What are your Second Amendment rights? Mostly the Fourth Amendment.

Here’s a brief, but decently thorough, rundown on the current state of “Second Amendment rights” in the United States. Unfortunately, it involves much more than just pulling out your pocket sized booklet of the U.S. Constitution and reading the Second Amendment. This is the ammunition you need to debate, understand, and exercise, your Second Amendment rights. Of course, see the disclaimer lower right on the home page.

This is a broad topic, and it’s all up in the air, depending on where you live in the country, as you’ll see below. These are excerpts from the larger piece I’ve been working on, so I’ve left citations in where possible.

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Second Amendment Law?

Most of the federal constitutional law surrounding the possession and use of firearms, i.e., “Second Amendment law,” is actually the law of the “Search and Seizure” clause of the Fourth Amendment to the Constitution. 

The reason for this is because the United States Supreme Court has been very slow-going to establish any Second Amendment rights whatsoever. Regardless of what we believe the Founders intended, and regardless of what we subjectively believe, or perhaps know, that the Second Amendment means, the federal judiciary has failed miserably – decade after decade – at interpreting the actual words written in the Bill of Rights. I don’t believe it was ever supposed to be that difficult. But it is.

Shall not be infringed . . . .

For instance, it has been interpreted that the Second Amendment, though fairly concise, actually has two different so-called clauses. 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.”

See U.S. Const. amend. II. 

Seems pretty straight forward, in light of the fact that in the late 18th century, every military age male was required to comply with militia duties, and was also required by law to provide his own musket, or rifle, as well as sufficient powder and lead. As an interesting aside, in the event that any poor sap among us were so poor and dejected that he could not afford his own firearm, including sufficient powder and lead, there was an early welfare-style system, where that individual could borrow one from the government’s stores, with a requirement that it be returned in working order at the end of the lease term. This was less preferable to being able to use your own stuff. For example, Virginia’s Militia Act, enacted May 5, 1777, was very specific:

Every officer and soldier shall appear at his respective muster-field by eleven o’clock in the forenoon, armed or accoutred as follows: The county lieutenant, colonels, lieutenant colonels, and major, with a sword; every captain and lieutenant with a firelock and bayonet, a cartouch box, a sword, and three charges of powder and ball; every ensign with a sword; every non-commissioned officer and private with a rifle and tomahawk, or good firelock and bayonet, with a pouch and horn, or a cartouch or cartridge box, and with three charges of powder and ball; and, moreover, each of the said officers and soldiers shall constantly keep one pound of powder and four pounds of ball, to be produced whenever called for by his commanding officer.

If any soldier be certified to the court martial to be so poor that he cannot purche such arms, the said court shall cause them to be procured at the expense of the publick, to be reimbursed out of the fines on the delinquents of the county, which arms shall be delivered to such poor person to be used at musters, but shall continue the property of the county; and if any soldier shall sell or conceal such arms, the seller or concealer, and purchaser, shall each of them forfeit the sum of six pounds. And on the death of such poor soldier, or his removal out of the county, such arms shall be delivered to his captain, who shall make report thereof to the next court martial, and deliver the same to such other poor soldier as they shall order.

And if any poor soldier shall remove out of the county, and carry his arms with him, he shall incur the same penalty as if he had sold such arms; and if any persons concerned in selling or concealing such arms shall be sued for the said penalty, and upon conviction and recovery shall fail to make payment, he shall suffer such corporal punishment as the court before whom the recovery shall be shall think fit, not exceeding thirty nine lashes.

Militia or Individuals?

However, fast forward to 2008, long after the militia system has fallen into disuse and obscurity, in the case of District of Columbia v. Heller , the U.S. Supreme Court recognized that the Second Amendment is now officially divided into a prefatory clause (“A well regulated Militia, being necessary to the security of a free State, …”) and an operative clause (“… the right of the people to keep and bear Arms, shall not be infringed.”). See Heller, 554 U.S. 570, 577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). 

The Heller majority rejected the proposition that, because of its prefatory clause (“A well regulated Militia, being necessary to the security of a free State, …”), the Second Amendment “protects only the right to possess and carry a firearm in connection with militia service.” Id. So the militia part, which is often the center of much internet argument, is actually minor to the litigation.  Rather, the Court determined that, by its operative clause (“… the right of the people to keep and bear Arms, shall not be infringed.”), the Second Amendment guarantees, still today, as of 2008, “the individual right to possess and carry weapons in case of confrontation.” Id. at 592, 128 S.Ct. 2783. 

The Court also explained that the operative clause “fits perfectly” with the prefatory clause, in that creating the individual right to keep and bear arms served to preserve the militia that consisted of self-armed citizens at the time of the Second Amendment’s ratification. Id. at 598, 128 S.Ct. 2783; Kolbe v.  Hogan, 849 F.3d 114, 131-132 (4th Cir. 2017). That’s the overly-complicated way of saying that the people were the militia in the 1790s, and were guaranteed the right to keep their own weapons in case they needed to fight with them.

What is “Second Amendment law?”

This has created a body of law – Second Amendment law – which is amazingly one-sided, as far as the government is concerned, and extremely weak for the individual citizen.  As Professor J. Richard Broughton noted in what is one of the best law review articles I’ve reviewed, Danger at the Intersection of Second and Fourth, from the Idaho Law Review, September 2018:

[U]nder federal law alone, for example, numerous restrictions exist on gun possession: felons, those who have been adjudicated as a mental defective or who have ever been commit- ted to a mental institution, unlawful drug users or addicts, persons who have been dishonorably discharged from the armed forces, illegal aliens, and others. It is a crime to knowingly receive a firearm with an obliterated or altered serial number. It is a crime to possess a machine gun. It is a crime for a minor to possess a firearm, except under limited conditions. Violent crimes, or drug trafficking crimes, committed with a firearm are subject to enhanced punishments. And similar restrictions on possession and use of guns exist in state law. 

