The Legal History Of ‘Dangerous Or Unusual Weapons’

Clayton E. Cramer

College of Western Idaho

October 17, 2015

Abstract:

The phrase “dangerous or unusual weapons” has long been used by American courts to justify prohibiting possession or carrying of particular classes of weapons. Examination of the history of this phrase shows it was neither as ancient nor as broadly prohibitive as many assume. Analogies to First Amendment case law suggest that the authority of the government may be more limited than D.C. v. Heller (2008) indicates.

The Legal History Of ‘Dangerous Or Unusual Weapons’ – Introduction

For at least two centuries, American courts have used this phrase to justify prohibiting possession or carrying of some classes of weapons.2 But are all of these citations correct? They are a reminder that secondary sources are never as trustworthy as primary sources. Most of these cases cite Blackstone and indicate the prohibition of “going armed with dangerous or unusual weapons” comes from the Statute of Northampton (1328). While Blackstone’s Commentaries does attribute this prohibition to the Statute of Northampton, 3 the phrase in question does not appear there, or anything even similar to it.

Searching through books published between 1300 and 1750 finds very few occurrences of this phrase. Thomas Wood’s An Institute of the Laws of England (1724) asserts “Riding or Going Arm’d with dangerous and unusual Weapons to the Terror of the People, is an Offence at Common Law, and Prohibited by Statute.” Wood’s footnote is to 4 Inst. 160, which would suggest book 4 of his work, but there is nothing that indicates whether this is a page number or section number, and no section numbers appear in Wood’s book.5 There is nothing 160 pages into Book 4. Immediately following this discussion of “Prohibited by Statute” is a discussion of the Statute of Northampton with the citation used by Blackstone: “2 Ed. 3, ch. 3” even though that statute says nothing about “dangerous or unusual weapons.”

Other legal works of the period seem to repeat Wood’s error:

It is Offence by the Common Law, for Persons to go or ride arm’d, with dangerous and unusual Weapons, and prohibited by Statute. If any by Night or by Day ride arm’d to the Terror of the People, Constables may take away their Arms, and carry them before a Justice of the Peace, who shall bind them to their good Behaviour in sufficient Sureties, $3c. Stat. 2 Ed. 3. c. 3.20. R. 2. a.

But Men may wear common Armour, according to their Quality and any Persons may go or ride arm’d to take Felons, suppress Riots, or execute the King’s Process. 3 Inst. 162.6

And also Giles Jacob’s A New Law-Dictionary (1729):

Wearing arms: With dangerous and unusual Weapons, is an Offence at Common Law, and prohibited by Statutes, 4 Inst. 160. By the 2 Ed. 3, cap. 3 none shall ride arm’d by Night or Day to the terror of the People…7

Other works scramble the phrase with a citation to the Statute of Northampton with no awareness that the phrase has nothing to do with that statute, such as Theodore Barlow’s A Justice of the Peace (1745): “But there may be an Affray (in a larger Sense of the Word) without actual Violence, as where a Man arms himself with dangerous unusual Weapons, to the Terror of the People. For by Stat. 2 E. 3. c. 3.”8 The context is again the problem of actions that cause “terror of the People.”

While not directly referring to a prohibition against the carrying of arms, Hawkins’ Pleas of the Crown (1716) in its discussion of the crime of affray is very clear that carrying of arms alone is not a crime: “That Persons of Quality are in no Danger of Offending against this Statute by wearing common Weapons, or having their usual Number of Attendants with them, for their Ornament or Defence.”9

Other uses of parts of this phrase are no more useful for determining intent. Hawkin’s Pleas of the Crown (1716) refers to unusiual weapons with respect to forcible entries or unlawful detainer, but clearly it is not a general prohibition on carrying or possession of weapons: “That whoever keeps in his House an unusual Number of People, or unusual Weapons, or threatens to do some bodily Hurt to the former Possessor, if he dare return, may be adjudged guilty of a forcible Detainer…”10

dangerous and Unsual weapons Unusual Weapons

See full PDF below.