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December 10, 2008

Are the modern Second Amendment and Fourth Amendment on a collision course?

Though not (yet) a true sentencing issue, my deep interest in post-Heller gun litigation and my concerns about individual liberty have me wondering if the modern Second Amendment and Fourth Amendment are on a collision course.  Or, to be more precise, this post yesterday from The Volokh Conspiracy and this post yesterday from SCOTUSblog have me thinking again that Heller has extraordinary potential to create so many new issues/headaches in unexpected settings.

The post from Eugene Volokh reports on a federal district court decision last week, Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4), in which a federal district judge cites Heller in support of the proposition that "mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution."  The post from Lyle Denniston at SCOTUSblog reports on yesterday's Supreme Court argument in which the state of Arizona and the federal government argued for — and got Justices supporting — the broad proposition that police who encounter someone in a public place should have the authority to frisk that individual any time they fear he may be “armed and dangerous,” even if they have no suspicion that any crime has been or is being committed.

Connecting these dots suggests the possibility that Heller may give me and all other citizens (save those with any criminal record?) a constitutional right to possess a gun in public, but the reasonable probability that some person may exercise this right in turn provides police with ready and perhaps unlimited authority to frisk any and everyone in public based on the (ever-present?) fear of an armed and dangerous individual.  Of course, police authority to frisk everyone in public may be limited by statute, but it seems that a number of Justices are prepared to assert it has virtually no limit in the Fourth Amendment.

These issues get extra tricky given that big-city mayors like Mike Bloomberg seem prepared and eager to say that anyone armed within a city is necessarily dangerous (especially if his gun is loaded).  Could the Mayor of DC (or any other city that might have a gun ban struck down after Heller) instruct police forces to frequently and repeatedly frisk any and everyone who might be armed in order to make sure that any possessed gun is unloaded and/or in good working so as not to be dangerous?

The deepest irony here is that those Justices who have embraced broad individual gun rights in Heller seem to be the same Justices untroubled by police having broad power to search individuals for guns.  Their view is, apparently, that legislatures are quite constitutionally limited in their power to restrict gun possession, but police are not very constitutionally limited in their power to search anyone who might be in possession of a gun.  These positions do not conflict as a matter of logic, but they make for a strange relationship between government power, gun possession and individual liberty.

December 10, 2008 at 12:14 PM | Permalink


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It seems to me that the "and dangerous" part requires an articulable suspicion of dangerousness. The standard is conjunctive. Armed (being a constitutional right) cannot equal dangerous without more.

Posted by: DavidC | Dec 10, 2008 12:38:55 PM

I am going to be very intrested to see how the tension between the 19th century cases saying that open carry is protected ends up being squared with the modern reality that in many places having a holstered or slung weapon is enough for a breach of the peace charge. AFAIK those cases have not been overruled.

Posted by: Soronel Haetir | Dec 10, 2008 12:43:43 PM

I agree that the two do not conflict as a matter of *logic* but they conflict as a matter of *reason*. I agree with Davidc. If you want, you can read the word "reasonable" right out of the 4th if you want to. Or you can equate whatever reasons a policeman has with what is constitutionally reasonable. However, I don't think that most reasonable people would agree with either of those two situations. Reasonableness implies some social or cultural standard of reason to which one can defer. And if the two come into conflict, it will be because SCOTUS has failed to defer to that standard.

Posted by: Daniel | Dec 10, 2008 1:10:57 PM

I don't think there's a conflict here at all, any more than there's a conflict between, say, the fact that the 4A doesn't limit the right of the government to pay attention to things in public and the fact that the 1A protects the right to speak publicly. There are plenty of constitutionally-protected activities that the government has a right to know about, I think. The right to do something isn't the same as the right to do something secretly.

Posted by: Chris | Dec 10, 2008 4:33:36 PM

I think we'd all agree here that the best option is to just get rid of the police altogether. Then we won't have to worry about them trampling our rights. Hire accident and crime scene investigators for writing up reports. The country would improve 10 fold immediately.

An Atlanta cop with a gun presents significantly more danger than a non-LEO citizen with a gun.

Posted by: Edwin | Dec 12, 2008 11:23:38 PM

38 yr old steelworker.

About the last thing we need is to have police given even more power - the government is arguing in Arizona/Johnson that for any whim they police can detain, search, and seize property with impunity? I could be sitting on my porch, drinking a coffee and be subject to search from some police officer walking by, they can confiscate my holstered firearm to "run a check on it", etc? I cannot see how this broadening of police power squares with the constitution at all.

I also want to comment on something Chris said. The government has no right to know - as a matter of fact, the constitution was found to have a right of privacy thus Roe v Wade was decided. The government and other citizens have no business in my lawful affairs whatsoever.

Posted by: Mike | Dec 13, 2008 7:12:33 AM

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