Id. at 399-400.  So, as lofty as the Second Amendment sounds, and as much as it is used in speech referencing the God-given right to keep and bear arms, etc., etc., in practice, and in reality, it has been chiseled away through the years, and has been long established as inapplicable to entire groups of individuals who might want to assert it, but who in reality have no recognized Second Amendment right to keep and bear arms. At least not that the federal courts recognize.

As for Heller itself, the landmark Second Amendment case only provides for a Second Amendment right for gun possession in one’s home. See Heller, 554 U.S. at 632, 635. To extend the Second Amendment beyond the home, which it obviously should to those of us who can read, one must look elsewhere at the lower federal courts, specific state laws, or wait until the Supreme Court takes up the issue of the expansion of the Second Amendment beyond the home. 

The expansion issue has been extremely limited in the lower federal courts. See, e.g., Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012); Grace v. District of Columbia, 187 F. Supp. 3d 124 (D.D. Cir. 2016); see also Jeffrey Bellin, The Right to Remain Armed, 93 WASH. U. L. REV. 1, 18–21 (2015) (discussing recent cases which suggest that gun rights may be gaining traction). 

In the dwindling number of jurisdictions where legislator continue to support strict gun regulation, judges, rather than politicians, spearhead the gun-rights movement . . . .

The Fourth Amendment generally requires police to possess “individualized suspicion” of a crime prior to conducting any search or seizure. When police try to preempt violent crime by stopping (i.e., seizing) armed citizens, the assumed violation of municipal gun laws supplies the requisite Fourth Amendment authority. As gun carrying becomes both lawful and common, even in major cities, police lose the ability to invoke public gun possession as a Fourth-Amendment-satisfying basis for investigation.

Bellin at 3 (citing U.S. v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (stating that “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure”).

The Fourth Circuit (WV, VA, MD, NC, SC) Has Declined to Extend Heller outside the home

The Fourth Circuit has expressly declined to resolve whether the right recognized by Heller extends beyond the home.  United States  v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011); see also Footnote 2 of U.S. v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc) (noting that they continue to decline to address the issue of extending Heller beyond the home, and noting a split of sister circuits on the issue). 

But the 7th Circuit (Ill., IN, Wis.), and the DC Circuit have extended Heller outside the home

Both the 7th Circuit and the DC Circuit have made such an extension. See Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); see also Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home).

The 9th Circuit (CA, AZ, AK, ID) says Heller doesn’t extend outside the home

However, other courts, including the Ninth Circuit, have expressly found no extension exists. See Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald”). 

McDonald v. Chicago (2010): The Second Amendment DOES apply to the States via the Fourteenth Amendment

When I took constitutional law classes in college, and again in law school, the professors made it a point to teach that the Second Amendment “does not apply to the states.” They made sure to inform you of that fact.  And for most of our history, that has been the position of the judiciary. However, that changed with the U.S. Supreme Court case of McDonald v. Chicago, 561 U.S. 742 (2010), which officially issued the holding that the Second Amendment applies, not only to the federal government, but also to the states. In other words, it restricts the state governments, and their political subdivisions, from some level of interference with the right to own and/or possess a gun. 

Thus, much of the body of constitutional law created in the 20th century, and in recent years, technically runs through the Fourteenth Amendment. It’s confusing, but such was the holding of McDonald. Through the ratification of the Fourteenth Amendment, so did the Second Amendment then apply to restrict the states, just as Congress was initially restricted.  The important result here, is that all those professors were wrong – though no doubt they very much want Heller reversed by some future version of the Court. Of course the Second Amendment applies to individuals.  If states can’t violate the Fourth Amendment, it would be completely illogical to argue that states can violate the Second. Political ideology should be irrelevant to Constitutional interpretation, but it’s not.

McDonald specifically rejected the view that the Second Amendment “should be singled out for special–and specially unfavorable–treatment.” McDonald v. Chicago, 561 U.S. 742, 750 (2010). In addition, the Court also touched on the possible impact on States:  As with any incorporated provision of the Bill of Rights, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table [for States].”  Id., 561 U.S. 742, 790.

But restrictions will still be allowed

Legislatures can still enact restrictions on firearms inside the home, as illustrated by the Fourth Circuit allowing the “assault weapon” ban in Maryland, or as in the case of persons prohibited by virtue of being a felon, etc., which were unaffected by Heller, and which have been upheld many times. See Kolbe v.  Hogan, 849 F.3d 114, 131-132 (4th Cir. 2017) (Upholding the MD ban) And if the Supreme Court does end up extending the Second Amendment beyond the home, restrictions are still going to be viable, depending on the analysis adopted by any such opinion. An actual Second Amendment analysis gets really confusing, and is beyond the scope of this post. But read the Kolbe decision and you’ll get the gist of how it can go.

Terry v. Ohio and the “Terry Search”

Perhaps the main collision between the Second Amendment and the Fourth, is one of the most famous cases of the 20th century, and probably the one case that any police officer in the United States can quote, in parts, verbatim: Terry v. Ohio, 392 U.S. 1 (1968). Terry was a 1968 Supreme Court case which came down during the tenure of Chief Justice Earl Warren. Professor Broughton discussed some interesting background on the case in his law review article, which provides context – both in why it was decided the way it was, and why it perhaps should now be sufficiently reigned in.

