (emphasis added).
56. Id. at 610.
5 7. Id. at 580.
58. Indeed, the right is “inherent” in the sense that it exists with or without doc-
umentary recognition of its existence. The right to keep and bear arms was under-
stood to pre-exist the Constitution, being a common-law right inherited from English
tradition. See id. at 592, 603.
59. Id. at 577.
60. See id. at 598 (“During the 1788 ratification debates, the fear that the Fed-
eral Government would disarm the people in order to impose rule through a stand-
ing army or select militia was pervasive in Antifederalist rhetoric.”).
6 1. Id. at 600, 599.
62. Id. at 599.
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“ordinary military equipment” as a “safeguard against tyranny.”
63
And because “the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were not
in existence at the time of the founding,”
64
this protection extends to
modern military equipment, at least to the extent it is “bearable.”
65
Under this original reading of text and history, then, Miller’s histori-
cal error was limiting the Second Amendment only to militia activ-
ity. Of course, the Second Amendment also protects the ownership
and use of arms for hunting, sport, and everyday self-defense, among
other historically lawful purposes.
66
But that is not quite how the Heller Court construed Miller.
Turning its attention to this prior holding, the Court appeared to read
Miller in such a manner as to question the Second Amendment’s pro-
tection of a subset of modern military equipment:
We may as well consider at this point (for we will have to consider
eventually) what types of weapons Miller permits. Read in isola-
tion, Miller’s phrase “part of ordinary military equipment” could
mean that only those weapons useful in warfare are protected.
That would be a startling reading of the opinion, since it would
mean that the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional, machineguns
being useful in warfare in 1939. We think that Miller’s “ordinary
military equipment” language must be read in tandem with what
comes after: “[O]rdinarily when called for [militia] service [able-
bodied] men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time.” . . . We
therefore read Miller to say only that the Second Amendment
does not protect those weapons not typically possessed by law-
abiding citizens for lawful purposes . . . .
67
63. U.S. Const. amend. II; Heller, 554 U.S. at 597, 624, 600; see also Heller, 554
U.S. at 582.
64. Heller, 554 U.S. at 582.
65. Although beyond the scope of this Article, the Authors question whether
the Founders originally understood the Second Amendment to extend only to
“bearable” arms. For example, “[t]here were no federal laws barring cannon owner-
ship when the Second Amendment was enacted.” Jonathan Turley, No, the Second
Amendment Did Not Prohibit Cannon Ownership in the Early Republic, Jonathan
Turley (Apr. 12, 2022), tinyurl.com/y59t2rcu [https://perma.cc/V7R4-G9S7].
It seems unlikely that the Founders would have understood privateering—the war-
time deployment of private ships armed with privately owned cannons—to have
been unprotected, especially when privateers proved pivotal during the Revolution
and later War of 1812. Privateers were “the militia of the sea,” and cannons were the
tools of their trade. The Militia of the Sea, Am. Battlefield Tr., tinyurl.com/
bdfd7her [https://perma.cc/JZQ9-5ZN8] (last visited Mar. 30, 2025).
66. See Heller, 554 U.S. at 599; see also id. (“[S]elf-defense
. . . [i]s the central
component of the right itself.”).
6 7. Id. at 624–25 (alterations in original).
Dangerous and Unusual
8152025]
In support, the Court observed that “nothing in our precedents
forecloses” that reading, despite having noted that, at the time of the
Founding, “weapons used by militiamen and weapons used in defense
of person and home were one and the same.”
68
Thus, even though
citizens at the Founding owned and mustered with then-modern
military weapons, the Court implied that it would not hold modern
citizens to enjoy that same right. Indeed, the Court suggested that
machineguns currently “useful in military service”—like those belong-
ing to the M16 family
69
—might be excluded from the Second Amend-
ment’s scope due to being “highly unusual in society at large.”
70
But
if machineguns are “unusual,” that is not due to popular preference,
but rather the NFA’s artificial cap on the number of citizen-trans-
ferable machineguns in circulation. Ultimately, the Court appeared
to shrug at this historical mismatch, demurring that “modern-
day bombers and tanks” have “limited the degree of fit between the
prefatory clause and the protected right” anyway.
71
The Heller Court found this “limitation” arising from its read-
ing of Miller—that “the sorts of weapons protected were those ‘in
common use at the time’”—to be “fairly supported by the histori-
cal tradition of prohibiting the carrying of ‘dangerous and unusual
weapons.’”
72
This reference to “dangerous and unusual weapons” was
novel; never before had the Court mentioned the term in its prior
interpretation of the scope of protected “Arms.” Yet despite this
novelty, the Court did not elaborate any further. Thus, in a seeming
departure from its original-meaning inquiry, the Court appeared to
adopt a literal reading of “dangerous and unusual”—apparently con-
templating some elevated lethality or rarity—without engaging in
any historical analysis of the term’s original usage. And even though
this “tradition” spoke only of the “carrying” of certain “dangerous
and unusual weapons” on its face, the Court believed it could support
the outright banning of certain uncommon weapons altogether.
73
68. Id. at 625 (emphases added) (quoting State v. Kessler, 614 P.2d 94, 98 (Or.
1980)).
69. The “M16 family” refers to the full-length M16, shortened M4, further short-
ened Mk 18, and various other variants of the same platform—a fully automatic or
burst-fire AR-15 adopted by the U.S. Armed Forces.
70. Heller, 554 U.S. at 627.
7 1. Id. at 627–28. But bombers and tanks have no bearing on whether a man-
portable machinegun like the M16—a “bearable” arm—is protected under the Sec-
ond Amendment. Based on the Second Amendment’s original meaning, the M16
should be.
72. Id.
at 627 (emphasis added) (citing a collection of sources ranging from
Blackstone to Wharton and several 19th-century cases).
73. But see Antonin Scalia & Bryan A. Garner, Reading Law: The Inter-
pretation of Legal Texts 174 (2012) (footnote omitted) (“If possible, every word
and every provision is to be given effect (verba cum effectu sunt accipienda). None
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As one of this Article’s Authors observed in a previous work,
“[w]hat could follow from this formulation is concerning—if the leg-
islature or an executive agency can make a certain type of firearm
sufficiently rare to the point that the citizens do not typically possess
it for lawful purposes, the firearm presumably loses Second Amend-
ment protection.”
74
Indeed, several legal commentators have criti-
cized the apparent circularity of the Court’s “common use” standard,
which would appear to allow the scope of a right to be determined
by the degree of its regulation.
75
But fortunately, as Justice Scalia
observed in a previous opinion, a “5-to-4 decision . . . [i]s scarcely the
expression of clear and well accepted constitutional law.”
76
So too
with Heller’s five-to-four “common use” limitation.
Heller’s reading of “common use” as a limitation on the scope of
protected “Arms”—based solely on the sorts of firearms early Amer-
icans would bring to militia duty—also ignores the other “reason[s]
Americans valued the ancient right.”
77
As Miller acknowledged,
Founding-Era militia laws set specific standards for the sorts of arms
citizens could bring: “a good fire arm,” “a good Musket or Firelock, a
sufficient Bayonet and Belt,” “a good, clean musket carrying an ounce
should be ignored. None should needlessly be given an interpretation that causes it
to duplicate another provision or to have no consequence.”).
74. Oliver Krawczyk, Comment, Dangerous and Unusual: How an Expanding
National Firearms Act Will Spell Its Own Demise, 127 Dick. L. Rev. 273, 287 (2022).
75. See, e.g., Jamie G. McWilliam, The Relevance of “In Common Use”
After Bruen, Harv. J.L. & Pub. Pol’y Per Curiam, Fall 2023, at 3, tinyurl.
com/27z2hf26 [https://perma.cc/U7HV-6KCQ].
[T]he common use standard may make judicial review of laws circular. For
example, the NFA regulates machine guns, and a court asked to consider
the issue would likely uphold this restriction because machine guns are not
in common use by the general public. However, given the extreme popular-
ity of the AR-15, its fully automatic cousins the M16 and M4 are likely only
not in common use because they are already regulated by the NFA. Thus,
the regulation becomes self-approving over time.
Id.; see also Daniel Page, Dangerous and Unusual Misdirection: A Look at the
Common Law Tradition of Prohibiting Going Armed with Dangerous and Unusual
Weapons to the Terror of the People as Cited in District of Columbia v. Heller 31
(May 4, 2011) (unpublished manuscript) (on file online on SSRN), tinyurl.
com/527c3xte [https://perma.cc/AQ5L-NTPJ] (“The common use test is not sup-
ported under an originalist style of interpretation, and it was not included in the
original meaning or understanding of the Second Amendment. It is circular, allows
for arbitrary and cosmetic distinctions between firearms, and will result in differing
outcomes for similar fact patterns.”). But see Mark W. Smith, Dangerous, but Not
Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation, 22 Geo. J.L. &
Pub. Pol’y 599, 638 (2024) (“Far from a circular inquiry, asking the government to
demonstrate that a banned arm is not in common use today is an objective inquiry
that is also administrable for courts.”).
76. Harmelin v. Michigan, 501 U.S. 957, 965 (1991).
7 7. Heller, 554 U.S. at 599.
Dangerous and Unusual
8172025]
ball, and three feet eight inches long in the barrel.”
78
If these sorts of
arms were “in common use,” perhaps that was because they were par-
ticularly suited for militia duty. Indeed, there are many reasons why
the militia would have valued arms that were “common.” Perhaps the
militia valued mechanical reliability or parts interchangeability in the
field, or even mutual familiarity among militiamen with the operation
of each other’s equipment. It seems unlikely that the militia would
have tolerated rare, oddball, or unreliable firearms, or firearms only
suited for hunting, close-quarters personal defense, or recreational
shooting. But as Heller acknowledged, early Americans treated these
other non-militia purposes as at least equally “important.”
79
Thus, the
militia’s use of arms “in common use” sheds no light on the full scope
of the Second Amendment’s protected “Arms.” To use commonality
for one purpose to divine a commonality limitation as to all purposes
departs from text and history.
Perhaps the better reading of the “common use” standard, then,
is that it stands apart from the textual and historical framework Heller
established, and it exists as a means of short-circuiting an otherwise
rigorous constitutional inquiry.
80
Thus, rather than hinging consti-
tutional protection on a manipulable popularity contest, “common
use” can render historical analysis superfluous when an arm simply
is ubiquitous enough. In other words, the people’s preferences prevail.
A number of passages from the Supreme Court’s precedents
support this approach. First, although concluding that “[f]ew laws in
the history of our Nation have come close to the severe restriction of
the District’s handgun ban,” the Heller Court alternatively held that:
It is enough to note, as we have observed, that the American people
have considered the handgun to be the quintessential self-defense
weapon. . . . Whatever the reason, handguns are the most popular
weapon chosen by Americans for self-defense in the home, and a
complete prohibition of their use is invalid.
81
The Court’s declination to apply “any of the standards of
scrutiny . . . applied to enumerated constitutional rights” likewise lends
support, as the Court reiterated that Heller’s “handgun ban amounts
to a prohibition of an entire class of ‘arms’ that is overwhelmingly
chosen by American society for that lawful purpose.”
82
Despite its
78. United States v. Miller, 307 U.S. 174, 180, 181 (1939) (emphases added).
79. Heller, 554 U.S. at 599.
80. The Authors credit Robert Olson, attorney for Gun Owners of America,
Inc. and Gun Owners Foundation, with conceptualizing “common use” as a sort of
analytical “short circuitry.”
8 1. Heller, 554 U.S. at 629.
82. Id. at 628.
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“dangerous and unusual” dicta, Heller’s own holdings therefore sug-
gest that the textual and historical standard accommodates protection
for more than just the most common weapons in circulation.
