The gun-rights revolution raises some thorny constitutional questions.
The gun-rights revolution raises some thorny constitutional questions.
T he right to carry a gun in America has expanded drastically over the years. Especially from the 1980s through the 2000s, “shall-issue” concealed-carry laws — under which a concealed-carry permit is available to anyone who meets basic criteria such as completing firearms training and having a clean criminal record — spread through the states. More recently, about half of the states have gone “permitless,” allowing law-abiding civilians to carry a gun without getting a permit at all. And in last year’s Bruen decision, the Supreme Court affirmed a Second Amendment right to carry a gun, striking down New York’s requirement that permit applicants demonstrate a special need to carry.
These developments raise interesting questions regarding another part of the Bill of Rights: the Fourth Amendment, which protects citizens against unreasonable government searches and seizures. Specifically, as legal gun-carrying becomes more common and gains constitutional protection, it becomes less acceptable for police to stop and frisk civilians simply because they are armed. In a new brief for the Manhattan Institute, I wade through a debate on this topic that until now has mostly been confined to law reviews.
The issue starts with Terry v. Ohio, a 1968 Supreme Court decision that laid down the legal foundation of stop-and-frisk. Under Terry, a police officer who develops reasonable suspicion that a crime is afoot may stop and question a suspect to figure out what’s going on. If the officer also reasonably suspects the civilian is “armed and dangerous,” the officer may pat down or “frisk” the suspect’s outer clothing to search for weapons.
Decades ago, it was difficult or impossible for civilians to carry concealed weapons legally in many states. In those states, reasonable suspicion that a citizen was concealed-carrying pretty much was reasonable suspicion of crime. In turn, that very same suspicion of illegal weapon-carrying translated to a legitimate worry that the suspect was dangerous. “Getting guns off the street” was as simple as looking for poorly concealed guns and then, well, taking them.
Now that the laws are different, the Terry rules have created confusion regarding both stops and frisks.
Regarding stops, some courts reason that an officer doesn’t have reasonable suspicion that a crime is afoot unless he suspects that someone is armed and that the individual cannot carry legally. Elsewhere, however, courts have parsed the applicable state laws to find that a concealed-carry permit is merely an “affirmative defense” against the charge of carrying a concealed weapon — and that officers may initiate stops without ruling out that defense first. In a sense, permitted concealed-carriers are still breaking the law, and the permits just work as get-out-of-jail-free cards if they get caught.
Regarding frisks, there is division over the meaning of “armed and dangerous.” The most natural reading of the term dictates that, before a pat-down, the officer must reasonably suspect the individual is both armed and dangerous. But in restating the standard, the Supreme Court has sometimes used language suggesting that a suspect’s being armed implies danger to the officer. And if you go back further, you’ll find that this confusion is rooted in the Terry decision itself: One line of the decision adds an extra word to heighten the distinction (“armed and presently dangerous”); another contends it was reasonable for the officer in the case to think the suspect was “armed, and thus presented a threat to the officer’s safety” (emphases added).
In an appropriate case, the Supreme Court should resolve these disputes. But state legislators should also give some thought to this issue, from both angles: What degree of intrusion should legal gun-carriers be subjected to, and how many hoops should cops have to jump through as they try to take guns away from criminals?
One thing that seems obvious is that Americans shouldn’t face stops and invasive pat-downs merely for exercising their constitutional rights. To stop and/or frisk someone, police should need more than reasonable suspicion that the individual is exercising his right to carry a gun. In my new issue brief, using some data from the NYPD’s stop-and-frisk program, I show that such a higher standard need not end efforts to find illegal guns: Even in New York City, with its strict gun-control laws, Terry stops that locate guns are generally based on multiple factors, not just a raw suspicion that someone is carrying, at least according to the forms officers fill out afterward.
But states should retain some latitude to, for example, take a stricter stance toward concealed carry than toward open carry (since the former was commonly banned through much of U.S. history), or to require concealed-carriers to behave responsibly when carrying. I read a lot of court cases in researching these issues, and some of the alleged actions that brought gun-carriers to the attention of the cops will make any responsible gun owner cringe — from leaving an ammunition magazine in a basket at a laundromat, to flashing a firearm at friends in a pizzeria, to loading a gun in a parking lot, to dropping guns on the ground. Cops should be able to investigate people who are behaving oddly with firearms in public, even if there’s some chance the people behaving oddly are legally allowed to carry.
Given our country’s intense polarization, different states will evaluate these tradeoffs differently. But evaluate they all must, now that gun-carrying is both legalized and constitutionally protected.