Terry provides the foundation for the often-used “Terry Search,” which is generally-speaking, when a police officer can make a limited search of a subject he is interacting with, where the subject isn’t yet under arrest necessarily, where probable cause for arrest has not been established, but where there’s some legitimate danger that the subject could be armed and dangerous to the police officer.

This is sometimes referred to as a “Terry Frisk,” or even a “Terry Sweep.” There’s a mountain of caselaw since 1968, from the Supreme Court, every federal circuit, and every state in the land, interpreting just what Terry means, and what it allows; and what it doesn’t allow. As Jeffrey Bellin points out in The Right to Remain Armed, at p. 11, 93 WASH. U. L. REV. 1, 18–21 (2015) it’s a subjective field:

Police often detect guns through public observation. Officers patrol the streets alert to signs of gun possession, such as bulges under clothing or protruding handles. The late Jack Maple, a key Bratton deputy, describes in his memoir how he taught himself to “spot people carrying guns” so he could “save a few lives” by getting the guns off the street. Maple explained the “drill” as follows: after seeing a suspicious bulge, he would make his “first move by grabbing the handle of [the suspect’s] gun. [The suspect] freezes and usually obeys an order to put his hands on his head. If he doesn’t, my hold on his gun and waistband put him off-balance, so I can spin him around and get cuffs on him anyway., Maple bragged that as a patrol officer, he would “stop two or three people a day who were carrying concealed weapons.’

The Courts Continue to Extend Terry, While Red States Continue to Liberalize Gun Rights

Recent federal appellate opinions from the lower federal courts, especially one from the Fourth Circuit, which we’ll discuss, have created an anxious uncertainty about where the Terry line of judicial law is headed in the future. This is “unknown, and unknowable,” given the nationwide trend of liberalization of gun laws of pretty much every “reddish” state in the country – especially West Virginia. Courts are beginning to clash with state legislatures in the levels of trust and freedom they’re willing to grant presumptively law-abiding citizens.

Ideally, Terry’s direction ought to head towards the “liberalization” of individual freedom and liberty, along with gun rights, in the states who’s legislatures are choosing to do so.  Those states, and their citizens, such as West Virginia, where “Mountaineers are Always Free” (Montani Semperi Liberi – the State Motto), understand that such trust and freedom was the intention of the Founders in creating and ratifying the Second Amendment.  

The Founders wanted to ensure that the citizens of the states would not be infringed from possession of arms by the federal government. The perceived problem at that time was federal tyranny. Why would the states give up their sovereign status, protected by their citizens via militia membership, and join this federal government, if the federal government could disarm them and have their way with them thereafter?

The Fourth Amendment White-Knight’s the Second Amendment

Since the Second Amendment itself doesn’t extend beyond the home, if at all, in the eyes of the judiciary, you’re generally only going to be protected by the Fourth Amendment, when in possession of a firearm outside the home. If you leave your house with a gun, whether walking, or driving, and whether carrying a firearm concealed, or carrying a firearm openly, the only real protection available is the Fourth Amendment. The prohibition against unreasonable searches and seizures. Like the Second Amendment, the strongest protections under the Fourth Amendment apply in the home, where generally, even from English common law, a man’s home is his castle. This is the origin of the so-called “Castle Doctrine” statutes which were enacted throughout the country in recent years.

In the Home: No Warrant? Presumptively Illegal

Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” See, e.g., United States v. Castellanos, 716 F.3d 828 (4th Cir. 2013) (Generally no reasonable expectation of privacy in property that is held by a third party). 

Outside the Home: No Warrant? No Need unless REP

To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts (United States v. Miller, 425 U.S. 435 (1976)), curbside trash (California v. Greenwood, 486 U.S. 35 (1988)), “open fields,” surrounding one’s home (Oliver v. United States, 466 U.S. 170 (1984)), and so on. 

However, use of police dogs to investigate a home and its immediate surroundings is a search under the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409 (2013). As does GPS surveillance of a vehicle traveling on public roads. U.S. v. Jones, 132 S.Ct. 945 (2012). Future changes are likely in the areas of cell phones, emails, tablets, and other similar devices. Changes are also likely in the area of videotaping police officers in public areas.

Outside the home, you generally aren’t dealing with search warrants, though you may have arrest warrants.  In public places, you’re mostly dealing with “reasonable suspicion” and “probable cause.” Reasonable suspicion is the standard which is required to be met before a police officer can initiate a stop. 

What is Reasonable Suspicion? First answer whether you’re in a car, or walking down the street….

A “stop” could be a traffic stop, or it could be a “detention” on the street, or some type of pedestrian encounter. It’s not easy to define what reasonable suspicion is, but you generally see these two scenarios. Either you have a traffic stop of a vehicle, or you have a pedestrian encounter. Both occur in public – so outside the highly protected castle of the Fourth Amendment, the home. Both contain very low protections for the individual, and have very high degrees of power to the police. 

Gun rights are mostly a conglomerate of hundreds, if not thousands, of criminal prosecutions, analyzing motions to suppress what are alleged to be illegal searches and/or seizures

Each of these scenarios has vastly different consequences for gun rights. And each of these bring hundreds, if not thousands of different cases, around the country, and within states, describing what police officers can do, and what they cannot do, based on different factual circumstances. Many of those pertain to firearms.  And almost none of them are going to discuss the Second Amendment itself. But they do generally involve the concept of being armed for the purpose of self defense – really the central component of the Second Amendment.