The Court’s subsequent decisions provide further confirmation
of this view, with majorities and single Justices opining that “Mem-
bers of this Court” simply “loo[k] to history for guidance” when
“[d]iscerning what the original meaning of the Constitution
requires.”
83
Thus, even though “we use history to determine which
modern ‘arms’ are protected by the Second Amendment,” if cer-
tain weapons “are unquestionably in common use today,” then they
cannot be prohibited even if those same weapons “were considered
‘dangerous and unusual’” at the Founding.
84
In other words, an over-
whelming modern preference will trump historical tradition even if
such tradition otherwise might have supported modern regulation.
85
Indeed, the Court later observed that “the traditions of the Ameri-
can people . . . demand[] our unqualified deference,”
86
and so judges
ought not to second-guess popular preferences “given their ‘lack [of]
expertise’ in the field.”
87
Of course, if judges are to defer to mod-
ern preferences at all, such deference must favor an individual-rights
reading of the Constitution. To turn this “one-way ratchet”
88
in the
83. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 25 (2022) (alteration
in original) (quoting Am. Legion v. Am. Humanist Ass’n, 588 U.S. 19, 60 (2019));
United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J., concurring).
84. Bruen, 597 U.S. at 28, 47. The full text of this Bruen passage is enlightening:
Whatever the likelihood that handguns were considered “dangerous and
unusual” during the colonial period, they are indisputably in “common use”
for self-defense today. They are, in fact, “the quintessential self-defense
weapon.” Thus, even if these colonial laws prohibited the carrying of hand-
guns because they were considered “dangerous and unusual weapons” in
the 1690s, they provide no justification for laws restricting the public carry of
weapons that are unquestionably in common use today.
Id. at 47 (emphasis added) (citation omitted). Note the implicit acknowledgement
that “dangerous and unusual” offenses prohibited just the certain carrying of weap-
ons, not their broader ownership or possession.
85. See also Krawczyk, supra note 74, at 288 (arguing that, with respect to NFA
items, “it is possible for weapons that once fell into this [dangerous and unusual]
category to gain such popularity through legal acquisition so as to become quite
typical—and indeed common”).
86. Bruen, 597 U.S. at 26.
8 7. Id. at 25 (alteration in original) (quoting McDonald v. City of Chicago, 561
U.S. 742, 791 (2010) (plurality opinion)).
88. United States v. Rahimi, 602 U.S. 680, 705 (2024) (Sotomayor, J., concur-
ring). Contrary to Justice Sotomayor’s “fear[]” that the Second Amendment’s ana-
lytical methodology makes it difficult to restrict the right to self-defense, the entire
point of a constitutional guarantee is to set aside individual rights from governmen-
tal interference. Id. As the Iowa Supreme Court recently explained, “[c]entral to our
constitutional structure is the important protection of the individual to be free from
government interference, which is usually packaged in the language of individual
rights or civil liberties.” State v. Price-Williams, 973 N.W.2d 556, 566 (Iowa 2022).
Dangerous and Unusual
8192025]
other direction and allow swings in popular attitudes to narrow an
individual right would contravene the very purpose of enumerating a
pre-existing right in the first place.
Ultimately, Heller declined to describe its “arms-ban” stan-
dard any further, summarily concluding that handguns are “in com-
mon use” without reference to any ownership statistics or numerical
threshold.
89
To be sure, establishing such a threshold would have been
“an exercise in arbitrariness and futility, requiring insights of ques-
tionable accuracy into ever-shifting ownership trends and market
availabilities.”
90
But Heller’s prevailing “common use” standard, a
“kind of ‘“we know it when we see it”’ approach to constitutional
rights, can hardly claim any serious advantages when it comes to work-
ability or predictability.”
91
A numerical guidepost would come later.
3. McDonald v. City of Chicago
Heller was unique in that it invalidated federal action but left
open the question of the Second Amendment’s applicability to
state action. The Supreme Court’s subsequent McDonald v. City of
Chicago
92
decision addressed that question rather promptly, holding
that the Fourteenth Amendment incorporated the Second Amend-
ment against the states.
93
Interestingly, the Court failed to reach a
majority as to just how the Fourteenth Amendment accomplished
this task, with a four-Justice plurality applying the Court’s 20th-cen-
tury Due Process Clause precedents.
94
In contrast, Justice Thomas
concurred in the judgment only, questioning the “tenuous” reasoning
underlying such precedents and explaining that “the right to keep
and bear arms is a privilege of American citizenship that applies to
the States through the Fourteenth Amendment’s Privileges or Immu-
nities Clause.”
95
Even so, McDonald stands for two key propositions
with respect to the Second Amendment.
First, the plurality observed that, “[i]n Heller, . . . we expressly
rejected the argument that the scope of the Second Amendment
right should be determined by judicial interest balancing.”
96
Thus, as
89. Logically, there should come a point when something is so numerous that it
is “common.”
90. Krawczyk, supra note 74, at 292.
9 1. SEC v. Jarkesy, 603 U.S. 109, 164 (2024) (Gorsuch, J., concurring) (citation
omitted).
92. McDonald v. City of Chicago, 561 U.S. 742 (2010) (plurality opinion).
93. Id. at 791.
94. See id. at 748–49.
95. Id. at 812, 806 (Thomas, J., concurring in the judgment).
96. Id. at 785 (plurality opinion); see also id. at 791 (“[W]hile [Justice Breyer’s
dissenting] opinion in Heller recommended an interest-balancing test, the Court
specifically rejected that suggestion.”).
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of 2010, it should have been clear to the lower courts not to engage
in the varying tiers of scrutiny that Heller had declined to apply.
Second, a majority of the Court rejected “the notion that the Four-
teenth Amendment applies to the States only a watered-down, sub-
jective version of the individual guarantees of the Bill of Rights.”
97
Accordingly, the Second Amendment applies with equal force and
scope throughout the dual-sovereign American system. The Sec-
ond Amendment’s protections cannot mean something less against
the states, guaranteeing fewer rights, just because the public under-
standing of the right may have differed at the time of the Fourteenth
Amendment’s ratification in 1868.
Aside from its incorporation holding, McDonald shed no addi-
tional light on the scope of protected “Arms.” Indeed, the Court inval-
idated a Chicago handgun ban similar to the District of Columbia’s
in Heller. Once the Court determined that the Second Amendment
applied against the states, the Court resolved the case via straightfor-
ward application of Heller’s holding.
98
4. Caetano v. Massachusetts
The Supreme Court’s next Second Amendment decision would
not come for another six years. When it did, some were surprised to
see that it was only two pages long. In its notably short Caetano v.
Massachusetts
99
per curiam opinion, the Court held that the Second
Amendment protects stun guns, reversing a Massachusetts court’s
contrary ruling.
100
Consequently, the Court rejected the state court’s
“frivolous”
101
proposal that the Second Amendment applies only
9 7. Id. at 765 (majority opinion) (quoting Malloy v. Hogan, 378 U.S. 1, 10–11
(1964)).
98. See id. at 791 (plurality opinion).
99. Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam).
100. Id. at 411–12. Incredibly, a district court recently rejected this basic hold-
ing, claiming that Caetano only reversed erroneous reasoning but never actually
held that stun guns were protected. See Calce v. City of New York, No. 1:21-cv-
08208-ER, 2025 WL 895414 (S.D.N.Y. Mar. 24, 2025). But this minimization of prec-
edent ignores the rule that the Supreme Court “reviews judgments, not statements
in opinions.” Black v. Cutter Lab’ys, 351 U.S. 292, 297 (1956). Indeed, Caetano would
have “affirmed if the result [wa]s correct ‘although the lower court relied upon a
wrong ground or gave a wrong reason.’” SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)
(quoting Helvering v. Gowran, 302 U.S. 238, 245 (1937)). Thus, the Massachusetts
court’s judgment that the Second Amendment did not protect stun guns clearly was
incorrect. The Supreme Court certainly believes that to be the case, having relied on
Caetano to conclude that the Second Amendment “covers modern instruments that
facilitate armed self-defense.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28
(2022) (citing Caetano and providing “stun guns” parenthetically); see also id. at 32
(citing Caetano after reiterating that handguns are “in common use”). Calce simply
cannot be squared with Caetano or Bruen.
1 0 1. District of Columbia v. Heller, 554 U.S. 570, 582 (2008).
Dangerous and Unusual
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to arms “in common use at the time of the Second Amendment’s
enactment.”
102
Reiterating Heller’s holding to the contrary, the Court
made clear that “the Second Amendment ‘extends . . . to . . . arms . . .
that were not in existence at the time of the founding.’”
103
Likewise,
the Court rejected an inquiry into whether stun guns are “dangerous
per se at common law and unusual,” indicating that the Court would
assess an arm’s unusuality, whatever that may mean, under a present-
day standard.
104
Finally, the Court rejected a requirement that stun
guns be “readily adaptable to use in the military,” noting that Heller
already repudiated “the proposition ‘that only those weapons useful
in warfare are protected.’”
105
With that, Caetano’s per curiam opinion
concluded, as it was another straightforward application of Heller.
In keeping with Heller, the Caetano per curiam opinion did
little to articulate the Court’s “common use” standard. However, a
thorough concurrence written by Justice Alito and joined by Jus-
tice Thomas made a fascinating revelation—that the Court had been
aware of only “approximately 200,000 . . . stun guns” in circulation at
the time.
106
Indeed, “[w]hile less popular than handguns,” the concur-
ring Justices noted that “stun guns are widely owned and accepted
as a legitimate means of self-defense across the country.”
107
If
200,000 known examples of a weapon are enough to constitute wide
ownership—or common use—then the Second Amendment must
protect all manner of firearms by virtue of their popularity alone.
108
The Caetano concurrence is also notable for what the Justices
proposed but the full Court ultimately declined to adopt. Reading the
per curiam opinion to impose a literal, “conjunctive test,” the concur-
ring Justices proposed that “[a] weapon may not be banned unless it
is both dangerous and unusual.”
109
First, the Justices suggested that
“the relative dangerousness of a weapon” might be relevant if the
weapon does not already “belong[] to a class of arms commonly used
102. Caetano, 577 U.S. at 411 (per curiam) (emphasis added) (quoting Com-
monwealth v. Caetano, 26 N.E.3d 688, 693 (Mass. 2015)).
103. Id. at 412 (quoting Heller, 554 U.S. at 582).
104. Id.; see also id. (“By equating ‘unusual’ with ‘not in common use at the
time of the Second Amendment’s enactment,’ the court’s second explanation is the
same as the first; it is inconsistent with Heller for the same reason.”).
105. Id.
106. Id. at 420 (Alito, J., concurring). Thereafter, a district court held that evi-
dence of only “64,890 metal and wood nunchaku” constituted “common use.” Malo-
ney v. Singas, 351 F. Supp. 3d 222, 237, 238 (E.D.N.Y. 2018).
107. Caetano, 577 U.S. at 420 (Alito, J., concurring) (emphasis added).
108. See, e.g., Krawczyk, supra note 74, at 295, 299 (arguing that NFA-regulated
short-barreled rifles and silencers are “in common use,” conservatively numbering
532,725 and 2,664,774 at the time of writing, respectively). Accordingly, these NFA
regulations should be invalidated under Heller.
109. Caetano, 577 U.S. at 417 (Alito, J., concurring).
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for lawful purposes.”
110
The Justices did not elaborate on what sort of
“dangerousness” inquiry they envisioned, but they rejected the lower
court’s proposed standard as “sweep[ing] far too broadly.”
111
Second,
the Justices once again declined to articulate just what “unusualness”
might mean, other than reiterating their view that “unusual” is a
seeming antonym of “common.”
112
Most notably, the Caetano concurrence did not employ the typi-
cal originalist toolkit. Absent were the Founding-Era dictionaries,
writings, and cases that could have shed light on what “dangerous
and unusual” meant to those who ratified the Second Amendment.
