Although the Second Amendment “right to possess and carry weapons in case of confrontation” is supposed to belong to all Americans, right now Adult Americans age 18-20 are excluded from the commercial market for handguns. They may vote, enter contracts, and marry. They are eligible to serve in the military and die for their country. And they have, obviously. But they are prohibited by the federal Government from purchasing handguns and handgun ammunition commercially. They can buy rifles or shotguns commercially, but not handguns, which according to the SCOTUS is “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” See McDonald v. City of Chicago (2010) (quoting Heller).
This week we filed a memorandum in support of our motion for summary judgment in the Second Amendment Foundation’s federal lawsuit against the ATF challenging the ban on sales of handguns to 18-21 year olds. Here’s the filing:
Following New York State Rifle & Pistol Ass’n, Inc. v. Bruen, if a law restricts conduct falling within the scope of the Second Amendment’s text, as the federal Government’s Handgun Ban does, that law is presumed invalid and can only be saved if the government demonstrates the existence of a “distinctly similar historical regulation” that burdened the right to bear arms in the same way and for the same reasons.
Of course, that doesn’t exist. At the time the Second Amendment was ratified, not only were there no laws in any state that purported to limit the rights of 18 to 20 year olds to purchase handguns for self defense, there were several laws enacted, including the Militia Acts of 1792, that required 18 year olds to buy and maintain firearms.
The correct historical period in examining the public’s understanding of the Right to Keep and Bear Arms is 1791. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” See Heller. The Second Amendment was adopted in 1791.The Government directs the Court to look at laws adopted in the late 19th century and beyond to justify their Handgun Ban. The Supreme Court has already made clear that 1791 is the appropriate period.
Even at the time that the Fourteenth Amendment was ratified, in 1868, only two states had a ban like the Handgun Bun and it would be another five years before another state adopted such a law. The ATF cannot point to any historical tradition that could justify the federal government’s attempt to deviate from the plain text of the Second Amendment. Therefore, we are asking the federal court to declare the federal Handgun Ban unconstitutional.
The U.S. DOJ announced in a press release today that police officers involved in the Kentucky shooting death of Breonna Taylor have been charged with federal felony civil rights violations. A federal grand jury in Louisville, Kentucky, returned two indictments that were unsealed today, and the Department of Justice filed a third charging document today, in connection with an investigation into the circumstances surrounding the death of Breonna Taylor, a 26-year-old woman who was shot and killed in her Louisville home on March 13, 2020, by police officers executing a search warrant.
“The Justice Department has charged four current and former Louisville Metro Police Department officers with federal crimes related to Breonna Taylor’s death,” said Attorney General Merrick B. Garland. “Among other things, the federal charges announced today allege that members of LMPD’s Place-Based Investigations Unit falsified the affidavit used to obtain the search warrant of Ms. Taylor’s home, that this act violated federal civil rights laws, and that those violations resulted in Ms. Taylor’s death.
“On March 13, 2020, Breonna Taylor should have awakened in her home as usual, but tragically she did not,” said Assistant Attorney General Kristen Clarke. “Since the founding of our nation, the Bill of Rights to the United States Constitution has guaranteed that all people have a right to be secure in their homes, free from false warrants, unreasonable searches and the use of unjustifiable and excessive force by the police.
The first indictment charges former Louisville Metro Police Department (LMPD) Detective Joshua Jaynes, 40, and current LMPD Sergeant Kyle Meany, 35, with federal civil rights and obstruction offenses for their roles in preparing and approving a false search warrant affidavit that resulted in Taylor’s death. The second indictment charges former LMPD Detective Brett Hankison, 46, with civil rights offenses for firing his service weapon into Taylor’s apartment through a covered window and covered glass door. The third charging document — an information filed by the Department of Justice — charges LMPD Detective Kelly Goodlett with conspiring with Jaynes to falsify the search warrant for Taylor’s home and to cover up their actions afterward.
The first indictment — charging Jaynes and Meany in connection with the allegedly false warrant — contains four counts. Count One charges that Jaynes and Meany, while acting in their official capacities as officers, willfully deprived Taylor of her constitutional rights by drafting and approving a false affidavit to obtain a search warrant for Taylor’s home. The indictment alleges that Jaynes and Meany knew that the affidavit contained false and misleading statements, omitted material facts, relied on stale information, and was not supported by probable cause. The indictment also alleges that Jaynes and Meany knew that the execution of the search warrant would be carried out by armed LMPD officers, and could create a dangerous situation both for those officers and for anyone who happened to be in Taylor’s home. According to the charges, the officers tasked with executing the warrant were not involved in drafting the warrant affidavit and were not aware that it was false. This count alleges that the offense resulted in Taylor’s death.
Count Two charges Jaynes with conspiracy, for agreeing with another detective to cover up the false warrant affidavit after Taylor’s death by drafting a false investigative letter and making false statements to criminal investigators. Count Three charges Jaynes with falsifying a report with the intent to impede a criminal investigation into Taylor’s death. Count Four charges Meany with making a false statement to federal investigators.
