How a Misquote by a Supreme Court Justice Imperils Gun Restrictions
“A 2008 Supreme Court misquote of Blackstone replaced “dangerous or unusual” with “dangerous and unusual,” creating a conjunctive test. This precedent has influenced 98 cases, overturning 20 restrictions. The Supreme Court will soon review assault-weapon bans.
A Supreme Court decision in 2008 case incorrectly quoted a centuries-old legal treatise, with profound implications for today’s gun-control laws.
When the Supreme Court begins weighing the constitutionality of assault-weapons bans next month, the justices will be guided by the court’s own precedent: a landmark ruling that such restrictions are allowed only if a firearm is both “dangerous and unusual.”
For nearly two decades, judges across the country have invoked this language to strike down gun-control laws. It is a pivotal legal test.
It is also based on a misquote.
Justice Antonin Scalia, writing for the majority in the 2008 case, District of Columbia v. Heller, attributed the “dangerous and unusual” language to Sir William Blackstone, an 18th-century English jurist whose writings became the basis for much of American law.
But in his seminal 1769 treatise, “Commentaries on the Laws of England,” Blackstone referred to weapons that were “dangerous or unusual,”suggesting that a gun did not need to be both in order to be restricted.
The consequences of Justice Scalia’s use of “and” rather than “or” have been profound. Since all guns are dangerous, courts have had to focus instead on determining whether a type of firearm is unusual, often parsing marketing data and consumer surveys to gauge a weapon’s popularity.
A New York Times review found that courts have applied the “dangerous and unusual” test in at least 98 opinions in civil lawsuits that challenged weapons restrictions, most of them bankrolled by activist groups, since the 2008 Heller decision. In 20 of those rulings, the restrictions were overturned.
One example came in 2023. A federal judge in California noted the test’s wording when he struck down the state’s ban on assault weapons. “This court assumes that the Supreme Court does not use language frivolously, that it says what it means and it means what it says,” wrote Judge Roger Benitez.
The Supreme Court will revisit the issue when it hears oral arguments on Dec. 2 in a case that challenges assault-weapons bans in Illinois and Connecticut.
Gun-rights proponents have filed at least 14 briefs citing the “dangerous and unusual” test. Among their arguments is that there are more AR-15-type weapons in circulation than Ford F-series trucks, the most common pickups in America. That, they argue, proves that the guns, though dangerous, are not unusual.
To understand how the regulation of firearms turned into a popularity contest, we have to travel back to the age of Shakespeare.
Kean Collection/Archive Photos, via Getty Images
In 1581, an English legal scholar, William Lambarde, published a judicial manual that referred in passing to troublemakers who were armed with “weapons not usually borne” — such as guns, which were far less common than they are today.
More than a century later, in 1716, a lawyer named William Hawkins coined the “dangerous and unusual” phrase, citing Lambarde’s manual as his source.
Fifty-three years later, Blackstone published his famous legal treatise, which mentioned “dangerous or unusual weapons.”
For the next two centuries, American judges and legal scholars used the two versions interchangeably when writing about laws regulating the possession and use of weapons, not placing importance on “and” versus “or.”
Then, in 2008, Justice Scalia wrote the Heller opinion and resuscitated the ancient “dangerous and unusual” language. He attributed it to, among others, Blackstone. The justice, like many other constitutional originalists, often turned to Blackstone as an authority on the prevalent legal thinking at the time the Constitution was written.
In another gun-related opinion in 2016, just a month after Justice Scalia died, Justice Samuel Alito amplified and sharpened the message. He placed a particular emphasis on the word “and.” Justice Alito asserted that Heller established “a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.”
In the years since, judges have overturned gun laws based on that conjunctive.
The test became even more prevalent after the Supreme Court’s 2022 rulingin New York State Rifle & Pistol Association v. Bruen, which folded the “dangerous and unusual” standard into a new process for evaluating the constitutionality of firearms restrictions.
Of the 98 civil cases in which federal and state judges applied the “dangerous and unusual” test, they upheld restrictions on guns and other weapons 68 times. They struck down laws on 20 occasions, and in another seven cases, they invalidated part of the laws. The rest are pending.
Each dot represents one opinion from a civil case challenging weapons restrictions. A case can appear more than once as it moves through the courts. By The New York Times
Justice Scalia embraced the “dangerous and unusual" language as he expanded the scope of the Second Amendment.
The amendment states: “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.”
The Heller ruling declared, for the first time, that the amendment guaranteed an individual’s right to possess a gun, unconnected to militia service.
But that didn’t mean all restrictions on guns were unconstitutional: The government could impose limits on weapons that were not commonly used by civilians, Justice Scalia wrote. Such curbs were “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
He cited a dozen sources for that quote. Blackstone was listed first, followed by a variety of 19th-century legal scholars and court opinions.
But half of those sources, including Blackstone, had used the phrase “dangerous or unusual.” The six that used “and” all cited Hawkins, the 18th-century barrister who was much less influential than Blackstone.
It is unclear whether Justice Scalia realized he was misquoting Blackstone — or if he simply didn't regard “and” versus “or” as an important distinction.
A few lower courts have noted the inaccuracy of his citation. Last year, a federal appeals court upheld Connecticut’s assault-weapons ban, saying it was in keeping with a tradition of restricting “unusually dangerous” weapons and explicitly rejecting the “dangerous and unusual” test that arose from Heller.
“It would seem a serious subversion of our commitment to history to enshrine a conjunctive test based on the Heller opinion’s possible misquote of Blackstone,” the appeals court said.
The Supreme Court is poised to review the constitutionality of Connecticut’s law.
Saul Cornell, a Second Amendment scholar and history professor at Fordham University, said relying on centuries-old legal precedents requires understanding how earlier generations used language. He said “dangerous and unusual” is most likely an example of hendiadys, in which a single concept is expressed in multiple words connected by “and.” One famous example of hendiadys is Shakespeare’s “full of sound and fury,” which meant furious sound.
“The best translation of Blackstone’s terminology,” Dr. Cornell said, “would be to treat ‘dangerous and unusual’ as a synonym for unusually dangerous.”
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