5. New York State Rifle & Pistol Ass’n v. Bruen
The Supreme Court’s next pronouncement on the Second
Amendment, New York State Rifle & Pistol Ass’n v. Bruen,
113
was
far more thorough than Caetano, and it issued during a time of ram-
pant constitutional abuse. In the years following Heller, the lower
courts—almost all of which had gotten Heller’s threshold individual-
rights question wrong
114
—proceeded to apply the very interest-bal-
ancing tests that Heller had repudiated and the McDonald plurality
had “expressly rejected.”
115
Contrary to these precedents, the lower
courts had “coalesced around a ‘two-step’ framework for analyzing
Second Amendment challenges that combine[d] history with means-
end scrutiny.”
116
The lower courts’ first step purported to apply Heller by
employing a textual and historical analysis to determine whether
the Second Amendment protected the conduct at issue, as origi-
nally understood.
117
But if the lower courts decided such analysis was
“inconclusive,” their contrived second step often employed either
“intermediate scrutiny” or “strict scrutiny”—depending on whether
110. Id. at 418 (“[T]he relative dangerousness of a weapon is irrelevant when
the weapon belongs to a class of arms commonly used for lawful purposes.”).
111. Id.; see also id. at 417 (“[T]he court below held that a weapon is ‘dangerous
per se’ if it is ‘“designed and constructed to produce death or great bodily harm” and
“for the purpose of bodily assault or defense.”’”).
112. See id. at 419.
113. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
114. See District of Columbia v. Heller, 554 U.S. 570, 638 n.2 (2008) (Stevens, J.,
dissenting) (“Until the Fifth Circuit’s decision in United States v. Emerson, 270 F.3d
203 (2001), every Court of Appeals to consider the question had understood Miller
to hold that the Second Amendment does not protect the right to possess and use
guns for purely private, civilian purposes.”).
115. Id. at 634 (majority opinion) (declining to subject the Second Amendment
to “a freestanding ‘interest-balancing’ approach”); McDonald v. City of Chicago, 561
U.S. 742, 785 (2010) (plurality opinion).
116. Bruen, 597 U.S. at 17.
1 1 7. See, e.g., Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019).
Dangerous and Unusual
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the challenged regulation “burdened” a “core” Second Amendment
right—to gauge the purported importance of the government’s inter-
est in violating the Second Amendment.
118
In other words: judgment
call, after judgment call, after judgment call.
Bruen once again set the record straight. Directing the lower
courts back to first principles, the Supreme Court held that the two-
step framework was “one step too many” despite its “popularity”
post-Heller.
119
In this two-step framework’s place, the Court explained
that, “[i]n keeping with Heller,” courts should analyze constitutional
text, as informed by historical understanding, and proceed no fur-
ther.
120
Accordingly, the Court articulated the following standard for
Second Amendment challenges:
[W]hen the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. To
justify its regulation, the government may not simply posit that
the regulation promotes an important interest. Rather, the govern-
ment must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation. Only if a firearm
regulation is consistent with this Nation’s historical tradition may
a court conclude that the individual’s conduct falls outside the Sec-
ond Amendment’s “unqualified command.”
121
In other words, if a member of “the people” wishes to engage in
conduct involving the “keep[ing]” or “bear[ing]” of “Arms” and gov-
ernmental action so much as “regulat[es]” that conduct, then the gov-
ernmental action is presumed unconstitutional at the outset.
122
“Only if”
the government bears its historical burden of proving consistency with
a national tradition of similar regulation may a court uphold the regu-
lation at issue. If the government fails to do so, the individual prevails.
The Court then analyzed the Second Amendment’s text with
respect to the conduct at issue—the public carry of handguns for
self-defense, which New York had all but prohibited via a discre-
tionary “may issue” licensing regime where applicants had to show
118. Bruen, 597 U.S. at 18–19. One district court’s explanation of the anti-Heller
two-part test is particularly striking, as it highlights the utter meaninglessness and
unpredictability of interest balancing: “For a Second Amendment challenge, the
Ninth Circuit uses what might be called a tripartite binary test with a sliding scale
and a reasonable fit.” Duncan v. Becerra, 265 F. Supp. 3d 1106, 1117 (S.D. Cal. 2017),
aff ’d, 742 F. App’x 218 (9th Cir. 2018).
119. Bruen, 597 U.S. at 19.
120. Id. at 17.
121. Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
122. See also James Huffman, The Presumption of Constitutionality and the
Demise of Economic Liberties, 128 Dick. L. Rev. 1, 2 (2023) (arguing that “the Con-
stitution allows for no hierarchy of rights or peoples and therefore requires a default
presumption of unconstitutionality”).
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a “special need for self-protection distinguishable from that of the
general community.”
123
Noting that it was “undisputed” that “ordi-
nary, law-abiding, adult citizens” belong to “the people” the Second
Amendment protects, the Court likewise found it undisputed “that
handguns are weapons ‘in common use’ today for self-defense.”
124
The Court also had “little difficulty concluding” the “bear[ing]” of
“Arms” extended outside the home.
125
Observing that “[n]othing in
the Second Amendment’s text draws a home/public distinction”
126
and applying Heller’s conclusion that “to bear” meant “to wear, bear,
or carry,”
127
the Court concluded that the “definition of ‘bear’ natu-
rally encompasses public carry.”
128
Accordingly, the Second Amend-
ment “presumptively guarantee[d]” the right to public carry, and the
New York law was presumed unconstitutional.
129
Bruen’s textual inquiry is notable for two reasons. At first blush,
it appeared to situate Heller’s “common use” standard at the text,
which would have saddled challengers of firearm regulations with
applying a presently undefined, eye-of-the-beholder test.
130
But for
the reasons discussed in Section II.A., infra, such an interpretation
misreads the Court’s precedents. Second, the textual inquiry is not
a discrete “step.” Recall that the Court repudiated the notion of a
“two-step approach,” describing it as “one step too many.”
131
Prop-
erly understood, Heller and Bruen adopted a one-step approach:
constitutional “text, as informed by history.”
132
Consequently, given
the Supreme Court’s existing analyses of the Second Amendment’s
plain text, a court’s textual analysis ought to be little more than a
subject-matter qualifier,
133
to the effect of the following question: Are
we dealing with a firearm regulation, or something else? Obviously, a
right-to-counsel case falls outside the Second Amendment’s scope. A
challenge to a gun law does not.
123. Bruen, 597 U.S. at 12.
124. Id. at 31, 32 (quoting District of Columbia v. Heller, 554 U.S. 570, 580, 627
(2008)).
125. Id. at 32.
126. Id. Nor does it draw any locational distinction, for that matter.
127. Heller, 554 U.S. at 584.
128. Bruen, 597 U.S. at 32.
129. Id. at 33.
130. See, e.g., McWilliam, supra note 75, at 1 (collecting cases) (“Many courts
cite the common use standard as a limitation on the amendment’s plain text and
what it ‘presumptively protects.’”); Krawczyk, supra note 74, at 276 n.9, 305–06 (pre-
viously assuming “common use” to be the challenger’s burden to bear).
131. Bruen, 597 U.S. at 19.
132. Id.
133. See Brief of Amici Curiae Cal. Rifle & Pistol Ass’n et al. in Support of
Neither Party and Reversal or Remand at 12, United States v. Kittson, No. 23-4132
(9th Cir. May 17, 2024), ECF No. 16.
Dangerous and Unusual
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Bruen’s historical analysis also bears emphasis for a number
of methodological precepts. First, the Court appeared to bifurcate
the appropriate historical analysis depending on whether a firearm
regulation purportedly addresses “a general societal problem that
has persisted since the 18th century.”
134
In such a case, “the lack of a
distinctly similar historical regulation addressing that problem is rel-
evant evidence that the challenged regulation is inconsistent with the
Second Amendment,” and “if earlier generations addressed the soci-
etal problem, but did so through materially different means, that also
could be evidence that a modern regulation is unconstitutional.”
135
For example, the “societal problem” of urban crime using small,
concealable firearms has existed in one form or another since the
Founding. Indeed, regardless of the precise caliber, projectile, igni-
tion technology, or materials employed, a firearm’s size and atten-
dant concealability have been immutable physical features since the
tool’s inception. Now consider a modern regulation purporting to
address this “problem” of criminal concealability by placing greater
restrictions on smaller firearms via minimum barrel-length and over-
all-length requirements.
136
Because this “problem” is nothing new,
Bruen’s historical test would appear to seek Founding-Era regula-
tions also limiting barrel and overall lengths. If no such “distinctly
similar” historical tradition existed, Bruen’s apparent call for such
stringency would result in invalidation of the modern regulation.
137
Bruen characterized both Heller’s and its own historical analysis
as examples of such “straightforward historical inquiry.”
138
Identify-
ing the perceived societal problem as “firearm violence in densely
populated communities”—a problem persisting today—the Court
observed that no Founding-Era regulation banned the domestic or
public possession of handguns in response.
139
Therefore, the District
of Columbia’s handgun ban failed for lack of a distinctly similar
134. Bruen, 597 U.S. at 26.
135. Id. (emphasis added); id. at 26–27.
136. See 26 U.S.C. § 5845(a) (NFA restricting short-barreled rifles); Factor-
ing Criteria for Firearms with Attached “Stabilizing Braces,” 88 Fed. Reg. 6478,
6572 tbl.1 (Jan. 31, 2023) (to be codified at 27 C.F.R. pts. 478, 479) (justifying this
restriction because short-barreled rifles “are easily concealable from the public and
first responders” and therefore apparently are susceptible to “criminal use”). But
see 2019 Crime in the United States: Expanded Homicide Data Table 8, FBI (2019),
tinyurl.com/4psmrnvm [https://perma.cc/85XZ-YYPX] (reporting that crime
with any type of rifle is an order of magnitude rarer than crime with handguns).
137. See, e.g., Krawczyk, supra note 74, at 306 n.196 (arguing that “the Govern-
ment will have great difficulty pointing to a Founding-era tradition of restricting
short-barreled firearms, accessories, and even military-type arms, which remained
unregulated until 1934”).
138. Bruen, 597 U.S. at 27.
139. Id.
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historical tradition, as did New York’s requirement of “proper cause”
as a prerequisite to public carry.
In contrast, the Court contemplated “other cases implicating
unprecedented societal concerns or dramatic technological changes
[that] may require a more nuanced approach.”
140
“When confront-
ing such present-day firearm regulations,” which were unimaginable
to the Founders and not at issue in Bruen,
141
the Court appeared to
endorse a loosening in analytical stringency by welcoming analogy.
142
Thus, courts could apply the Founding-Era regulatory tradition to
new and unprecedented cases,
143
guided by the requirement that pur-
ported historical analogues need only be “relevantly similar” but not
distinctly so.
144
To that end, the Court identified two metrics of rel-
evant similarity—the “how” and the “why” of purported analogues,
or their mechanisms and motivations, which must align with those of
a challenged regulation to be analogous.
145
And even at the Court’s
most charitable use of this lesser analogical standard, New York’s
proffered analogues still could not pass muster.
146
The second methodological precept bearing emphasis is the
numerosity of historical regulations necessary to uphold a modern
140. Id.
14 1. Id. at 28. Note that Bruen did not consider modern advancements in hand-
gun technology to be “unprecedented” or “dramatic” so as to demand analogical
reasoning at the outset. On the contrary, factors like increased magazine capacity,
effective range, and terminal performance were of no moment to construing the
“societal problem” to be urban violence.
142. See id.
143. Perhaps, for example, the prospect of a man-portable and thus “bear-
able” nuclear weapon. See Bevis v. City of Naperville, 85 F.4th 1175, 1182 (7th Cir.
