Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue. Continue reading
Tag Archives: second amendment
Earlier this year, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022), holding that New York could not constitutionally require residents to show a special need (beyond the general concerns about self-defense that any person might have) in order to obtain a permit to carry a handgun outside the home. I wrote a detailed summary of the case in this prior post. North Carolina doesn’t require any such showing, so the direct impact on our state was minimal.
However, Bruen’s holding arose from a new interpretive approach. The Court rejected the intermediate scrutiny test most lower tribunals had used when analyzing gun laws and replaced it with a historical analysis in which a limit on gun rights is constitutional only if it is “consistent with the Nation’s historical tradition of firearm regulation.” Lower courts have now begun to apply this framework to assess the constitutionality of various gun laws. The early returns suggest that Bruen’s impact may be substantial across a wide range of federal and state gun laws. Continue reading →
About a year ago, Shea wrote about red flag laws, sometimes called gun violence restraining orders or extreme risk protection orders. More than a dozen states have such laws, and several bills are pending in the General Assembly that would enact a red flag law here. But are red flag laws constitutional? Continue reading →
Several federal circuit courts have decided Second Amendment cases over the past few months. This post summarizes them. The cases and the reasoning behind them are not all completely consistent, but collectively, the courts continue to interpret the Second Amendment as permitting substantial levels of gun control.
The Second Circuit just decided a case regarding gun control legislation in Connecticut and New York. It’s important in its own right, and because it concerns two issues that the Supreme Court could soon take up: bans on assault weapons and on high-capacity magazines. Continue reading →
Regular readers know that I try to keep abreast of changes in gun laws, both because guns are involved in a significant number of serious crimes and because the gun laws themselves are often criminal provisions. There’s been considerable recent media coverage of a proposal by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to change the legal status of a specific type of ammunition. Depending on who you talk to, the move is either a technical reclassification that will improve officer safety at no significant cost to law-abiding gun owners, or President Obama’s first step towards gun control by executive action. As usual for a School of Government piece, this post doesn’t take a side, but does provide some facts. Continue reading →
There’s been a great deal of litigation recently about firearms and the Second Amendment. But guns aren’t the only “arms” sometimes carried for self-defense, and there have been several recent cases about the status of knives under the federal Constitution and state constitutions. Continue reading →
On balance, Americans like freedom, choices, and guns. It would seem to follow that Americans would support a free market that gives us an array of choices among guns. Yet some gun rights advocates are pressuring gun dealers not to sell so-called smart guns, which can “recognize” their owners and can only be fired by them.
Death threats to gun dealers. This Washington Post story recounts the experience of Andy Raymond, owner of Engage Armaments in Rockville, Maryland, after he agreed to sell the Armatix iP1 smart gun. The gun is a .22 caliber semi-automatic pistol that won’t shoot unless it is in proximity to a special watch worn by the owner. If the gun is stolen, or if a child somehow obtains the gun, it won’t fire. (It also won’t fire if the watch battery is dead or the owner forgot to wear the watch that day.) The story notes that Raymond “endured an outpouring of vitriol from gun rights activists who fear the technology will be used to curtail their Second Amendment rights by limiting the kinds of guns they can buy in the future.” Vitriol is an understatement. Raymond received death threats, as he explains in a short and emotional video linked to the article. He has changed course and will not sell the gun after all. A California gun dealer previously had a similar experience.
Not a smart choice for self-defense? It’s reasonable to argue that the current crop of smart guns aren’t the best choice for self-defense, because they are complex and potentially failure-prone. This Forbes piece makes that argument well. But Raymond’s viewpoint is that the consumer should be free to choose the mix of safety features, reliability, and stopping power that he or she prefers.
Worries about New Jersey’s smart gun law. Those who oppose the sale of smart guns sometimes cite the fear that the sale of such guns will trigger – so to speak – a 2002 New Jersey law that requires all handguns sold in the state to be smart guns within about three years after such guns first become “available for retail sales.” The law is here. It defines availability to mean that “at least one manufacturer has delivered at least one production model of a [smart gun] to a registered or licensed wholesale or retail dealer in New Jersey or any other state.” The state’s Attorney General is supposed to report to the legislature and the governor every six months regarding the availability of smart guns. (According to the Brady Campaign to Prevent Gun Violence, the required reporting is not happening.) Two years after availability, the Attorney General is supposed to instruct the Superintendent of State Police to draw up a list of smart guns. The Superintendent has six months to finish the list. Six months after the list is complete, the sale of handguns other than smart guns becomes a crime.