IMPORTANT FEDERAL CASES ON GUN RIGHTS OUTSIDE OF THE HOME:

U.S. v. Robinson (2017): a Fourth Circuit case holding that being an occupant in a car, with a gun, makes you “armed and dangerous” as a matter of law

We can really skip ahead a few decades in the endless litigation of reasonable suspicion and Terry v. Ohio and arrive at the current predicament upon which we’ve arrived. In 2017, the Fourth Circuit took a giant chunk out of gun rights, by issuing the “en banc” opinion (which means the entire court of appellate judges on the Fourth Circuit, rather than the usual random three judge panel) of U.S. v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc). 

The majority opinion concluded categorically that the presence of a firearm on a subject, or within reach of the subject, makes that person dangerous, by virtue of being armed with a dangerous weapon. This applies objectively, and does not require any articulable facts by the police officer of some other reason why the person was dangerous. Robinson, 846 F.3d at 699. This is also one of those cases where the separate opinions are perhaps just as important as the majority opinion. For West Virginians specifically, and probably those in North Carolina, Judge Black specifically discusses in his dissent, the potential danger of the majority’s reasoning for Fourth Amendment violations in open carry states:

In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.  And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.

West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. 

Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, see United States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. See Northrup, 785 F.3d at 1133. . . .

That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See [Northrup] at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.

Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.

But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.

United States v. Robinson, 846 F.3d 694, 714, 716 (2017) (emphasis added).

The reality: less gun rights in a car; more as a pedestrian.

The result is, if you are in possession of a firearm inside a vehicle, and therefore subject to a traffic stop, you can be subjected to a Terry search, and disarmed, even if you did nothing wrong at all, assuming it was a legal traffic stop in the first place.  And of course, assuming the officer has knowledge that you’re armed. To the contrary, when in public, but not inside a vehicle, it’s not going to be as easy to find yourself in a situation where you are “seized” by a police officer, and thus not free to go, prior to the officer obtaining knowledge that you’re armed.  Moreover, the holding of U.S. v. Robinson did not extend to pedestrian encounters. So a pedestrian, as of now, is still controlled under the 2013 holding of U.S. v. Black, another Fourth Circuit opinion, which protects the open carry of firearms in open carry states.

United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013).

Writing for the Fourth Circuit in United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013), Judge Gregory wrote that:

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

Northrup v. City of Toledo Police Department, (6th Cir. 2015): a non-categorical, individual-specific Terry stop

Between Black and Robinson, the Sixth Circuit issued the opinion in Northrup v. City of Toledo Police Department, 785 F.3d 1128 (6th Cir. 2015), which completely rejected the categorical method adopted by the majority in Robinson, and instead applied an individual and particularized approach of distinguishing between one who is “armed,” and one who is “dangerous,” based on the actual facts of the situation. The case involved a man going for a walk with his wife, daughter, grandson, while walking a dog, and while armed with a handgun openly carried on his hip. During the walk, there was a verbal altercation of sorts with a passerby, who told Mr. Northup, “you can’t walk around with a gun like that,” and who then called 911 to report the gun being openly carried by Mr. Northup.

When the case eventually made its way to the Sixth Circuit, Judge Sutton wrote an opinion highly supportive of individual liberty in the open carry context. In response to the officer’s alleged fear that Mr. Northrup could have started suddenly shooting people, which I’ve commonly encountered in my practice, Judge Sutton wrote that the officer should have engaged Mr. Northrup in a conversation before determining whether he was dangerous. He wrote that absent reasonable suspicion of Mr. Northrup being dangerous, the officer’s fear, or “hope” that Mr. Northrup wouldn’t start shooting, “remains another word for the trust that Ohioans have placed in their State’s approach to gun licensure and gun possession: “[W]hile open carry laws may put police officers (and some motorcyclists) in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets.

United States v. Leo: a Seventh Circuit restriction on gun searches

A police officer in Racine, Wisconsin, was driving an unmarked car when he spotted two young men in black hoodies standing on the sidewalk. As he drove by, he saw the men running into the yard of a nearby duplex. Shortly after this, the police officer heard the dispatcher relay that a 911 call was received, reporting a suspected burglary in process in the exact duplex unit he had last seen one of the suspects.  The description of the suspects described the suspects as “two Hispanic men wearing black hoodies, one of them with a gun, possibly a revolver.” The dispatcher also relayed that the 911 caller had also reported an unmarked police car pass by. United States v. Leo, 792 F.3d 742 (7th Cir. 2015).

Police later stopped Mr. Leo after he left, heading towards a local Head Start program. He was handcuffed, and having information there would be a gun in the backpack, the backpack was searched, where drugs, as well as the firearm, were found. The purported justification was a search under Terry. However, since the gun was suspected to be in the backpack, and since it was no longer accessible to Mr. Leo, who was handcuffed, was there justification under Terry?

The officers, or at least their lawyers, also argued that Mr. Leo was heading towards the Head Start school with a gun, which justified the backpack search. However, the Seventh Circuit noted that the Head Start program was not a “school” under Wisconsin law, and as such, carrying a gun there wouldn’t have been a violation of federal or state “gun-free school zone laws.” Moreover, the concealed carry laws in Wisconsin limits the rights of convicted felons or persons under the age of twenty one. However, the officers did not know Leo’s age or criminal history – nor did they inquire. 

The Court noted that Seventh Circuit precedent permits public carry of a firearm, pursuant to the Second Amendment. Therefore, the Court rejected the officers’ justification for the search, without a sufficient articulation of probable cause. The Court held that the liberalization of state gun laws, along with Heller and McDonald, required probable cause before searching Mr. Leo:

[C]onsidering thee important developments in Second Amendment law together with Wisconsin’s gun laws,” the court was compelled to reject the Government’s justification for search without establishing probable cause.

Broughton, at 394 Danger at the Intersection of Second and Fourth, from the Idaho Law Review, September 2018.