2023) (discussing the “M388 Davy Crockett system, with its 51-pound W54 war-
head, . . . light enough for one person to carry”). Whether right or wrong, there is
little doubt a court would find an appropriate Founding-Era analogue to uphold a
ban on the private possession of such a device. Perhaps a court would hold a bear-
able nuclear weapon to fall outside the “ordinary military equipment” that a typical
infantryman would be tasked with carrying. See United States v. Miller, 307 U.S. 174,
178 (1939). Or perhaps a court would hold Founding-Era gunpowder storage laws
enacted for “fire-safety reasons” to be analogous enough. See District of Columbia
v. Heller, 554 U.S. 570, 684 (2008) (Breyer, J., dissenting). Indeed, Founding-Era gun-
powder was highly volatile compared to the smokeless powder in use today, and the
Founders mitigated the risks of inadvertent combustion and indiscriminate dam-
age. Thus, irrespective of whether the Founders would have sanctioned the citizen
ownership of nuclear weapons today, it seems unlikely that a court would find no
analogue whatsoever, no matter how attenuated.
144. Bruen, 597 U.S. at 29 (emphasis added).
145. Id.; see also Plaintiffs-Appellants’ Opening Brief at 26, McRorey v. Gar-
land, 99 F.4th 831 (5th Cir. 2024) (No. 23-10837) (one of the Authors utilizing this
alternative terminology in briefing).
146. See Bruen, 597 U.S. at 50 (emphasis added) (“None of these restrictions
imposed a substantial burden on public carry analogous to the burden created by
New York’s restrictive licensing regime.”).
Dangerous and Unusual
8272025]
one. Indeed, because the Second Amendment applies nationwide,
Bruen demanded consistency with the “Nation’s historical tradition
of firearm regulation.”
147
In other words, a one-off historical law
found in a lone jurisdiction is an “outlier[]” that cannot shed light
on the original meaning of the Second Amendment.
148
Outliers are
the opposite of a “well-established and representative” example of a
regulatory tradition.
149
Thus, Bruen contemplates something more—a
widespread tradition fitting for the Second Amendment’s nationwide
reach.
And third, although properly understood as a consideration
under Bruen’s “how” metric for analogical reasoning, the Court has
emphasized that a mismatch between historical and modern punish-
ments can render a purported analogue irrelevant. Indeed, Heller
anticipated such analysis, explaining that historical laws imposing “a
small fine and forfeiture of the weapon (or in a few cases a very brief
stay in the local jail)” were disanalogous to a modern law imposing
“significant criminal penalties.”
150
Likewise, the Court did not “think
that a law imposing a 5-shilling fine and forfeiture of the gun would
have prevented a person in the founding era from using a gun to
protect himself or his family from violence, or that if he did so the
law would be enforced against him.”
151
Such inquiry necessarily falls
under Bruen’s “how,” which requires “a comparable burden on the
right of armed self-defense” for an analogue to be relevant.
152
Indeed,
the Court recently described “the penalty” as “another relevant
aspect of the burden.”
153
At bottom, if Heller was not clear enough as to its constitutional
test, Bruen course-corrected. If a court is to uphold a regulation of
the right to keep and bear arms, such regulation must comport with
constitutional text and early American history. And as to the scope of
protected “Arms,” Bruen elaborated that the Second Amendment’s
“general definition covers modern instruments that facilitate armed
self-defense,” and the Court “use[s] history to determine which mod-
ern ‘arms’ are protected.”
154
Even so, the Court observed that even
previously “dangerous and unusual” weapons, whatever they are,
could enjoy protection if they “are unquestionably in common use
1 4 7. Id. at 17 (emphasis added).
148. Id. at 65.
149. Id. at 30 (emphasis added); see also id. at 67, 69 (discounting “localized”
regulations affecting only small percentages of the U.S. population, “transitory” reg-
ulations, and those “held unconstitutional shortly after passage”).
150. District of Columbia v. Heller, 554 U.S. 570, 633 (2008).
15 1. Id. at 633–34.
152. Bruen, 597 U.S. at 29.
153. United States v. Rahimi, 602 U.S. 680, 682 (2024).
154. Bruen, 597 U.S. at 28.
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today.”
155
Yet aside from these clarifications of Heller, Bruen ulti-
mately concerned handguns, a now-familiar arm in the Court’s lim-
ited caselaw.
6. United States v. Rahimi
Just last year, the Supreme Court issued its follow-up to Bruen
in United States v. Rahimi.
156
This appeal questioned the constitution-
ality of a federal law prohibiting the possession of firearms during
the pendency of a domestic violence restraining order.
157
The Court
upheld this prohibition facially with a significant eight-Justice major-
ity, citing Bruen for “the appropriate analysis.”
158
Even so, the Court had some additional observations. Nota-
bly, the Court once again emphasized that the Second Amendment
“extends, prima facie, to all instruments that constitute bearable arms,
even those that were not [yet] in existence” at the Founding.
159
Citing
Sir William Blackstone, the Court also made the passing observa-
tion that “[s]ome” Founding-Era “jurisdictions banned the carrying
of ‘dangerous and unusual weapons.’”
160
Additionally, the Court char-
acterized Bruen’s analysis as involving consideration of “whether the
155. Id. at 47.
156. United States v. Rahimi, 602 U.S. 680 (2024).
1 5 7. As an aside best relegated to this footnote, Rahimi was in some sense an
assault-weapon case, although in the most casual sense. As the Court recounted,
police had found Rahimi in possession of “a pistol, a rifle, [and] ammunition” while
“subject to a domestic violence restraining order,” which precipitated his indict-
ment and subsequent conviction under 18 U.S.C. § 922(g)(8). Rahimi, 602 U.S. at
688. Interestingly, the “rifle” in question was a Century Arms C308 Sporter, a semi-
automatic rifle with a threaded barrel, detachable box magazine, and protruding
pistol grip—a quintessential “assault weapon” under the laws of the few jurisdic-
tions that ban them. See Joint Appendix at 13, Rahimi, 602 U.S. 680 (No. 22-915);
cf. Owner’s Manual C308 RIFLE Cal. .308, Century Arms 5, 8, tinyurl.com/
ue76mw9c [https://perma.cc/SCQ5-R58V] (last visited Mar. 30, 2025). The United
States never disputed this “assault weapon’s” constitutional protection, a stunning
oversight by an administration that campaigned on banning such rifles. See United
States v. Rahimi, 61 F.4th 443, 454 (5th Cir. 2023) (“[I]t is undisputed that the types of
firearms that Rahimi possessed . . . fall within the scope of the amendment.”), rev’d
on other grounds, 602 U.S. 680 (2024); Brief in Opposition at 10, Rahimi, 602 U.S. 680
(No. 22-915) (“The Government has never contended that either weapon fell out-
side the scope of the Second Amendment.”); cf. Paul Steinhauser, Biden Says He’s
Coming for Assault Weapons, as 2020 Dems Urge New Ban in Wake of Shootings,
FOX News (Aug. 6, 2019, 1:01 PM), tinyurl.com/mrywwezf [https://perma.cc/
MEN9-TZS2]; see also The Commonwealth’s Gun Rights, The Govt’s Rahimi Mis-
take Can Undo the NFA and Assault-Weapon Bans!!, YouTube, at 2:09 (Sept. 26,
2023), tinyurl.com/68pku2mh [https://perma.cc/E8GJ-FUSG] (Authors
reporting this finding during merits-stage briefing in Rahimi).
158. Rahimi, 602 U.S. at 692.
159. Id. at 691 (alteration in original) (quoting District of Columbia v. Heller,
554 U.S. 570, 582 (2008)).
160. Id.
Dangerous and Unusual
8292025]
challenged regulation is consistent with the principles that underpin
our regulatory tradition.”
161
Interestingly, while Bruen appeared to distinguish between cases
involving longstanding societal problems (seeking “distinct similar-
ity”) and cases posing novel and unimaginable problems (authoriz-
ing “relevant similarity”), Rahimi proceeded directly to an analogical
inquiry without explaining why. Indeed, although domestic violence
certainly existed at the Founding, the Court did not seek distinctly
similar historical regulations.
162
Instead, the Court extracted a “prin-
ciple” from different Founding-Era laws—that, “[w]hen an individual
poses a clear threat of physical violence to another, the threatening
individual may be disarmed”—and concluded that the challenged
regulation comported with that principle.
163
Whatever the ratio-
nale for this analytical choice, the Court made the limited reach of
its holding clear, concluding “only” that “[a]n individual found by a
court to pose a credible threat to the physical safety of another may
be temporarily disarmed consistent with the Second Amendment.”
164
Thus, it appears that Bruen’s bifurcation of analysis remains viable
unless explicitly overruled.
B. The Controlling Historical Time Period for Understanding
Original Meaning
While it is clear that courts must apply a textual and historical
standard to Second Amendment challenges, a question arises as to
which historical time period should guide such analysis. When the
Founders ratified the Second Amendment in 1791, they understood
it to bind the federal government only. It was not until the Recon-
struction Era, and particularly the year 1868, when the Fourteenth
Amendment incorporated Bill of Rights protections against the
states. Thus, in a Second Amendment challenge to federal action, one
16 1. Id. at 692; see also id. (“The law must comport with the principles underly-
ing the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’”).
162. See id. at 695–96.
163. Id. at 698. The Court relied on Founding-Era “surety and going armed
laws” to uphold the challenged regulation. Id. Surety laws required an individual
credibly accused of threatening violence to pay a bond as an assurance that they
would refrain from engaging in such behavior. Payment of the surety bond allowed
the individual to keep their firearms. In contrast, so-called “going armed” laws were
a far more general prohibition against the public brandishing of firearms to the ter-
ror of those nearby. See id. at 695–98. However, neither category operated quite
like the challenged regulation, which prohibits the possession of firearms during the
pendency of a domestic violence restraining order without providing any mechanism
for the accused to retain their firearms. See 18 U.S.C. § 922(g)(8). Even so, the Court
thought this modern regulation “fit[] neatly within the tradition the surety and going
armed laws represent.” Rahimi, 602 U.S. at 698 (emphasis added).
164. Rahimi, 602 U.S. at 702 (emphasis added).
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logically would examine Founding-Era regulations to illuminate the
scope of the right against the federal government. And in a challenge
to state action, one may be tempted to examine Reconstruction Era
firearm regulations instead of those in place at the Founding. But if
the protections against federal and state action are to be uniform,
one time period must take precedence over the other.
Despite considerable discussion of the proper temporal focal
point for historical analysis in its Second Amendment cases, the
Supreme Court has yet to definitively decide the question. Indeed, in
Bruen, the Court acknowledged an “ongoing scholarly debate” on the
proper time period, perhaps one in which this Article is now taking
part.
165
But, in a characteristic display of judicial restraint, both Bruen
and Rahimi ultimately declined to decide this 1791-versus-1868 ques-
tion, concluding that it would not have made a difference in either
case.
166
Yet this question remains exceptionally important, as the
body of historical firearm regulations in place at the Founding—and
therefore the available analogues to justify governmental action—is
significantly smaller than that of the Reconstruction Era.
167
Thus, a
1791-centric period of inquiry will favor the challenger of a firearm
regulation, while an 1868-centric period will favor the government.
168
The proper temporal focal point therefore will make a difference in
future cases.
169
And with respect to the scope of protected “Arms,”
Founding-Era authorities are quite clear on the term’s expansive
reach.
Even so, the Supreme Court’s existing Bill of Rights prece-
dents all but establish the Founding Era as the controlling histori-
cal time period, with subsequent history playing a merely secondary,
165. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 37 (2022).
166. See id. at 38 (“We need not address this issue today because, as we explain
below, the public understanding of the right to keep and bear arms in both 1791 and
1868 was, for all relevant purposes, the same with respect to public carry.”); Rahimi,
602 U.S. at 692 n.1 (“The same is true here.”).
1 6 7. This growth in the number and kinds of gun laws on the books is inherent
to the passage of time.