Worries about the New Jersey law are overblown. I doubt that worries about activating the law should keep gun rights advocates, or gun dealers, up at night, for two reasons. First, the availability threshold may already have been passed. Several manufacturers either offer such guns or are on the brink of offering them, according to this Department of Justice report. At least two dealers have briefly expressed a willingness to sell smart guns, though no actual dealer sales have been reported. (Another manufacturer sells an accessory for converting guns into smart guns.) Second, whether or not the tipping point has been reached, the law, which was written before the Supreme Court’s landmark Heller and McDonald cases regarding gun rights, is likely unconstitutional.
The broader context. The general concern that the availability of smart guns will result in calls for wider adoption of the technology may be well-founded, as this Christian Science Monitor article observes. Indeed, outside the gun context, safety features once viewed as complicated, unreliable, and intrusive – like seat belts and air bags – have become mandatory and accepted. Whatever the worries, though, I doubt that the technology can be suppressed in the long run. There is a market for the guns, with between 14 and 59 percent of gun owners, depending on the survey, expressing an interest. And this is America, where we like freedom, choices, guns . . . and technology.
This week, the court of appeals decided State v. Price, an interesting gun rights and Fourth Amendment case.
Facts. The defendant was standing in a forest, near a deer stand, holding a rifle, in full camouflage, when a wildlife officer approached him. The officer asked the defendant for his hunting license, under the license check authority of G.S. 113-136(f). The officer then asked the defendant whether he was a convicted felon, and the defendant admitted that he was. The officer called another officer for backup, and they seized the defendant’s gun. The defendant was subsequently charged with possession of a firearm by a felon.
Trial court proceedings. The defendant moved to suppress his statement about his criminal record, and his gun, apparently on the basis that the inquiry regarding his record unduly prolonged the license check and that without the admission, there would have been no basis for seizing the gun. The judge agreed with the defendant’s argument but ordered dismissal, rather than suppression, as the remedy. The defendant also argued that the felon-in-possession statute, G.S. 14-415.1, was unconstitutional as applied to him, because his possession of a firearm did not pose a danger to the community. The judge stated that he agreed with that argument, too, but that he was “dismissing [the case] not based on those grounds,” instead relying on the Fourth Amendment violation. Confusingly, the judge eventually signed two written dismissal orders, one based on the Fourth Amendment violation and one based on the Second Amendment claim. The State appealed.
Second Amendment issue. The court of appeals first addressed the defendant’s constitutional challenge to G.S. 14-415.1. The court observed that under Britt v. State, 363 N.C. 546 (2009), and State v. Whitaker, 201 N.C. App. 190 (2009), as-applied challenges to the statute require consideration of the following factors:
- The type of felony conviction(s) at issue, including whether the conviction(s) involved violence
- How long ago the conviction(s) took place
- “The felon’s history of law-abiding conduct since the crime”
- “[T]he felon’s history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited”
- “[T]he felon’s assiduous and proactive compliance with the 2004 amendment” to G.S. 14-415.1 (rendering it applicable to all guns everywhere rather than just handguns outside the home)
The court rejected the defendant’s as-applied challenge, noting that he had three prior felony convictions, two for selling marijuana and one for an attempted deadly weapon assault. The assault conviction was “more recent[],” as it took place in 2003. And, while there was “no evidence . . . that the defendant has misused firearms, there [was] also no evidence” that the defendant had complied with the Felony Firearms Act, as he possessed his hunting rifle in violation of the statute. The court’s discussion is consistent with my general impression that individuals with felony convictions are much more likely to win the argument that they are constitutionally entitled to possess firearms when that argument is made proactively in a lawsuit against the state than when the argument is raised as a defense after being arrested in possession of a gun.
Fourth Amendment issue. The court also reversed on the Fourth Amendment issue, concluding that once the defendant produced his hunting license to the wildlife officer, he was free to leave. Thus, the further discussion regarding the defendant’s criminal record was consensual, not part of a seizure, and was outside the scope of the Fourth Amendment. (And once the defendant admitted to being a felon, the rifle itself was properly seized as evidence of a crime that was in plain view.) This result is generally consistent with the courts’ treatment of traffic stops, where the return of the driver’s license to the driver generally marks the end of the seizure and the beginning of a consensual encounter. My paper on traffic stops – available here – discusses that issue in detail.