Florida v. J.L., 529 U.S. 266, 272 (2000)

The U.S. Supreme Court declined to recognize a “firearm exception” to the requirements justifying a Terry search in a case dealing with an anonymous tip alleging an illegal gun would be found on the target of the anonymous tip. The Court’s reasoning was grounded upon the reliability inquiries attending anonymous tips, rather than the issue of whether the mere possession of a firearm alone can establish a per se basis for an investigative detention.

A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a ‘firearm exception.’ . . . We decline to adopt this position.

See J.L., 529 U.S. 266, 272 (2000)

United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000)

Another anonymous tip case, from the Third Circuit, arising out of the Virgin Islands. An anonymous tip was received that Mr. Ubiles possessed a firearm at a public event, but there was no indication or information that he was engaged in, nor planning to engage in, illegal activity. The Court held that mere possession of a lawful object does not entitle a police officer to infer criminal activity in the absence of reasonable, articulable suspicion. Ubiles at 218.

The Court analogized the situation to the lawful possession of a wallet. The wallet may, or may not, contain counterfeit bills. The mere possibility of it having counterfeit bills, likewise would not entitle a police officer to infer their presence in the wallet.

To be continued…..

 

 

Another Update on the Walker Case: More New Evidence and fighting over its use

Just filed today, our attempt at supplementing our motion for summary judgment with a newly-obtained “CAD” report from the Putnam County 911 center. Originally we were able to obtain a screenshot of the video which had originally been broadcasted on Facebook Live.  As soon as we received that, we sent a FOIA to Putnam County 911 citing the exact time, date and location, and they indeed had a record of the call.

So, looking at the actual CAD sheet, we were able to determine that the original 911 call only referenced a “man with a rifle,” – not a man with an “assault rifle,” as was the testimony. And more importantly, the time was conclusively established as around 6:00 p.m., and not in the “morning,” while “school was in session.” Here was the sworn testimony:

Q. Do you remember what the substance of the dispatch call was?

A. Basically, there was a guy walking down the road with an assault rifle.

But here’s the actual record:

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Another interesting thing…. Obviously in the video, the deputy accuses Michael of being a so-called “sovereign citizen.” I asked the deputy as follows during his deposition, which is of course, under oath:

Q. You con’t know who issued that report [the 2/23/18 BOLO characterizing plaintiff as a sovereign citizen] or who prepared that report?

A. I have no idea.

Q. And you don’t know how they came to get the information that Mr. Walker allegedly has sovereign citizen behavior?

A. I have no idea.

Q. That didn’t come from you?

A. No, sir.

Q. Did you tell anyone that Michael Walker was a sovereign citizen?

A. No, sir.

But here’s page 3 of the CAD sheet record from this encounter:

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As you can see, apparently the officer radioed dispatch at the conclusion of the encounter that they would probably receive more calls on a “sovereign citizen” carrying a gun. It’s odd that they didn’t already have this document before now, in which case they would have been required to provide it to us.

It’s still not a basis for reasonable suspicion under the holding of U.S. v. Black, for someone to open carry within a mile of a school, but it shows the supposed claim of Michael being a suspected school shooter as an after-thought legal strategy. As I indicated in my questioning about the “sovereign citizen” stuff during the deposition, on 2/23/18 – two days following this encounter, Putnam County Sheriff’s Office issued a “BOLO” to other police officers accusing Michael of being a “sovereign citizen” and being armed and dangerous. Following a BOLO such as this, officers would at that point have reasonable suspicion to go ahead and disarm him and search him during any interaction under Terry v. Ohio.

A Moonshine Bust in 1958 Gets a SCOTUS Smackdown – Yet, as of 2020, some in WV haven’t gotten the memo…

NOTE: A landlord cannot give you permission to search his tenant’s home for illegal stuff. Write that on the chalkboard, and repeat 100 times . . . .

In the 1961 U.S. Supreme Court case of Chapman v. United States, the Court was presented with the following scenario:

In 1958, acting without a search warrant, but with the consent of the suspect’s landlord, police officers entered the suspect’s home through an unlocked window, and searched the rental house. There they found an “unregistered distillery” and 1,300 gallons of “mash.”  Shortly afterwards, the suspect was indicted for violation of federal liquor laws.

A guy named Bridgaman owned a rental house in a wooded area, near Macon, Georgia. Since the house had been rented to a new tenant, on Sunday, February 16, 1958, Mr. Bridgaman went to the rental house, for the purpose of inviting his new tenants to attend church with him.  Upon arrival, he noted a strong “odor of mash” around the house. There was no response to his knock. He tried to look in the windows, but couldn’t see anything.

Being a good Christian, Mr. Bridgaman contacted two local police officers, who dutifully reported to his home. Together, the three went to Mr. Bridgaman’s rental house, where all three of them agreed that there was a strong “odor of mash.” They knocked on the door; but no response. They tried to look into the windows; but they couldn’t see anything. They checked to see if the windows were locked. They were all locked, except for one – the bathroom window.

According to the officers’ sworn testimony, the landlord, Mr. Bridgaman, gave them permission to climb in the window and see if the tenants were doing what he suspected they were doing, given the strong smell of moonshine in the making. So the officers climbed in the bathroom window.

After entering the home, one of the officers found 1,300 gallons of mash in the living room, and other than the mash, the rest of the house was empty – aside from the distillery and distilling accessories.

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The officer who found the moonshine operation, yelled out to the other about what he had found, and told him “to go get some help.” The other officer then left, taking the landlord home, and called the federal police to come to the scene.

However, before the feds could get there, the tenant arrived home.  He unlocked the door, walked inside, and was suddenly confronted by the police officer, still inside the house, who handcuffed him and arrested him.