168. Compare Lara v. Comm’r Pa. State Police, 125 F.4th 428, 441 (3d Cir. 2025)
(holding “that the constitutional right to keep and bear arms should be understood
according to its public meaning in 1791” and striking a firearm regulation), with
NRA v. Bondi, 61 F.4th 1317, 1322 (11th Cir.) (claiming that “historical sources from
the Reconstruction Era are more probative of the Second Amendment’s scope than
those from the Founding Era” and upholding a firearm regulation), vacated, reh’g
en banc granted, 72 F.4th 1346 (11th Cir. 2023). The Eleventh Circuit later corrected
this erroneous temporal holding. NRA v. Bondi, No. 21-12314, 2025 WL 815734, at
*4 (11th Cir. Mar. 14, 2025) (“For purposes of this appeal, the Founding era is the
primary period against which we compare the Florida law.”).
169. See Bruen, 597 U.S. at 82 (Barrett, J., concurring); see also Rahimi, 602 U.S.
at 745–46 (Jackson, J., concurring) (describing the appropriate “historical era . . . to
divine a historical tradition of gun regulation” as a “key question[]”).
Dangerous and Unusual
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confirmatory role. Beginning with Heller, the Court explained that
“[c]onstitutional rights are enshrined with the scope they were
understood to have when the people adopted them,” and post-Civil
War “discussions[,] [which] took place 75 years after the ratification
of the Second Amendment[,] . . . do not provide as much insight
into its original meaning as earlier sources.”
170
Thereafter, a major-
ity of the Court in McDonald declined to “apply different standards
‘depending on whether the claim was asserted in a state or federal
court,’” calling such a proposition “incongruous.”
171
Likewise, the
majority declined to adopt “the notion that the Fourteenth Amend-
ment applies to the States only a watered-down, subjective version of
the individual guarantees of the Bill of Rights.”
172
Bruen further confirmed this understanding, cautioning “against
giving postenactment history more weight than it can rightly bear.”
173
Indeed, while Bruen declined to expressly hold 1791 as the Second
Amendment’s temporal focal point, its analysis tells a different story.
Despite invalidating state action, the Court noted generally that,
“to the extent later history contradicts what the text says, the text
controls,” and more specifically that “postratification adoption or
acceptance of laws that are inconsistent with the original meaning
of the constitutional text obviously cannot overcome or alter that
text.”
174
Bruen thus “generally assumed that the scope of the pro-
tection applicable to the Federal Government and States is pegged
to the public understanding of the right when the Bill of Rights was
adopted in 1791,” not 1868.
175
Accordingly, Bruen treated “19th-cen-
tury evidence” as “mere confirmation of what the Court thought had
already been established,” declining to “address” it or “20th-century
evidence” when “contradict[ing] earlier evidence.”
176
Rahimi did not deviate. Although a challenge to federal action
undeniably “pegged”
177
to the 1791 time period, Rahimi issued
broadly applicable methodological statements with a consistent
focus on Founding-Era practice.
178
Indeed, Rahimi observed that,
170. District of Columbia v. Heller, 554 U.S. 570, 634–35, 614 (2008).
17 1. McDonald v. City of Chicago, 561 U.S. 742, 765 (2010) (majority opinion)
(quoting Malloy v. Hogan, 378 U.S. 1, 11 (1964)).
172. Id. (quoting Malloy, 378 U.S. at 10–11).
173. Bruen, 597 U.S. at 35.
174. Id. at 36 (quoting Heller v. District of Columbia, 670 F.3d 1244, 1274 n.6
(D.C. Cir. 2011) (Kavanaugh, J., dissenting)).
175. Id. at 37 (emphases added).
176. Id. (emphasis added) (quoting Gamble v. United States, 587 U.S. 678, 702
(2019)); id. at 66 n.28.
1 7 7. Id. at 37 (“Strictly speaking, New York is bound to respect the right to
keep and bear arms because of the Fourteenth Amendment, not the Second.”).
178. See United States v. Rahimi, 602 U.S. 680, 690–92, 694, 698 (2024).
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“[e]ven when a law regulates arms-bearing for a permissible
reason, . . . it may not be compatible with the right if it does so to an
extent beyond what was done at the founding.”
179
The Supreme Court’s other Bill of Rights precedents all follow a
similar track, consistently grounding analysis at the Founding and uti-
lizing earlier and later history to confirm—but never override—the
original public understanding. This interpretive methodology flows
from even the Court’s early 20th-century cases, which stand for the
proposition that the Constitution’s meaning “does not alter” depend-
ing on the sovereign, and “[t]hat which it meant when adopted it
means now.”
180
In other words, there is “no daylight between the fed-
eral and state conduct” an incorporated Bill of Rights provision “pro-
hibits or requires.”
181
Thus, in all manner of First,
182
Fourth,
183
Fifth,
184
Sixth,
185
and Eighth Amendment cases,
186
the Court already has done
precisely that which remains to be decided for the Second Amend-
ment—an Amendment that is not “subject to an entirely different
body of rules than the other Bill of Rights guarantees.”
187
And this
uniform approach shows no signs of changing. In a First Amendment
case decided just days after Bruen, the Court observed that, in a chal-
lenge to state action, the “line” courts must draw under the Establish-
ment Clause must “accor[d] with history and faithfully reflec[t] the
understanding of the Founding Fathers.”
188
Some may argue that it “would be illogical”
189
to bind the states to
an understanding of the Second Amendment that may not have lasted
into Reconstruction. But to hold otherwise would suggest two alterna-
tive and equally untenable outcomes—that the Second Amendment
provides lesser protection against the states than it does the federal
179. Id. at 692 (emphasis added).
180. South Carolina v. United States, 199 U.S. 437, 448 (1905).
18 1. Timbs v. Indiana, 586 U.S. 146, 150 (2019).
182. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 674 (1984); Espinoza v. Mont.
Dep’t of Revenue, 591 U.S. 464, 482 (2020) (emphasis added) (observing that “a
tradition” that “arose in the second half of the 19th century,” even in “more than 30
States,” “cannot by itself establish an early American tradition”).
183. See, e.g., Virginia v. Moore, 553 U.S. 164, 168 (2008).
184. See, e.g., Gamble v. United States, 587 U.S. 678, 683–85 (2019).
185. See, e.g., Ramos v. Louisiana, 590 U.S. 83, 91 (2020); see also Crawford v.
Washington, 541 U.S. 36, 54 (2004) (emphasis added) (examining the “historical
record” in a Sixth Amendment challenge to state action and “admitting only those
exceptions established at the time of the founding”).
186. See, e.g., Timbs, 586 U.S. at 152.
1 8 7. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022) (quoting
McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (majority opinion)).
188. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022); id. at 536 (altera-
tions in original) (emphasis added).
189. NRA v. Bondi, 61 F.4th 1317, 1324 (11th Cir.), vacated, reh’g en banc granted,
72 F.4th 1346 (11th Cir. 2023).
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8332025]
government,
190
or, if the protection is indeed equivalent among sov-
ereigns, that the Reconstruction Era retroactively sheds light on the
Second Amendment’s protections against federal action.
191
But the
Second Amendment is no font of rights subject to historical change.
192
It is a codification of “a pre-existing right” originating in English com-
mon law and effectuating the natural right to self-defense.
193
The Sec-
ond Amendment’s meaning therefore remains the same throughout
time. The fact that the Reconstruction Generation lost sight of this
meaning has no bearing on the Amendment’s scope.
Indeed, as Justice Kavanaugh recently observed, “history can be
probative of what the Constitution does not mean,” and “many pro-
visions of the Constitution . . . depart from rather than adhere to cer-
tain pre-ratification laws, practices, or understandings.”
194
Of course,
the Reconstruction Era saw mass noncompliance with the Constitu-
tion, as Southern states “systematically thwarted” newly freed slaves’
rights to keep and bear arms.
195
This racially motivated oppression
persisted well into the early 20th century. Describing the disparate—
and, indeed, discriminatory—enforcement of a state gun control law
in 1941, Florida Supreme Court Justice Rivers Buford observed:
I know something of the history of this legislation. The original Act
of 1893 was passed when there was a great influx of negro labor-
ers in this State drawn here for the purpose of working in turpen-
tine and lumber camps. The same condition existed when the Act
was amended in 1901 and the Act was passed for the purpose of
disarming the negro laborers and to thereby reduce the unlawful
190. But see Timbs, 586 U.S. at 150.
Incorporated Bill of Rights guarantees are “enforced against the States
under the Fourteenth Amendment according to the same standards that
protect those personal rights against federal encroachment.” Thus, if a Bill
of Rights protection is incorporated, there is no daylight between the fed-
eral and state conduct it prohibits or requires.
Id. (citation omitted).
19 1. But see United States v. Rahimi, 602 U.S. 680 (2024) (focusing singularly on
the Founding Era in a challenge to federal action).
192. Of course, there is a way to change what the Constitution means, but that
requires an amendment. See U.S. Const. art. V. In a humorous turn of events relevant
to this Article’s broader argument, California Governor Gavin Newsom recently
proposed a constitutional amendment that would codify a ban on the “civilian pur-
chase of assault weapons,” which he declared to be “weapons of war.” Governor
Newsom Proposes Historic 28th Amendment to the United States Constitution to End
America’s Gun Violence Crisis, Governor Gavin Newsom (June 8, 2023), https://
tinyurl.com/2u3vb5hw [https://perma.cc/BW7U-HTMA]. But if it would take a con-
stitutional amendment to ban “weapons of war,” that is relevant evidence that the
Second Amendment currently protects them.
193. District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
194. Rahimi, 602 U.S. at 720 (Kavanaugh, J., concurring).
195. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 60 (2022).
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homicides that were prevalent in turpentine and saw-mill camps
and to give the white citizens in sparsely settled areas a better feel-
ing of security. The statute was never intended to be applied to the
white population and in practice has never been so applied.
196
It seems much more likely that the Fourteenth Amendment’s
incorporation of the Second Amendment against belligerent states
was a repudiation of the firearm regulations of the time, not a ringing
endorsement of them. If anything, “19th-century . . . selective or pre-
textual enforcement” practices
197
ought to taint Reconstruction Era
firearm regulations with a presumption of nonprobative meaning.
198
Holding both the federal government and the states to the same 1791
focal point therefore presents no logical quandary. As Justice Thomas
put it, the Constitution “does not merely narrow the Government’s
regulatory power. It is a barrier, placing the right to keep and bear
arms off limits to the Government.”
199
All this methodological exposition may seem out of place in an
Article titled after historical regulations of “dangerous and unusual
weapons.” But setting the appropriate time period for Second Amend-
ment analysis is critical to determining what this term does and does
not mean. Indeed, as explained in Section II.B., infra, the Founding-
Era tradition with respect to “dangerous and unusual weapons” is
outcome-determinative—such tradition supports no prohibitions on
the mere possession of bearable arms, “military” or otherwise.
C. A Principled Second Amendment Methodology
The foregoing Second Amendment precedents support three
different analytical routes for “when the Government regulates
arms-bearing conduct.”
200
First, if a firearm regulation simply bans
“the people” from “keep[ing]” or “bear[ing] Arms,” the Second
Amendment’s text controls with no further inquiry necessary.
Indeed, it would seem odd for a law flatly contravening the Second
Amendment to be subject to historical analysis when the text is so
clear. Properly understood, a court conducts historical analysis when
it is necessary to elucidate the original meaning of one or more of
a provision’s terms. If there is no ambiguity, “the text controls.”
201
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Some courts have described this sort of analysis of “the rare law that
‘destroys’ the right” as “Heller-style per se invalidation.”