The second indictment —against Hankison — includes two civil rights charges alleging that Hankison willfully used unconstitutionally excessive force, while acting in his official capacity as an officer, when he fired his service weapon into Taylor’s apartment through a covered window and covered glass door. Count One charges him with depriving Taylor and a person staying with Taylor in her apartment of their constitutional rights by firing shots through a bedroom window that was covered with blinds and a blackout curtain. Count Two charges Hankison with depriving three of Taylor’s neighbors of their constitutional rights by firing shots through a sliding glass door that was covered with blinds and a curtain; the indictment alleges that several of Hankison’s bullets traveled through the wall of Taylor’s home and into the apartment unit occupied by her neighbors. Both counts allege that Hankison used a dangerous weapon, and that his conduct involved an attempt to kill.
The information charging Goodlett with conspiracy contains one count. It charges Goodlett with conspiring with Jaynes to falsify the warrant affidavit for Taylor’s home, and file a false report to cover up the false affidavit.
All of the civil rights charges involve alleged violations of Title 18, United States Code, Section 242, which makes it a crime for an official acting under color of law — meaning an official who is using or abusing authority given to that person by the government — to willfully violate a person’s constitutional rights. A violation of this statute carries a statutory maximum sentence of life imprisonment where the violation results in death or involves an attempt to kill. The obstruction counts charged in the indictments carry a statutory maximum sentence of 20 years; and the conspiracy counts carry a statutory maximum sentence of five years, as does the false-statements charge.
The charges announced today are separate from the Justice Department’s Civil Rights Division’s pattern or practice investigation into Louisville Metro Government and the Louisville Metro Police Department, which Attorney General Garland announced on April 26, 2021. The charges announced today are criminal against individual officers, while the ongoing pattern or practice investigation is a civil investigation that is examining allegations of systemic violations of the Constitution and federal law by LMPD and Louisville Metro. The civil pattern or practice investigation is being handled independently from the criminal case by a different team of career staff.
Today, the Supreme Court of the United States held that the Second and Fourteenth Amendments protect the right to carry firearms in public. Ultimately, the Court held that: “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” The ruling specifically challenged the law in New York, but will also apply to the eight other states that still maintain “may-issue” gun permitting laws, including California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island.
The Bruen litigation challenged concealed-carry restrictions under N.Y. Penal Law § 400.00(2)(f) that requires a showing of “proper cause” for the issuance of a carry permit. Lower courts upheld the New York law, but there were ample constitutional concerns over its vague standard, such as showing that you are “of good moral character.” New York wanted to exercise discretion in deciding who needs to carry guns in public, while gun owners rightfully argued that the law flips the constitutional presumption onto gun owners, rather than the government.
The 6-3 majority opinion, authored by Justice Clarence Thomas and joined by Justices Alito, Gorsuch, Kavanaugh, Barrett, and Chief Justice Roberts, rejected the “two-step” approach often employed by lower courts since the McDonald v. Chicago in 2010, saying that the Constitution “demands a test rooted in the Second Amendment’s text, as informed by history.”
The Court expressly held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Quoting the McDonald plurality opinion, the Court held that: “The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”
The Court said that: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”
Prior to today, the SCOTUS had only established a right to have a handgun in one’s home under the Second Amendment. Now, as was hoped for, and widely expected, the Court has now recognized that the right to “bear” arms includes the right to do so outside the home. States such as New York obviously still have numerous gun laws in place which restrict and affect this right. Going forward, Justice Thomas’s opinion means that courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.
Thomas correctly notes that in 1791, there was no broad prohibition on the public carry of firearms, with their exclusion only being limited to certain “sensitive places.” Some of the more low-information politicians and commentators out there today argue that only muskets were available in 1791, and that therefore we should now be limited to muskets. Setting aside the obvious flaws in their logic, which would likewise render the First Amendment inapplicable to modern forms of communication and technology, the story of America is interwoven with the invention, use, and perfection of, the American Longrifle. Which by its very definition is not a musket, and which was used respectively in war, acts of self defense, as well as for other uses such as recreation and hunting. One could also point out that cannons were indeed available in 1791, including ships full of them, lawfully available for private ownership and operation.
In response to the opinion, New York Governor Kathy Hochul expressed that she believed the opinion to be “absolutely shocking that they have taken away our right to have reasonable restrictions.” We can see where this is headed in blue states such as New York. What happens when state and local governments refuse to enforce federal constitutional law, such as the Bruen decision? The remedy available to citizens is to sue under 42 U.S.C. Section 1983 (i.e., a federal civil rights lawsuit).