Case study: the Neenah stop. Recently in Neenah, WI, a woman called the police to report a man with a gun strapped to his back walking down the street. The call was placed to the non-emergency police number and the caller didn’t report that the man was doing anything threatening, but she did suggest that the police check on the situation. As a result, an officer stopped the man and his companion. The officer engaged in a protracted dialogue with the man, at one point telling the man that he would be shot in the head if he made any furtive movements. Other officers also responded, and at least one drew her weapon. The man who was stopped remained calm throughout the interaction and was eventually permitted to depart. The full 18-minute video of the stop is here. A local news article about the stop is here. It has generated quite a bit of controversy. Were the officer’s actions lawful and justified by public safety concerns? Or was it an unjustified response to lawful open carry? This post breaks down the legal issues.
Legality of open carry. From media reports and statements made by the officer during the stop, there appears to be no question that open carry is legal in Wisconsin. In fact, it seems that during a recent revision of its disorderly conduct statute, Wisconsin changed the law to protect open carry. Wis. Stat. § 947.01(2) (“Unless other facts and circumstances indicate a criminal or malicious intent . . . a person is not in violation of . . . this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.”)) As I noted in this prior blog post, open carry is generally legal in North Carolina as well.
Was the stop justified? A Terry stop requires reasonable suspicion that the subject of the stop is engaged in criminal activity. Carrying a gun openly isn’t criminal in itself. Nor, under most circumstances, is it particularly indicative of other criminal activity. In some instances, though, such as when there is a large group of armed individuals in an unusual location, or when an individual displays his or her firearm in a menacing manner, a Terry stop may be appropriate. There is limited case law in this area, and the few reported decisions aren’t always consistent. Consider the following:
- United States v. Black, 707 F.3d 531 (4th Cir. 2013) (“[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”)
- United States v. Williams, 731 F.3d 678 (7th Cir. 2013) (two judges found reasonable suspicion to support a Terry stop based principally on a 911 call reporting a group of about 25 people outside a rowdy bar, three or four of whom had their “guns out”; one judge would have found no reasonable suspicion in light of increasing legal support for open carry)
- Burgess v. Wallingford, 2013 WL 4494481 (D. Conn. May 15, 2013) (unpublished) (holding that a Terry stop was justified based on reports “that a man carrying a weapon [openly] on his person was pacing outside of a pool hall”; this provided reasonable suspicion of disorderly conduct; the court states that “[w]eapons cause unique concerns for the safety of the public and the police”).
- Banks v. Gallagher, 2011 WL 718632 (M.D. Pa. Feb. 22, 2011) (unpublished) (holding that an investigative detention was proper in light of “multiple fearful calls to 911 by concerned citizens, the unusual and unprecedented circumstance of nearly a dozen armed men in a family eating establishment refusing to explain their purpose,” and other factors)
- Schubert v. City of Springfield, 589 F.3d 496 (1st Cir. 2009) (holding, in connection with a 42 U.S.C. § 1983 claim, that an officer properly stopped a pedestrian who was wearing a holstered handgun and walking towards a courthouse; that the gun seems to have been somewhere between concealed and carried openly, so the case isn’t perfectly on point)
I tend to think that the Neenah stop was improper, as there wasn’t much to suggest criminal intent on behalf of the subject. But again, the law’s not completely settled in this area.
Scope of the stop. Assuming arguendo that the Neenah stop was lawful at its inception, I doubt that the officers were justified in detaining the subject for more than 15 minutes. Much of the stop consisted of the officer remonstrating with the subject about the Second Amendment. Investigative stops must be brief, and it was clear early on that the subject was calm, rational, and interested more in publicity than in criminal activity.
Alternatives for officers. None of the foregoing means that officers can’t respond to community concerns about people carrying guns openly, a phenomenon that is unsettling to many citizens. An officer can always seek to engage a person carrying a gun in a consensual conversation. That conversation may allay any concerns the officer has, or it may increase the officer’s concerns to the point that an investigative detention is justified.
Further reading. The Pennsylvania Chiefs of Police Association published this short paper for officers about dealing with people carrying guns openly. Some of it is specific to Pennsylvania, but much of it strikes me as sound advice for North Carolina officers as well. Michigan’s Law Enforcement Action Forum published this analysis of the legal issues officers face when dealing with open carry. If others are aware of other resources, please let me know or post a comment.