202
Second, if a weapon is unquestionably “in common use,” the
people’s preferences prevail, and the weapon simply cannot be
restricted regardless of even Founding-Era regulation to the contrary.
In other words, “common use” is sufficient but not necessary to mount
a successful challenge to an “arms ban,”
203
and a challenger need not
prove “common use” in order for the government to bear its histori-
cal burden. Although deciding that certain firearms are “common”
invites some arbitrariness, such line-drawing is permissible because it
does not prejudice the individual.
204
Rather, it merely offers an alter-
native means of protection from regulation. Finally, although the
Supreme Court has not described a numerical threshold that may
suffice, it has suggested that 200,000 examples of a particular weapon
will constitute “common use.”
Third, all challenges to firearm regulations other than “arms
bans” and all “arms bans” involving weapons that are not unques-
tionably “in common use” are subject to the Heller-Bruen textual and
historical test. These firearm regulations are presumed unconstitu-
tional at the outset. Only affirmative proof of a Founding-Era histori-
cal tradition of similar regulation can save such firearm regulations
from invalidation. Although the Court’s precedents leave open more
than one option for invalidating a firearm regulation, the Court was
clear that only one option exists to uphold a firearm regulation—
historical tradition.
205
With these precedents properly situated, this Article now turns
to the Court’s assumed historical tradition of “bann[ing] the carrying
of ‘dangerous and unusual weapons.’”
206
202. See, e.g., Peruta v. County of San Diego, 742 F.3d 1144, 1170 (9th Cir. 2014).
203. In a previous work, one of the Authors described “common use” as
appearing to be a challenger’s textual burden under Bruen. See Krawczyk, supra
note 74, at 276 n.9, 305–06. That description was incorrect, and this Article rejects
that proposition.
204. Indeed, any departure from a strict historical application must inure to the
benefit of the individual. To hold otherwise and allow restrictions on the rights of
individuals would be contrary to the very purpose of the constitutional right, which
is to guarantee a pre-existing right against future, shifting political whims. As legal
scholar and former Virginia judge St. George Tucker observed after the Founding of
our country, “the right to keep[] and bear arms . . . [i]s the true palladium of liberty.”
1 William Blackstone, Blackstone’s Commentaries pt. 1, app. at 300 (St. George
Tucker ed., 1803). Any such “shortcut” therefore must be construed to the benefit of
individual rights.
205. Bruen, 597 U.S. at 17 (emphases added) (“Only if a firearm regulation is
consistent with this Nation’s historical tradition may a court conclude that the indi-
vidual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”).
206. United States v. Rahimi, 602 U.S. 680, 691 (2024).
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II. Historical Regulations of Conduct with
“Dangerous and Unusual Weapons” Do Not
Support Modern Bans on Firearm Possession
If the “common use” standard is a limitation on the Second
Amendment’s very scope, then it is an atextual and ahistorical pop-
ularity veto. The only support ever identified for such a proposed
limitation—the historical regulation of “dangerous and unusual
weapons”—fails the very historical test Heller and Bruen endorsed.
The following discussion highlights four reasons why governments
and courts cannot rely on regulations of “dangerous and unusual
weapons” to limit the scope of protected “Arms.”
First, not even the Supreme Court’s current precedents support
a commonality or unusuality limitation on the Second Amendment’s
textual scope. To the contrary, Heller and Bruen make clear that if
a weapon can be worn on the person or carried in the hand, then
it is presumptively protected and the government bears the burden
of proving its regulation is constitutional. If a governmental litigant
wishes to invoke the historical tradition of regulating the carrying of
“dangerous and unusual weapons,” then that is its burden to bear.
Second, historical regulations of “dangerous and unusual weap-
ons” only ever reached the public, open carry of weapons in a man-
ner that caused public terror and a breach of the peace. At no point
did the Founders ever regulate the mere ownership or simple pos-
session of “dangerous and unusual weapons.” Consequently, under
Bruen’s existing analogical guidance, a limited regulation of public
carry is no analogue for a broader prohibition on ownership or pos-
session of weapons today.
Third, historical evidence suggests that, as used in the term
“dangerous and unusual,” the Founders understood unusuality as a
synonym for disproportionality. Thus, rather than regulate the car-
rying of rare or uncommon weapons, the Founders prohibited the
use of weapons in circumstantially unjustified and disproportion-
ate ways—like the public brandishing of firearms without any self-
defense justification.
Fourth, even if the term “dangerous and unusual weapons”
reached particular types of rare or uncommon weapons, the Found-
ers never intended such a limitation to cover military weapons. With
respect to military weapons, the Founders were clear—in order to
deter the inevitable tyrannical ambitions of government, American
citizens must be peers with their government’s foot soldiers. To that
end, the Founders never would have endorsed the reservation of
arms like machineguns for governmental use. There is no historical
Dangerous and Unusual
8372025]
basis for the continued restriction of citizen access to modern mili-
tary weapons that may be worn on the person or carried in the hand.
Some of these conclusions may offend modern sensitivities. But
sensitivities are products of their time. And in our time, a great many
laws and regulations have departed from constitutional text and his-
torical understanding. If original meaning is to have any meaning at
all, modern misapprehensions should be corrected.
A. A Weapon’s Presumptive Textual Protection Does Not Turn on
“Common Use,” but Rather Whether It Is “Bearable”
The first and perhaps most glaring misreading of the Founders’
regulation of “dangerous and unusual weapons” is a methodological
error plaguing courts and governmental litigants alike. Latching onto
Heller’s passing reference to these historical regulations, some courts
and litigants have sought to immunize regulations of various weap-
ons from historical analysis simply by declaring such weapons “dan-
gerous and unusual.” Phrased alternatively, these entities believe that
a weapon must be “in common use” in order to proceed to historical
analysis, and that proving “common use” is the challenger’s textual
burden. Under this approach, certain weapons simply fall outside
of the Second Amendment’s threshold textual scope by virtue of
their apparent unusuality or rarity, even though they are bearable—
that is, able to be worn on the person or carried in the hand. This
approach is dead wrong, and it is inconsistent with the Supreme
Court’s precedents.
Rejecting one such transparent effort to absolve the government
of its historical burden, a now-vacated Ninth Circuit panel opinion
stated:
[W]e . . . reject Hawaii’s argument that the purported “dangerous
and unusual” nature of butterfly knives means that they are not
“arms” as that term is used in the Second Amendment. Heller it-
self stated that the relevance of a weapon’s dangerous and unusual
character lies in the “historical tradition of prohibiting the carrying
of dangerous and unusual weapons.” It did not say that danger-
ous and unusual weapons are not arms. Thus, whether butterfly
knives are “dangerous and unusual” is a contention as to which
Hawaii bears the burden of proof in the second prong of the Bruen
analysis.
207
207. Teter v. Lopez, 76 F.4th 938, 949–50 (9th Cir. 2023) (citation omitted),
vacated, reh’g en banc granted, 93 F.4th 1150 (9th Cir. 2024), vacated as moot, 125
F.4th 1301 (9th Cir. 2025).
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More recently, the U.S. District Court for the District of Kansas
dispensed with a similar argument that machineguns are “dangerous
and unusual” and therefore fall outside of the Second Amendment’s
textual scope at the outset:
Heller, because it predates Bruen, however, certainly does not say
that the Second Amendment does not apply to bearable machine-
guns. It merely implies that restrictions on “dangerous and unusual
weapons” can be consistent with this nation’s history and tradition
of firearm regulation. This touches on what is now the second step
of Bruen, rather than the first step. Suffice it to say that the weap-
ons at issue in this case are bearable arms that, under Bruen’s first
step, are covered by the plain text of the Second Amendment. The
court thus proceeds to the second step in the analysis.
208
Both courts correctly applied Heller and Bruen.
209
As Heller
made abundantly clear, “the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding.”
210
Likewise, Bruen
clarified that “that general definition covers modern instruments
that facilitate armed self-defense.”
211
These are words of presump-
tion
212
that comport with Bruen’s later observation that “we use his-
tory to determine which modern ‘arms’ are protected by the Second
Amendment.”
213
Of course, history remains the government’s burden to prove,
214
and the Supreme Court’s references to “dangerous and unusual weap-
ons” always have been in the context of a “historical tradition.”
215
Therefore, the Court’s cases point overwhelmingly in one direction—
that the Second Amendment presumptively protects all bearable
arms as a matter of plain text, and nothing more is needed for a chal-
lenger to make their textual showing.
208. United States v. Morgan, No. 6:23-cr-10047-JWB, 2024 WL 3936767, at *2
(D. Kan. Aug. 26, 2024).
209. To be sure, Morgan claimed that Bruen had more than one “step,” a char-
acterization that is inconsistent with Bruen itself. See Section I.A.5., supra. But irre-
spective of this semantic point, Morgan properly applied Bruen’s analytical structure.
210. District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (emphasis added).
211. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28 (2022) (emphasis
added).
212. Indeed, “prima facie” means “legally sufficient to establish a fact or a
case unless disproved.” Prima Facie, Merriam-Webster, tinyurl.com/2sujrr28
[https://perma.cc/6P9B-3AM8] (last visited Mar. 30, 2025) (emphasis added).
213. Bruen, 597 U.S. at 28 (emphasis added).
214. Id. at 17 (“[T]he government must demonstrate that the regulation is con-
sistent with this Nation’s historical tradition of firearm regulation.”).
215. See, e.g., Heller, 554 U.S. at 627.
Dangerous and Unusual
8392025]
B. The Founders Never Regulated the Mere Ownership or
Possession of “Dangerous and Unusual Weapons,” and to
Hold Otherwise Would Violate Bruen
Without fail, each time the Supreme Court has referred to his-
torical regulations of “dangerous and unusual weapons,” it has done
so in the context of carrying them.
216
Notably absent from these
authorities is any reference to acquisition, ownership, or possession—
predicate acts necessary to “carry” these weapons in the first place.
A closer examination of these historical regulations confirms that
the Founders only regulated certain public carry of “dangerous and
unusual weapons” and nothing more.
Based on this historical silence, early Americans still could own
and possess “dangerous and unusual weapons” generally. Indeed, in
the Authors’ experience litigating Second Amendment cases, at no
point has a governmental litigant or court ever identified—nor have
the Authors themselves found—any other Founding-Era regulation of
“dangerous and unusual weapons” reaching beyond public carry. Such
regulation of just one aspect of possession therefore offers no analogi-
cal support for modern restrictions on the broader ownership or simple
possession of weapons. To say that the Founders’ regulation of conduct
with a weapon supports a ban on the weapon itself is like saying a regu-
lation of where one could speak supports a ban on certain speech itself.
Sir William Blackstone’s Commentaries on the Laws of
England—a source the Court has cited repeatedly in support of its
“dangerous and unusual” pronouncements—sheds clarifying light on
just what sort of conduct these historical laws proscribed. In a chapter
entitled “Offences Against the Public Peace,” Blackstone collected
13 common-law offenses relating to various public disturbances,
including those involving “dangerous and unusual weapons.”
217
These
offenses all had a common theme—being “an actual breach of the
peace; or constructively so, by tending to make others break it.”
218
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In other words, each took place in public or involved interacting with
other people.