When the other officers arrived at the scene, they saved samples of the mash, took pictures of the crime scene, inside the house, and then destroyed the moonshine still and destroyed the shine. There had never been a search warrant of any kind. The case went all the way to the U.S. Supreme Court.

Surprisingly, despite not having a search warrant, the government’s argument justifying their warrantless search, was that it was a rental property, and that the landlord, on a social call, noticed that the premises was being used for criminal purposes, and since he had the legal right to enter the premises as the landlord, “he should be able to exercise that right through law enforcement officers to whom he has delegated his authority.”

The SCOTUS immediately pointed out three problems with that argument: 1) the officer forced open a window to gain entry to the premises; 2) their purpose in entering was to search for distilling equipment, not to evaluate the status of the landlord’s property; and 3) if the SCOTUS were to allow such an intrusion, without a warrant, “would reduce the Fourth Amendment to a nullity and leave tenants’ homes secure only in the discretion of landlords.”

Gee . . . . Sounds familiar.

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Therefore, the Supreme Court of the United States found that the search was illegal, and thus began an extended progeny of federal cases, all based on the 1961 U.S. Supreme Court decision in Chapman v. U.S., written by Justice Charles E.Whittaker, who was appointed by President Eisenhower in 1957.

Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

And here we are, in 2019-2020, and there are still LEOs in West Virginia, who apparently believed they were entitled to entitled to go search a house for drugs, just by virtue of supposedly asking a landlord if they can enter? Yes, 1961 was a long time ago, but the case has been cited in caselaw 670 times, by my count, since then, including as recently as 2015, here in the Fourth Circuit.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

“At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (internal quotation marks and citations omitted).

And the protection of a house extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel room); Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (rented house). U.S. v. Stevenson, 396 F.3d 538 (4th Cir. 2005).

The Walker Open Carry Case Turns Into a Fight Over the “AR-15”

UPDATE 2/5/20: Here’s our reply to the defense theory of Anti-AR-15:

Central to the Reply is newly discovered evidence. The defendant police officers argued to the Court that even though there’s no indication of it from the video, they actually weren’t checking to see if Michael Walker was a person prohibited from possessing a firearm, but rather that he was a potential school shooter, because it was “morning,” and a school some undetermined distance down that road was “in session.”

Well, the video was originally broadcasted on Facebook Live. Somebody was able to go back and screenshot it, and as it turns out – oops – it was actually 6:00 p.m…. I guess that explains the crickets around the 2:50 mark on the video.

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So, here’s the response we received from Putnam County in response to our pretrial motion asking the Court to stop the Putnam County deputies from presenting anti-AR-15 propaganda and irrelevant media reports of mass shootings at the jury trial in the Michael Walker Open Carry case.

Here was my last update, wherein I posted our motion to exclude the unrelated matters from trial, if you haven’t been following along.

This response is an outrageous attack on the Second Amendment, which ironically was filed by lawyers for West Virginia’s first so-called “Second Amendment Sanctuary” county – Putnam County.  Yesterday we all appeared at the federal courthouse in Huntington, West Virginia, for the pretrial hearing on various motions, including this one.

It was almost surreal to hear the other side argue to the Court that by virtue of the fact that Michael was safely carrying a completely legal AR-15 style rifle, in a non-threatening manner, that police should be able to search and seize him just because the AR is the “preferred weapon of mass shooters,” and so on.  Citing news media reports about the Parkland shooting.  They actually argued in court, that it would not have been suspicious if he had a shotgun, or a handgun.  It was mentioned that AR-15s aren’t used for hunting in West Virginia.  Which is of course completely false, and besides the point.

This is a reality check for people who value the Second Amendment, as well as the Fourth Amendment.  If you live in the Fourth Circuit: West Virginia, Virginia, Maryland, North Carolina, or South Carolina, unless there’s a SCOTUS opinion on point, your constitutional interpretation/law comes from the Fourth Circuit. We’re on the edge….

Right now U.S. v. Black (2013), written by a federal appellate judge who is a staunch defender of the Second Amendment, Judge Gregory, whom I’ve had the honor of arguing in front of, protects citizens who open carry firearms in open carry states.  The police cannot harass you, detain you, search you, seize you, just by virtue of the fact you have a firearm. As we know from the past, that was the original purpose of gun control measures in many of the southern states, such as North Carolina (which is where US v. Black came out of).

Black was narrowed by US v. Robinson in 2017, which said that anyone in a vehicle lawfully stopped for whatever traffic violation, or pre textual reason whatsoever, can be disarmed and searched, because firearm possession automatically makes you dangerous.   Judge Gregory wrote an amazing dissent in that en banc opinion, which specifically mentions this scenario as it pertains to West-by-God-Virginia. However, that wasn’t extended to open carriers who are not already legitimately subjected to a forced encounter with police.  Well, they’re now trying to extend this to open carriers through anti-AR-15 propaganda.

If they succeed, guess what can happen next time thousands of open carriers bring their ARs to the state capitol in peaceful protest and free speech?  It’s game on if law enforcement wants to disarm you, run your background checks, search your pockets, etc. As Judge Gregory warned in the Robinson case dissent:

In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.5 And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.

West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, see United States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. See Northrup, 785 F.3d at 1133.

. . .

That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See supra at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.

Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.

But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.

Accordingly, I dissent.

United States v. Robinson, 846 F.3d 694, 714, 716 (2017).

Don’t forget that Heller, i.e., the Second Amendment, has not yet been extended outside one’s home. It hasn’t been applied to open carry yet, or anywhere outside the home in the Fourth Circuit – nor by SCOTUS. See United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other courts are divided on the question, compare Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald“).

