Earlier this week, the Pennsylvania Supreme Court delivered a message that the United States Supreme Court desperately needs to hear: The lawful exercise of your Second Amendment rights does not make you a second-class citizen.
Here’s the context. For the last two years, federal courts — including, sadly, the Supreme Court — have endorsed a legal regime where police can use even the lawful exercise of gun rights as a pretext for the violation of other constitutional rights, principally our Fourth Amendment right against unreasonable search and seizure.
For example, in 2017, the Eleventh Circuit held that a police officer enjoyed immunity from suit when he pounded on the door of the wrong apartment late at night, failed to announce himself, and then shot dead a young man when he lawfully answered the door, armed. The existence of the gun granted the officer the right to shoot with absolute legal impunity.
Two months later, the Supreme Court ruled in favor of police officers who, without a warrant, entered the modest dwelling (a one-room shack) of a man named Angel Mendez and opened fire when he pointed a BB gun at them. Mendez lost his leg. His girlfriend was also injured. SCOTUS then used this case as an occasion to reverse a Ninth Circuit use-of-force rule that would impose liability when police “provoke” a violent confrontation through an “independent Fourth Amendment violation.”
But perhaps the best expression of gun owners as second-class citizens under the Bill of Rights came from the Fourth Circuit Court of Appeals. The court ruled that police could frisk a person if they believed that the person carried a firearm, even if he possessed a concealed-carry permit. According to the court, “the danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession” (emphasis added).
In a concurring opinion, a federal circuit-court judge actually typed these words:
The majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock-and-announce” before forcibly entering homes. . . . Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.
In plain English, this means gun owners must choose: carry their weapon and lose the full protections of the rest of the Bill of Rights, or never pick it up and enjoy your other rights. For people who live in high-crime areas, people who are often poor and sometimes nonwhite, this presents a wholly unacceptable dilemma. The people who have the most urgent need for self-defense find themselves facing the greater risk of the loss of their liberties.
Enter the Pennsylvania Supreme Court. In Commonwealth v. Hicks, police responded to a citizen call after Hicks was spotted showing his handgun to another person outside a convenience store. He did not rob the store. He did not do anything illegal. He was a concealed-carry holder in lawful possession of his gun. “Numerous” police officers responded to the call, stopped the vehicle, restrained him, and conducted a search. They smelled alcohol and found a small bag of marijuana. They then arrested him for driving under the influence and disorderly conduct.
Hicks challenged the legality of his arrest, and while the trial court dismissed the disorderly-conduct charge, it upheld the legality of the initial search. The court ruled that “possession of a concealed weapon in public creates a reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed.”
Thus any concealed-carry holder could be subject to search simply because he chose to carry his weapon, to exercise rights guaranteed by state law and buttressed by the Bill of Rights.
The state supreme court disagreed, holding that it could “find no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public.” It continued:
Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.
This is exactly correct, and it’s buttressed by the plain constitutional truth that there exists “a first principle that lies at the heart of the Fourth Amendment — that the government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes.”
The Pennsylvania Supreme Court notes that SCOTUS has not addressed the specific legal questions at issue. When the right case arises, it must. And when it does, it should note once and for all that gun possession — by itself — does not compromise the protections of any other constitutional right.
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