Defining Danger: Constitutional Challenges & SCOTUS’s RKBA Debate

Opinion

In discussing the U.S. v. Rahimi case at oral argument, SCOTUS (Supreme Court of the United States) justices seem to be wrestling with the concept of “dangerous.” More specifically, does it pass constitutional muster to strip someone of his RKBA because the person is alleged to be “dangerous”?

What is “dangerous”? How may that be evaluated? Should that be applied to deprivation of a fundamental constitutional right?

Definitions. First, Let Us Look At Some Definitions.

A. Blacks Law Dictionary, Fifth Edition

Dangerous. Attended with risk; perilous; hazardous; unsafe. See also Danger.

Danger. Jeopardy; exposure to loss or injury; peril …

Dangerous instrumentality. Anything which has the inherent capacity to place people in peril, either in itself (e.g. dynamite), or by careless use of it (e.g. boat). (Citation omitted) Due care must be exercised in using to avoid injury to those reasonably expected to be in proximity. …

Dangerous per se. A thing that may inflict injury without the immediate application of human aid or instrumentality.

Dangerous weapon. One dangerous to life; one by the use of which a fatal wound may probably or possible be given. As the manner of use enters into the consideration as well as other circumstances, the question is often one of fact for the jury, but not infrequently one of law for the court.

B. Dictionary.com

Dangerous – adjective

1. 1. full of danger or risk; causing danger; perilous; risky; hazardous; unsafe.
   2. able or likely to cause physical injury; a dangerous criminal.

C. Merriam-Webster online

Dangerous – adjective

1. 1. exposing to or involving danger
   2. able or likely to inflict injury or harm.

D. Cambridge Dictionaries online

Dangerous – adjective

1. 1. describes a person, animal or activity that could harm you

Evaluation of Dangerous Definitions

The word “dangerous” is accepted by all sources as an adjective;

…”a word that describes a noun or pronoun.” It may be presumed that all instances of “dangerous” in the Heller decision are used to describe or elucidate another object, usually “weapons,” always some type of firearms, sometimes machine guns and sometimes handguns. In Rahimi, the term “dangerous” is used in reference to people.

Dangerous.

1. The terms “dangerous” or “danger” submit to analysis and several deducible rules worth identifying before proceeding with this discussion:
   • Rule # 1. Anything can be dangerous, given the necessary conditions. Sunlight can be dangerous to people in too long or too strong a dose. The ultraviolet portion of sunlight is immediately lethal (very dangerous) to some microorganisms. Air can be dangerous to people under very high pressure (e.g. high pressure air used to cut solid materials), if air is injected into a person’s vein or if air is simply absent. Knowledge can be dangerous if used wrongly. Raccoons can be dangerous if cornered. The list is endless…
   • Rule # 2. Nothing is always dangerous. A compound that is lethal in war may grow more food in peacetime as fertilizer or pesticide. Extreme cold, that may be devastating as weather may also be essential for scientific experiments or industrial processes.
   • Rule # 3. Whether or not something is dangerous depends entirely upon prevailing conditions. Water, although essential for normal life, is one of the leading causes of human death in the U.S.
   • Rule # 4. Danger requires an affected or potentially affected object. For something to be dangerous, it must create a risk to a person, an animal, or something else, such as “wolves are dangerous to elk” or “socialism is dangerous to democracy.” Without an object, it is impossible to sustain the argument that anything is dangerous. “Dangerous weather,” for example, might be dangerous to crops or pilots. A “dangerous calculation” might endanger the resolution of a formula. There must be some apparent or implied object at risk to validate the concept of danger.
   • Rule # 5. Danger itself is not an object – a “thing” – but is a condition or a subjective descriptor of a thing, an activity, or a process – a perception.
   • Rule # 6. Danger is not absolute but is, according to the eye of the beholder – a matter of opinion. One person may think spiders are dangerous, another not. One may think sky-diving is dangerous, another not.
   • Rule # 7. Since danger is in the eye of the beholder, danger may be perceived but not real (a person afraid of a non-venomous snake), and danger may be real but not perceived (a person living happily on the slope of an active volcano).
   • Rule # 8. The level of actual danger is a combination of risk and stake. If a person bets a penny on the lottery, there is no serious danger even though the risk is high because the stake is low. Increase the stake to $1,000, and the actual danger becomes greater. Decrease the risk (e.g., only ten lottery ticket buyers), and the danger becomes less. This rule may be stated as “Risk X Stake = Level of Danger.”
2. Dangerous generally includes things that are actively dangerous, such as a “dangerous stunt,” and things that are potentially dangerous, such as “dangerous terrain.”
   • Potentially dangerous things are things that can not be dangerous without active instrumentality, such as a “dangerous cliff” or a “dangerous idea.” See “Dangerous per se” above. Potentially dangerous things are not actually dangerous without some activation.
   • Actively dangerous things are dangerous because of some intervention, application, or instrumentality, such as “dangerous driving.”

Deprivation of Rights

For a person to be deprived of a constitutional right by the state, it would seem that a person must be actively dangerous and not passively dangerous. There must be an actual threat involved. That is, the person must not only be dangerous but must also be actually threatening someone else.

Consider, for example, a person who is adept with firearms, possesses one or more of them, and has a firm opinion about not being a victim of violence. Therefore, this person is arguably dangerous but not actively so. This person is probably actively dangerous to armed home invaders or a large predator attacking his dog but otherwise makes no threats. Thus, the necessary combination of dangerous and threatening has not been satisfied for this person. This person is not subject to state restriction.

Alternately, imagine a three-year-old child denied a treat and having a temper tantrum. The child is pounding on the kneecaps of an adult with closed fists and verbally promising mayhem. This child is clearly threatening but is not dangerous to the adult. In this example, the necessary combination of dangerous and threatening has not been satisfied, so no state restriction is allowed here either.

Conclusion

“Dangerous” and “dangerousness” are fuzzy concepts – highly subjective at best.

Fuzzy and subjective concepts are inappropriate measures when considering the deprivation of rights. Then, consider a person armed with a firearm or with a quart glass jar full of gasoline. Both are arguably dangerous, but neither has demonstrated any threat to anyone or anything else.

Before the state may take the extreme step of depriving a person of a fundamental and constitutional right, that person should be proven by some process to be both dangerous and threatening – both! The “some process” may be the rub in the Rahimi case. Enter “due process,” which, unfortunately, is not an issue in the Rahimi case.

Federal law can currently make it a felony for a person to possess firearms (strip a person of a fundamental right) – this because a state court denied that person the right without due process or because a state court issued a restraining order against a person even without actively restricting firearm possession, again without due process. Thus, there is too often no procedurally protected process for determining that a person is both dangerous and threatening before effectively stripping the person of his or her RKBA.

This is where the status quo of the interactive effect of federal and state laws crosses the constitutional double-yellow and clearly needs repair from SCOTUS. The Rahimi case may be the right vehicle for that, but the Range case is also pending to possibly get even more directly at this problem.

Any SCOTUS conclusion that fails to utilize both danger and threat and due process to determine those will not properly resolve the issues at hand in Rahimi.

All of this is in addition to SCOTUS’s consideration of whether or not RKBA-depriving laws in the domestic relations sphere meet the text, history, and tradition standard for constitutional permissibility that SCOTUS established in the Bruen case.

Gary Marbut is the author of Gun Laws of Montana and is president of the Montana Shooting Sports Association, the primary political advocate for Montana gun owners.