But no so fast, since this is where qualified immunity comes in. There’s usually a lag period in between a change in the law and the time in which the federal courts will hold governmental officials (police officers) liable under Section 1983 for civil rights violations. The excuse is generally that police officers can’t be expected to know of every change in the law as it occurs and should be given what is essentially a grace period. Will that happen here if lawsuits are necessary (which I guarantee they will be), and if so, how long will that grace period last? We shall see…. It doesn’t help that federal law enforcement is already announcing their “respectful” disagreement with the opinion.
The U.S. Department of Justice issued a press release today:
“We respectfully disagree with the Court’s conclusion that the Second Amendment forbids New York’s reasonable requirement that individuals seeking to carry a concealed handgun must show that they need to do so for self-defense. The Department of Justice remains committed to saving innocent lives by enforcing and defending federal firearms laws, partnering with state, local and tribal authorities and using all legally available tools to tackle the epidemic of gun violence plaguing our communities.”
Wait, how does separation of powers work? Also, which Article or Amendment to the Constitution creates and governs the DOJ? I suppose the Framers should have provided an option for an agency of the executive branch to “respectfully disagree” with a “conclusion” of the Supreme Court.
Qualified immunity will not be a defense to cities and county governments who adopt policies and practices that violate federal constitutional rights, now including the Second Amendment as defined by Bruen. This is because political subdivisions cannot assert qualified immunity, as per the U.S. Supreme Court, who created qualified immunity out of thin air in the first place. State governments, on the other hand, have no need to assert federal qualified immunity, because they cannot be sued for money damages in federal courts.
Here’s the Petition for Rehearing and Petition for Rehearing En Banc we filed yesterday in the Walker AR-15 open carry case, which will give effectively stay the case while the other judges on the Fourth Circuit have an opportunity to review our petition and consider whether to get involved.
If the Panel Opinion remains, Black is meaningless, because there will always be “more” available to any police officer. Even if an individual has violated no law, they will be subject to detainment based on any speculative crime which generally could be committed by any anonymous person. A man walking in the direction of any woman might be a rapist, given that he would appear to have the physical ability to carry out a rape. Any driver of a car heading in the direction of any other human being might be a potential murderer, because they appear to have the physical ability to run-over people, should they so choose. The analogies could go on and on because, like the Michael Walker case, these scenarios are all generalized, rather than based on individualized reasonable suspicion.
Deputy Donahoe did, and claims to have done numerous other times, exactly that which Black forbade: to assume that being a felon in possession of a firearm was the default status; that, without more, he could detain and ID anyone he saw with a firearm. He admitted that he had no information that Walker may have been a prohibited person. (J.A. 162:5-8). Donahoe admitted under oath that had no indications that Mr. Walker was a threat to anyone, nor appeared to have any ill intentions (J.A. 167:1-4). Donahoe told Mr. Walker at the beginning of the stop, “At this point, I have the absolute right to see whether you’re legal to carry that gun or not.” (See J.A. 209 – Video of Incident).
The District Court acknowledged that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540 (J.A. 326). There was no “more.” Walker had committed no crime. He wasn’t observed committing a crime. Not a single person alleged that a crime was committed by Michael Walker. To allow a police officer’s subjective fear of AR-15s, or of theoretical copycat crimes, to be utilized as “more,” effectively swallows the rule. This opens the door to racial profiling, and so on. To allow the Panel Opinion to stand is to unravel Black, and important civil rights protections.
On the heels of the Fourth Circuit’s awful anti-gun opinion in the Walker case, comes an opinion today which holds that 18-20 year olds have a constitutional right to keep and bear arms under the Second Amendment. Federal law prohibits the sale of handguns and handgun ammunition to 18-20 year olds by licensed dealers. In an opinion written by Judge Richardson (appointed by Trump), the Court held that “Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights.”
There are many things that minors and even those under 21 cannot do. See Ent. Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). But none of those restrictions implicate constitutional rights, so states have great leeway to regulate those activities under their general police powers. And while the Court has “recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” that does not mean that children necessarily have different rights than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the states’ interests are stronger with regard to minors so restrictions may more easily pass constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude that 18- to 20-year-olds have no Second Amendment rights when almost every other constitutional right affords them protection. This conclusion becomes inescapable when we consider the history.
Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.
I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.
Join me live at 7pm for a discussion on the ruling:
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.
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.”). SeeHeller, 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. SeeHeller, 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 (citingU.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 Statesv. 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 theDC Circuit have extended Heller outside the home
Both the 7th Circuit and the DC Circuit have made such an extension. SeeMoore 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 alsoPalmer 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. SeePeruta 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. SeeKolbe 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, seeUnited 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. SeeNorthrup, 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. SeeSt. 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.
SeeJ.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.
Check out Episode 1 of the John Bryan PODCAST, where I pontificate on several topics, including impeachment evidence we’ve supposedly been hearing about, some search and seizure issues pertaining to the open carry of firearms, some self defense firearms issues, and a really crazy discovery that generic brand blood glucose meters, used by diabetics, are apparently way, way off……