153 F.4th 213
2d Cir.2025Background
- Judge Walker (concurring) joins the Court's opinion and adds reasons why the plaintiffs' proposed conjunctive “dangerous and unusual” test is historically unsupported.
- Plaintiffs argued that Heller’s use of the word “and” means only weapons that are both numerically uncommon (unusual) and dangerous fall outside Second Amendment protection.
- The concurrence explains Bruen and Rahimi require a searching historical inquiry into the Second Amendment’s contours, not reliance on a single word in Heller.
- Heller cited Blackstone and several treatises for the ‘‘dangerous and unusual’’ language, but Blackstone actually used “dangerous or unusual”; other historical sources use both formulations interchangeably.
- Historical statutes and authorities (notably the Statute of Northampton) show the tradition targeted weapons that terrorize the public (affray), focusing on dangerousness/terror, not on the statistical rarity of the weapon.
- The concurrence endorses the majority’s reconstruction of the tradition as regulating “unusually dangerous” weapons (emphasizing danger to the public), rejecting plaintiffs’ numerosity-focused test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper interpretation of “dangerous and unusual” | Only weapons that are both dangerous and numerically unusual may be regulated (conjunctive test) | Historical tradition targeted weapons that cause public terror/affray; focus is on dangerousness, not rarity | Court rejects conjunctive numerosity test; endorses an "unusually dangerous" formulation grounded in history |
| Role of historical sources (Heller/Blackstone) | Rely on Heller’s wording (“and”) to support conjunctive test | Heller drew on Blackstone and others; Blackstone used “or”; sources use both terms interchangeably, so literal reading of “and” is misplaced | Court applies full historical inquiry; treats Heller’s phrasing in context and reconstructs historically faithful meaning |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (right to possess arms for self-defense; referenced "dangerous and unusual" tradition)
- New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (mandates historical inquiry to define Second Amendment scope)
- United States v. Rahimi, 602 U.S. 680 (emphasizes historical analysis and asks why/how regulation burdens the right)
- United States v. Miller, 307 U.S. 174 (historical touchstone for weapons "in common use")