These offenses were: (1) “riotous assembling . . . and not dispers-
ing upon proclamation,”
219
(2) “unlawful hunting” in various public
places, “by night,” or “with painted faces,”
220
(3) sending anonymous
“letter[s] . . . demanding money, venison, or any other valuable thing,
or threatening . . . to kill any of the king’s subjects,”
221
(4) “pull[ing]
down or destroy[ing] any lock, sluice, or floodgate . . . on a navigable
river,”
222
(5) committing “affrays,” that is, “fighting of two or more
persons in some public place, to the terror of his majesty’s subjects,”
223
(6) committing “[r]iots, routs, and unlawful assemblies” with “three
persons at least,”
224
(7) “tumultuous petitioning,” that is, the signing
of “more than twenty names . . . to any petition to the king or either
house of parliament” without prior approval,
225
(8) committing “forc-
ible entry or detainer . . . by violently taking or keeping possession
of lands and tenements, with menaces, force, and arms, and without
the authority of law,”
226
(9) “riding or going armed, with dangerous or
unusual weapons, . . . against the public peace, by terrifying the good
people of the land,”
227
(10) “[s]preading false news, to make discord
between the king and nobility, or concerning any great man of the
realm,”
228
(11) spreading “[f]alse and pretended prophecies, with
intent to disturb the peace, . . . as they raise enthusiastic jealousies
in the people, and terrify them with imaginary fears,”
229
(12) com-
mitting “any thing that tends to provoke or excite others” to breach
the peace, such as “challeng[ing] to fight,”
230
and (13) publishing
“any writings, pictures, or the like, of an immoral or illegal tendency”
which “are malicious defamations of any person” and “made public
by either printing, writing, signs, or pictures, in order to provoke him
to wrath, or expose him to public hatred, contempt, and ridicule.”
231
219. 4 Blackstone, supra note 217, at 142.
220. Id. at 143.
221. Id. at 144.
222. Id.
223. Id. at 145.
224. Id. at 146.
225. Id. at 147.
226. Id. at 148. As Blackstone explained, “the entry now allowed by law is a
peaceable one; that forbidden is such as is carried on and maintained with force,
with violence, and unusual weapons.” Id. (emphasis added). This offense criminalizes
conduct with “unusual weapons”—entry by unjustified force.
227. Id. at 149 (emphasis added).
228. Id.
229. 4 Blackstone, supra note 217, at 149.
230. Id. at 149–50.
231. Id. at 150.
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8412025]
Interestingly, Blackstone’s Commentaries record “dangerous
and unusual” as “dangerous or unusual”—suggesting that the indi-
vidual terms were interchangeable or simply emphatic.
232
Moreover,
the full text makes clear that the common-law offense required
something more than simple possession of a “dangerous or unusual
weapon” in order for criminal liability to attach. Indeed, the law
required that the weapon not only be present in public (“riding or
going armed”) but also that its presence breach “the public peace”
and cause “terr[or].”
233
In other words, at minimum, the weapon had
to be carried openly in order to be seen, but even that alone would
not necessarily terrify the people.
A later treatise by Francis Wharton provides further context:
Although no bare words, in the judgment of law, carry therein so
much terror as to amount to an affray, yet it seems certain that in
some cases there may be an affray where there is no actual vio-
lence; as where a man arms himself with dangerous and unusual
weapons, in such a manner as will naturally cause a terror to the
people, which is said to have been always an offence at common
law, and is strictly prohibited by the statute. . . . [I]t is clear that no
one incurs the penalty of the statute for assembling his neighbours
and friends in his own house, against those who threaten to do him
any violence therein, because a man’s house is his castle. . . . It has
been said generally, that the public and open exhibition of danger-
ous weapons by an armed man, to the terror of good citizens, is a
misdemeanor at common law.
234
Two points bear emphasis. First, Wharton’s commentary makes
explicit that a “dangerous and unusual” offense could only be
232. This alternative word choice indicates that “dangerous and unusual”
is an example of hendiadys, “the expression of an idea by the use of usually two
independent words connected by and (such as nice and warm) instead of the usual
combination of independent word and its modifier (such as nicely warm).” Hen-
diadys, Merriam-Webster, tinyurl.com/4mru2bzz [https://perma.cc/UA5J-
C9H4] (last visited Mar. 30, 2025); see also Clayton E. Cramer, The Legal History of
“Dangerous or Unusual Weapons” 8 (Oct. 17, 2015) (unpublished manuscript) (on
file online on SSRN), tinyurl.com/bdse6cnb [https://perma.cc/M86K-DSZD]
(describing hendiadys as “a literary construct of classical origin that combines two
words using ‘and’ to convey emphasis; it is not a way of saying both must be true for
the phrase to be operative”); cf. Caetano v. Massachusetts, 577 U.S. 411, 417 (2016)
(Alito, J., concurring) (proposing a literal, conjunctive standard).
233. This historical limitation therefore is analogous to the modern-day bran-
dishing laws of many jurisdictions. For example, Virginia generally leaves the carry
of weapons undisturbed but prohibits the “[p]ointing, holding, or brandishing” of
firearms “in such manner as to reasonably induce fear in the mind of another.” Va .
Code Ann. § 18.2-282.
234. Francis Wharton, A Treatise on the Criminal Law of the United
States 726–27 (2d ed. 1852) (emphases added).
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committed in public because “no one incurs the penalty . . . in his own
house.”
235
This would make sense, as Blackstone described the com-
mon-law “dangerous or unusual” offense as an offense against “public
peace.” Second, a violation was punishable as a misdemeanor—not a
felony, the grade of choice for simple possession of the firearms most
likely to be maligned as “dangerous and unusual” today.
236
This pres-
ents a mismatch in penalty, “another relevant aspect of the burden”
under Heller, Bruen, and Rahimi.
237
Indeed, to the extent the histori-
cal law could be used to justify a modern prohibition on possession,
the historical law would not have burdened arms-bearing conduct
remotely to the same degree.
238
But therein lies the problem.
These historical laws bear a markedly different “how” compared
to modern prohibitions on possession. “Dangerous and unusual”
offenses only proscribed offensive conduct with weapons, not simple
possession—a significantly lesser “burden on the right of armed self-
defense.”
239
And they reached only public carry (open carry, specifi-
cally), not simple possession—another significantly lesser “burden
on the right of armed self-defense.”
240
In other words, these laws left
intact other public carry, like concealed carry, and the keeping and
bearing of weapons within the home.
Using “dangerous and unusual” offenses to justify modern limi-
tations on simple possession therefore would contravene Bruen’s
analogical guidance. Such offenses are not the supportive analogues
the Court assumed they would be in Heller, and they establish no tra-
dition for limiting the Second Amendment’s protections to the “pos-
session and use of weapons that are ‘“in common use at the time.”’”
241
C. The Founders Likely Understood “Dangerous and Unusual
Weapons” as a Term of Art for the Use of Any Weapons in a
Circumstantially Unjustified and Disproportionate Use of Force
Historical “dangerous and unusual” offenses do not support
modern possessory prohibitions due to their analogical mismatches
on public location, manner of carry, conduct proscribed, and penalties.
235. Id. at 727.
236. See, e.g., 26 U.S.C. § 5861 (prohibiting unregistered possession of
machineguns).
237. United States v. Rahimi, 602 U.S. 680, 699 (2024).
238. See District of Columbia v. Heller, 554 U.S. 570, 633 (2008) (empha-
sis added) (“A broader point about the laws that Justice Breyer cites: All of them
punished the discharge (or loading) of guns with a small fine and forfeiture of the
weapon (or in a few cases a very brief stay in the local jail), not with significant crimi-
nal penalties.”).
239. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 29 (2022).
240. Id.
241. Id. at 21.
Dangerous and Unusual
8432025]
But these offenses are distinguishable for an additional reason—the
historical record 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 particular types of weap-
ons. Once again, historical regulations of “dangerous and unusual
weapons” fail to justify limitations on the scope of protected “Arms.”
English common-law usage ascribes a different meaning to the
term “unusual” than even Founding-Era dictionaries.
242
Early cases
placed an emphasis on the disproportionality of force used, even with
otherwise common weapons.
243
For example:
In an English case called Baron Snigge v. Shirton, a long term ten-
ant was in a dispute with his landlord, and “kept the possession [of
the house he rented] with drum, guns, and halberts[.]” This was
considered keeping “his house with unusual weapons against a
purchaser[.]” In another English case, a sailor was firing warning
shots with a “musqet and ball” across the bow of another ship as
a signal, and killed a man. This firing was not done with unusual
weapons. In both cases, the weapons were in common use at the
time. However, in one case, the weapon was unusual, while in the
other case, it was not. The main difference between the cases is
whether the use of force was a reasonable one.
244
Later American cases suggest a similar meaning. For instance, a
court observed in an 1841 New Hampshire criminal case that:
Indeed, a resort to any unusual degree of violence, where there
is no felonious intent; or, where the violence is disproportioned
to the value of the property; or, where there are other remedies
equally effective for the individual, should hardly be encouraged,
and will always admit of more or less doubt whether it can be sus-
tained in law.
245
This synonymous relationship between unusuality and dispro-
portionality finds further support in cases construing the Eighth
Amendment. The Amendment’s prohibition against “cruel and
unusual punishments”
246
has been interpreted to impose a propor-
tionality requirement between the crime committed and the penalty
received. The phrase’s appearance in the English Bill of Rights, in
identical form, appeared “to have been directed against punishments
242. See, e.g., 1 Samuel Johnson, A Dictionary of the English Language
(1755) (“Not common; not frequent; rare.”).
243. Page, supra note 75, at 4 (equating “unusual weapons” to “surprising or
uncommon force”).
244. Id. at 4–5 (footnotes omitted).
245. State v. Elliot, 11 N.H. 540, 545 (Super. Ct. 1841) (emphasis added).
246. U.S. Const. amend. VIII (emphasis added).
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unauthorized by statute and beyond the jurisdiction of the sentenc-
ing court, as well as those disproportionate to the offense involved.”
247
Under this reading, the “dangerous and unusual” offenses
make sense—if one were to carry a weapon in such a manner that
was disproportionate under the circumstances and take action with
the weapon that was offensive, such action likely would disturb the
peace. All told, the historical record fails to support an interpretation
reaching the simple possession of firearms today.
D. Even if “Dangerous and Unusual Weapons” Contemplated
Specific Types of Weapons, They Did Not Include “Military”
Weapons, Which the Founders Expressly Intended Citizens
to Own
As Heller already noted, the Second Amendment’s animating
purpose was to guarantee “a ‘citizens’ militia’ as a safeguard against
tyranny.”
248
Members of the Founding-Era militia—ordinary people—
likewise would muster with “ordinary military equipment,” and, at
the time, “weapons used by militiamen and weapons used in defense
of person and home were one and the same.”
249
In other words, the
Founders intended the citizen and the infantryman to be peers. Such
armament parity between the people and their government was
deeply embedded in the Second Amendment’s original meaning.
Several Founding-Era sources support this understanding.
For instance, in urging the Constitution’s ratification, influential
Federalists James Madison, Alexander Hamilton, Tench Coxe, and
Noah Webster addressed the Anti-Federalists’ legitimate suspicion
of centralized military power.
250
These Federalists assured that the
people’s private armaments would serve as a sufficient deterrent
against would-be tyrants. Madison posed the following hypothetical:
[T]he federal government may previously accumulate a military
force for the projects of ambition. . . . Let a regular army, fully
247. Gregg v. Georgia, 428 U.S. 153, 169 (1976) (emphasis added).
248. District of Columbia v. Heller, 554 U.S. 570, 600 (2008).
249. Id. at 624, 625.
250. See, e.g., Brutus, Essay X, N.Y.J., Jan. 24, 1788, reprinted in The Anti-
Federalist Papers and the Constitutional Convention Debates 302, 302 (Ralph
Ketcham ed., 1st Signet Classics ed. 2003).
The liberties of a people are in danger from a large standing army, not only
because the rulers may employ them for the purposes of supporting them-
selves in any usurpations of power, which they may see proper to exercise,
but there is great hazard, that an army will subvert the forms of the govern-
ment, under whose authority they are raised, and establish one according
to the pleasure of their leader.
Id.