So, are Montani Semper Liberi, or not? It remains to be seen. Right now, definitely not in Putnam County. And if they get their way, neither here, nor our neighbors in Virginia, and below…..

Update on the Putnam Search Video Case

I’ll be in federal court tomorrow, Monday, February 3, for a pretrial hearing in the other Putnam County case with a video, and will potentially be meeting with additional witnesses afterwards, if there’s time.  If you have information, please let me know.

A few days back I had to trim the video in order to take out the local TV coverage of the task force guys, where they’re walking around the trailer park, banging on doors, etc. They claimed copyright on the footage and threatened to sick their lawyers on me.  So I just took that part down.  But I assume that you can find it on their site if you look for it. At some point, I’m sure it will be evidence of record anyways.

Since the original video was uploaded, the Putnam County Sheriff has ordered an internal investigation. Right now we’re awaiting the results of that investigation, and also proceeding with our own.

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I have personally met with investigators, and have provided them whatever they wanted out of my file.  I also made my client and an eyewitness available to them for questioning.  I also have received yet another video showing them inside an individual’s home, and I have also provided that to the investigators – with the individual’s consent, of course. Numerous other people have contacted us in regards to other situations involving this same group of guys, and I’m still in the process of speaking to them all.

Here are a few more photos which address important aspects of the situation. Here’s where the Putnam County Special Enforcement Unit cut the lock on my client’s gate at the end of driveway, before driving towards the house in a white truck, and what appears to be two black Ford Explorer unmarked police cruisers.

Here’s where the police officers climbed through the window to get inside the house.  They pushed in a window unit air condition. It was actually one of those indoor ACs, but it still requires a window unit for exhaust and drainage. This photos were taken immediately following the search.

Here’s where they yanked the surveillance camera cord. It’s of the type that has two plugs. One of the plugs was pulled out, and the other was ripped in half, leaving the connector still in place.

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How do we know it wasn’t already like that? Remember the part of the video where the guy in the SWAT outfit was walking across the bridge? (5:41 in the video) When he gets to the end of the bridge, it freezes. That’s this actual camera. And the point at which it freezes is when the damage occurs to the camera. I originally thought that camera had survived.  But no, that one was actually severed, and you see the moment it was severed.

Here’s the guy walking across the bridge:

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And here’s the exact moment that camera was disabled:

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As for what their defense is at this point, I don’t know.  But self-proclaimed “Bailiff” of the Putnam Sheriff’s Department did confront me on social media and try to set me straight on the facts, and the law. He implied that the officers entered with the landlord’s consent. The only problem with that is, a landlord cannot authorize law enforcement to search their tenant’s residence. That’s Fourth Amendment 101, which is why a search warrant is still required even to search the hotel room of an overnight guest (minus a ticking time bomb or something) They can’t just ask the hotel manager for permission to search. A warrant is still required. Secondly, the landlord was questioned very early on, and denied knowing anything about it. That may have been a lie.  But if it was, then they can point fingers at each other when it comes time to be placed under oath. But it still won’t be a defense to an illegal search by law enforcement.

As for a criminal investigation, I have no knowledge of any agency investigating them criminally.  That doesn’t mean it’s not happening. But nobody has notified myself, nor my client, of there being one. That’s why I believe it’s important to share this information with the public. In the end, the citizens should be informed of what their government is doing. Or not doing.

WV prison guard stops our client at gunpoint in Doddridge County, WV

Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….

If you have any information, please contact us.

“Possession” as a Crime. Beware the do-gooders.

It’s been in the news the past few days, that the West Virginia Legislature is considering a bill which would legalize marijuana in the state. Introduced by the Democrats, it’s been the subject of knee-jerk criticism by many who claim to have conservative principles. This is yet another illustration of how many so-called conservative politicians misunderstand the conservative principle of “less government,” and even more importantly, the obscure concept of “liberty.”

Now, I have no desire to smoke anything but cigars, but stop and think for a moment . . . . Speaking of liberty, I wonder how Patrick Henry, George Washington, Benjamin Franklin,  or Alexander Hamilton, would have felt about the prospect of a legislature enacting laws criminalizing the possession of a particular plant? What about the criminalization of any object, just in general?

The Constitution, which all elected politicians took an oath to defend, and which all lawyers and judges took an oath to defend, was ratified in 1788. As of 1790, we had exactly thirty (30) federal crimes on the books. See Crimes Act of 1790. The crimes at that time were treason, misprision (concealing) of treason, piracy, counterfeiting (manufacturing), interference with diplomatic immunity, passport obstruction or assault on an ambassador, murder, manslaughter, mayhem (unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person….), larceny, misprision (concealment) of felony, obstruction of dissection, corruption of judicial records, perjury and subornation, judicial bribery, obstruction of judicial process, and prison break.

In 18th century, and early 19th century western civilization, criminalization of the possession of objects, drugs, alcohol, etc., was not a thing at all. On the other hand, the outlawing of drug and alcohol possession had long been a central component of Sharia Law, and Muslim dictatorships, as well as in regimes in the Far East:

The prohibition on alcohol under Islamic Sharia law, which is usually attributed to passages in the Qur’an, dates back to the 7th century. Although Islamic law is often interpreted as prohibiting all intoxicants (not only alcohol), the ancient practice of hashish smoking has continued throughout the history of Islam, against varying degrees of resistance. A major campaign against hashish-eating Sufis was conducted in Egypt in the 11th and 12th centuries resulting among other things in the burning of fields of cannabis . . . .