Dangerous and Unusual
8452025]
equal to the resources of the country, be formed; and let it be en-
tirely at the devotion of the federal government: still it would not
be going too far to say that the State governments with the people
on their side would be able to repel the danger. . . . To these would
be opposed a militia amounting to near half a million of citizens
with arms in their hands . . . . It may well be doubted whether a
militia thus circumstanced could ever be conquered by such a pro-
portion of regular troops.
251
Hamilton anticipated at least a near-peer dynamic between the
citizens and their government:
[I]f circumstances should at any time oblige the government to
form an army of any magnitude that army can never be formi-
dable to the liberties of the people while there is a large body of
citizens, little if at all inferior to them in discipline and the use of
arms, who stand ready to defend their own rights and those of
their fellow-citizens.
252
Coxe likewise envisioned “private arms” as a check against “mil-
itary forces”:
As civil rulers, not having their duty to the people duly before
them, may attempt to tyrannize, and as the military forces which
must be occasionally raised to defend our country, might pervert
their power to the injury of their fellow-citizens, the people are
confirmed . . . in their right to keep and bear their private arms.
253
It would make little sense for an empowered citizenry to have
access only to arms inferior to those of the government. Such an
arrangement would defeat the Amendment’s tyranny-deterrent pur-
pose entirely. Thus, Coxe explained that “Congress have no power to
disarm the militia. Their swords, and every other terrible implement of
the soldier, are the birth-right of an American.”
254
Consequently, Web-
ster believed “the people” would be the “superior” military force:
Another source of power in government is a military force. But this,
to be efficient, must be superior to any force that exists among the
people, or which they can command: for otherwise this force would
be annihilated, on the first exercise of acts of oppression. . . . The
251. The Federalist No. 46, at 295–96 (James Madison) (Clinton Rossiter ed.,
1961).
252. The Federalist No. 29, supra note 251, at 181 (Alexander Hamilton)
(emphasis added).
253. Tench Coxe, Remarks on the First Part of the Amendments to the Federal
Constitution, Phila. Fed. Gazette, June 18, 1789, at 2.
254. Tench Coxe, A Pennsylvanian, No. 3, Pa. Gazette, Feb. 20, 1788, at 2 (first
emphasis added).
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supreme power in America cannot enforce unjust laws by the
sword; because the whole body of the people are armed, and con-
stitute a force superior to any band of regular troops that can be, on
any pretence, raised in the United States.
255
Decades later, Justice Joseph Story described the Second
Amendment’s tyranny-deterrent purpose in similar terms—that
“[t]he militia is the natural defence of a free country against sudden
foreign invasions, domestic insurrections, and domestic usurpations
of power by rulers.”
256
And even a century after the Founding, Henry
Campbell Black, author of the eponymous law dictionary, recognized
that “[t]he ‘arms’ here meant are those of a soldier. . . . The citizen has
at all times the right to keep arms of modern warfare.”
257
There is no
mistaking this singular and persistent historical understanding.
Indeed, even modern courts have recognized that, in order to
effectuate the Second Amendment’s animating purpose, the Found-
ers understood the citizen militia to be as well-equipped as the tradi-
tional military. As one district court recently observed:
In the United States, with its long tradition of gun ownership, there
are no historical laws prohibiting simple possession of any type of
firearm until long after the 1868 adoption of the Fourteenth Amend-
ment. That is too late. . . . From this alone, a student of Heller,
McDonald, and Bruen can see the writing on the wall . . . .
258
Even the Seventh Circuit implicitly admitted this point. Despite
claiming that the historical tradition has “long contemplated” restric-
tions on “military” arms for “civilians,” the court identified only one
arguably Founding-Era regulation in apparent support—a 1746
ordinance from Boston, Massachusetts.
259
But this ordinance only
“outlawed the discharging of any cannon, gun, or pistol within city
limits” while allowing “soldiers . . . to discharge weaponry on their
training days.”
260
A regulation of discharge says nothing about pos-
session, and in any case, the Seventh Circuit never explained how
one city could shed light on “this Nation’s historical tradition of fire-
arm regulation.”
261
The glaring absence of Founding-Era restrictions
255. Webster, supra note 1, at 32 (emphasis added).
256. 2 Joseph Story, Commentaries on the Constitution of the United States
§ 1897 (5th ed. 1891).
257. Henry Campbell Black, Handbook of American Constitutional Law
§ 203 (2d ed. 1897) (emphasis added).
258. Miller v. Bonta, 699 F. Supp. 3d 956, 979 (S.D. Cal. 2023) (emphasis added).
259. Bevis v. City of Naperville, 85 F.4th 1175, 1201 (7th Cir. 2023).
260. Id. (emphasis added).
261. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (emphasis
added).
Dangerous and Unusual
8472025]
distinguishing “civilian” and “military” arms only confirms that these
weapons “were one and the same.”
262
Indeed, this Article’s Authors
have encountered not one Founding-Era restriction on the owner-
ship or simple possession of “military” arms in their experience liti-
gating Second Amendment cases.
Perhaps unsurprisingly, citizen access to “military” arms per-
sisted well into the 19th century. Courts at the time consistently held
that “arms . . . are such as are usually employed in civilized warfare,
and that constitute the ordinary military equipment.”
263
Some courts
even understood constitutional protection to extend to “arms of
every description, and not such merely as are used by the militia.”
264
And based on expert historical testimony, one Oregon court recently
concluded that “there was no clear distinction between private and
military use at the time of [Oregon] statehood [in 1859].”
265
Indeed,
“all the experts agree[d]” that, while “most private gun manufac-
turers were angling for military contracts” during the 19th century,
they still “would sell any firearm to private citizens who could afford
one.”
266
Thus, these settlers used “military” arms for “self-defense,”
“defense of the state,” and “militia activities.”
267
While the historical record makes clear that the Founders never
restricted citizen access to “military” arms, it also refutes any notion
that the Founders would have regulated modern machineguns—the
firearms most likely to be maligned as “dangerous and unusual”
today. Indeed, the Founders were familiar with arms and devices that
increased rates of fire, and they made no efforts to regulate such tech-
nology. In fact, the Founders welcomed these developments, prefer-
ring certain faster-firing weapons over slower-firing ones.
For example, during the Revolutionary War, the dominant
citizen and infantry arm was the smoothbore musket. At the time,
18th-century combat doctrine prioritized volleys of fire over sharp-
shooting and therefore preferred the highest rates of fire that con-
temporaneous technology could allow.
268
Indeed,
[i]nfantry tactics of that time called for a fast-loading weapon that
could produce a volume of fire, and the musket provided exactly
262. District of Columbia v. Heller, 554 U.S. 570, 625 (2008).
263. Aymette v. State, 21 Tenn. 154, 158 (1840) (emphasis removed).
264. Nunn v. State, 1 Ga. 243, 251 (1846) (emphases removed).
265. Arnold v. Kotek, No. 22CV41008, 2023 Ore. Cir. LEXIS 3887, at *9 (Har-
ney Cnty. Nov. 24, 2023).
266. Id. at 9, 10.
267. Id. at *10.
268. David Alan Johnson, Revolutionary War Weapons: The American Long
Rifle, Warfare Hist. Network (Apr. 2005), tinyurl.com/mv6jjw2h [https://
perma.cc/6LML-MX69].
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this—volume without much accuracy. . . . The idea was for each
line of infantry to spray as many musket balls at the enemy as pos-
sible, hoping that enough of them would hit the advancing enemy
line and stop it.
269
If high rates of fire were a concern, the Founders did not see fit to
regulate such a feature.
Moreover, the Founders were familiar with a number of weap-
ons that boasted especially high rates of fire for the time. Again, the
Founders restricted none of these weapons and instead embraced
them during westward expansion and as prospects for future devel-
opment. These weapons included: (1) the Puckle Gun, circa 1718, a
hand-cranked flintlock revolver suitable for “ships, boats, houses, and
other places,”
270
(2) the Belton flintlock, circa 1777, an early repeating
rifle in which the Continental Congress took interest and commis-
sioned further development,
271
and (3) the Girardoni air rifle, circa
1779, which accompanied the Lewis and Clark expedition and “could
fire up to 70 shots before [its] reservoir required replacing.”
272
Development of firearms technology continued into the 19th
century with a corresponding dearth of rate-of-fire regulation. Early
Americans likewise continued to welcome and appreciate advances
in rate of fire. For example, 19th-century developments “were focused
on improving efficiency in firing speeds and ability to deploy more
rounds when using the weapons at a high rate of firing speed,” and
19th-century Americans understood these arms to be “a necessity of
life for self-defense, service in the militia and subsistence through
hunting.”
273
Such developments offer all the “further confirmation”
needed to conclude that no tradition exists to support the prohibition
of the most clearly suggested “dangerous and unusual weapons.”
274
Thus, even if the historical term “dangerous and unusual weap-
ons” contemplated particular classes of weapons, such terminology
269. Id.; accord William K. Emerson, Marksmanship in the U.S. Army: A
History of Medals, Shooting Programs, and Training 5 (2004) (observing that
smoothbore muskets could be reloaded more quickly than muzzleloading rifles and
therefore were the “usual weapons”).
270. Forgotten Weapons, The Puckle Gun: Repeating Firepower in 1718,
YouTube, at 00:10 (Dec. 25, 2016), tinyurl.com/2dxewh22 [https://perma.
cc/7N5F-NE46].
271. Logan Metesh, As a Matter of Fact, the Founding Fathers Did Know About
Repeating Rifles, Truth About Guns (Nov. 25, 2019), tinyurl.com/mtv7pju9
[https://perma.cc/W8FN-HH4X].
272. Girardoni Air Rifle as Used by Lewis and Clark, NRA Museums, https://
tinyurl.com/5n957c5w [https://perma.cc/ZLG6-YBH9] (last visited Mar. 30, 2025).
Note that “Girardoni” is frequently spelled “Girandoni.”
273. Arnold v. Kotek, No. 22CV41008, 2023 Ore. Cir. LEXIS 3887, at 6, 11
(Harney Cnty. Nov. 24, 2023) (emphasis added).
274. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 20 (2022).
Dangerous and Unusual
8492025]
did not reach “military” weapons. As contemporaneous writings make
clear, the Founders sought to guarantee firepower parity between the
individual citizen and the government infantryman, so-called “mili-
tary” arms included. Accordingly, there is no reason to believe the
Founders would have reserved certain bearable arms—like Heller’s
purportedly “dangerous and unusual” machineguns—solely for gov-
ernment use. If one historical principle is clear, it is that the Founders
never intended the armament disparity that exists today.
Conclusion
In adopting a textual and historical standard for the Second
Amendment, the Supreme Court simultaneously proposed an atex-
tual and ahistorical conception of the scope of the Amendment’s
protected “Arms.” Undoubtedly, prohibitions on publicly carrying
“dangerous and unusual weapons” in a terrifying manner existed at
common law, at the Founding, and beyond. But these prohibitions
effectively proscribed brandishing weapons, not the mere ownership
or possession of discrete classes of weapons.
Even so, the Court has suggested that the literal meaning of
unusual—“rare”—may be used to limit the Second Amendment’s
protections to only those arms that presently are common. But such
reasoning defies the Second Amendment’s text, contravenes histori-
cal tradition, and violates the Court’s own holdings. A closer exami-
nation of the record reveals that the Founding Generation never
prohibited the possession of “rare” weapons. In fact, they expressly
contemplated the ownership and use of military weapons—those
sorts of weapons currently maligned as being “dangerous and
unusual.” But the ownership and use of these sorts of weapons effec-
tuates the Second Amendment’s prefatory clause, and it fulfills the
Founders’ vision of a populace well-equipped to resist tyranny.
With these principles in mind, the Court should abandon its cur-
rent reading of a “limitation” on the scope of protected “Arms.” Text,
history, and tradition demand it.
***