A number of Asian rulers had similarly enacted early prohibitions, many of which were later forcefully overturned by Western colonial powers during the 18th and 19th centuries. In 1360, for example, King Ramathibodi I, of Ayutthaya Kingdom (now Thailand), prohibited opium consumption and trade. The prohibition lasted nearly 500 years until 1851, when King Rama IV allowed Chinese migrants to consume opium. While the Konbaung Dynasty prohibited all intoxicants and stimulants during the reign of King Bodawpaya (1781–1819). As the British colonized parts of Burma from 1852 they overturned local prohibitions and established opium monopolies selling Indian produced opium.

In late Qing Imperial China, opium imported by the British East India Company was consumed by all social classes in Southern China. Between 1821 and 1837, imports of the drug increased fivefold. The drain of silver to India and widespread social problems that resulted from this consumption prompted the Chinese government to attempt to end the trade. This effort was initially successful, with the destruction of all British opium stock in June 1839 (see Destruction of opium at Humen). However, to protect their commerce, the British declared war on China in the First Opium War. China was defeated and the war ended with the Treaty of Nanking, which protected foreign opium traders from Chinese law.

The first modern drug law in the western world was in England in 1868.  The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.”

Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.

As for state politicians keeping themselves busy attempting to keep their constituents safe, Arizona has over 4,000 statutory state-level crimes on its books (that’s in addition to the 5,000 federal crimes); North Carolina, where I went to law school, has added five sections to its criminal code each year since Wortd War II, and its legislature has added 318 new crimes since 2009 alone.” Anyone can be a criminal when there’s 5,000+ crimes to choose from:

The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.

Our country was born out of the English common law, and where there is a void, our courts still look to the English common law for clarification on may topics of criminal law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public.  There was no real police force anywhere.  Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded:

England in the 18th century had no public officials corresponding to either police or district attorneys. Constables were unpaid and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. Attempts to create public prosecutors failed in 1855 and again in 1871; when the office of Director of Public Prosecution was finally established in 1879, its responsibilities were very much less than those of an American district attorney, now or then. In 18th century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyranical and, worse still, French.

Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.

In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.

See Making Sense of English Law Enforcement in the 18th Century, Santa Clara University School of Law, 2 U. Chi. L. Sch. Roundtable 475 (1995).

Somewhere we left our English common law heritage, and the heritage of western civilization itself, to embrace becoming a police state society, seeking to control every aspect of human life. Anglo-American criminal law did not seek to control, or somehow enhance society, but rather to punish violators, reimburse victims, and to prevent future misconduct.

It was the authoritarian regimes of the Middle East and the Far East, which for centuries kept their subjects under their control, and which is a criminal justice model based on what they see as enhancing the community, in the form they see as most proper. As Professor Dubber wrote, the inevitable result of this sort of a police vs. citizen dichotomy is a divided nation:

In the communitarian approach to the question of police control, the battle lines are clearly drawn. On the one hand is the community of potential victims, the insiders. On the other hand is the community of potential offenders, the outsiders. The boundaries of these communities are not fluid. One either belongs to one community or the other. And it is the duty of the community of potential victims to identify those aliens who have infiltrated its borders, so that they may be expelled and controlled, and their essential threat thereby neutralized.

Policing Possession: The War on Crime and the End of Criminal Law, Markus Dirk Dubber, Journal of Criminal Law and Criminology, Vol. 91, Issue 4 (2001).

And here we are then, a divided country, full of people who would probably get along just fine as individuals, but who have been turned into competing interest groups in the politics of the criminal justice system.

Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms. The legacy of doing so, still reverberates today, constantly. This is where the so-called Constitution-loving conservatives suddenly realize, what a minute, you mean they can do that to me too?  But, but, but, I’m a law abiding citizen . . . .

The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.

Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.

They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.

Id. at page 92. The point is, you can’t claim to value the Constitution, and the original intent of the Framers, just because you support the Second Amendment, while at the same time supporting the world’s largest collection of criminal laws, criminalizing everything from the plants you like, to the thoughts in your mind. Imagine telling George Washington that a modern day Virginian can’t even distill, or possess, his own whiskey, for his own personal use, without permission from the government . . . . That’s where we’ve ended up, thanks to generation of do-gooders.

And it can always get worse, if the politicians are allowed to continue creating new criminal law violations in order to shape society how they think it ought to look.  You might think the unsuccessful “War on Drugs,” in the U.S. has been bad.  But take a look at Singapore. 70% of their executions are for drug related offenses, including possession. Singapore’s “Misuse of Drugs Act” creates a presumption of trafficking based on amounts possessed by defendants.  This law allows police to search people’s homes and their persons without a search warrant, and based only on a police officer having suspicion. It also allows police to forcibly perform drug screens of anyone they suspect of drug use. Each listed drug has its own “mandatory death penalty” threshold. In other words, if you possess 30 grams of cocaine, the penalty is mandatory execution. If you possess 500 grams of marijuana, the death penalty is also mandatory. As little as 15 grams of marijuana is presumed trafficking and may lead to life in prison. Even with these Draconian anti-drug laws, drug abuse in Singapore still exists, and is still increasing. See also Singapore’s drug problem compounded by online availability, Channel News Asia, National Edition, Dec. 13, 2019.

Make no mistake, at the current trajectory, this is where we’re headed.  The Washington Post ran an opinion piece in March of 2018, praising Singapore, claiming that they were winning the “War on Drugs.” It reads like the Singaporean version of “Baghdad Bob” authored it.  Yet, as recently as a month ago, Asian news outlets reported that drug use is increasing there. Beware the do-gooders, and remember, just because a politician is elected, doesn’t mean he has to do anything. Hell, do nothing. That’d be great.  Or better yet, start taking some damned laws off the books.