The right to remain armed.

AuthorBellin, Jeffrey


The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could radically transform American policing. Evidence of handgun possession--whether from a tip or observation--is increasingly an inadequate justification for a Fourth Amendment stop; officers will struggle to articulate legal grounds for temporarily disarming citizens during face-to-face encounters; and the promise of gun-detecting technology as an alternative to invasive investigative techniques, such as pretextual arrests and frisks, may be squelched. Whether observers view these implications as beneficial, disastrous, or something in between, one thing is clear: courts, policymakers, and academics must begin to address the dramatic Fourth Amendment implications of an expanding Second Amendment "right to remain armed."

INTRODUCTION I. URBAN GUN POLICING A. Strict Licensing Regimes B. Detecting Noncompliance 1. Observations, Tips, and Admissions 2. Coercive Encounters 3. Gun-Detecting Technology II. SECOND AMENDMENT CHALLENGES TO GUN POLICING A. Handgun Regulation Under Siege 1. Legislative Easing of Gun Regulation 2. Judicial Invalidation of Gun Restrictions B. Transforming Gun Detector Scans into "Searches " C. Decreasing the Relevance of Guns to "Reasonable Suspicion" D. Preventing Officers from Temporarily Disarming Gun Carriers III. GUN POLICING IN AN ERA OF CONCEALED CARRY A. The Relatively Small Danger Posed by Licensed Gun Carriers B. Policing-Friendly Licensing Regimes? 1. High Minimum Age Requirements 2. "Gun License Inquiries" CONCLUSION INTRODUCTION

In December 2012, a deranged gunman killed twenty children and six adults at the Sandy Hook Elementary School in Newtown, Connecticut. (1) The school shooting sparked a national debate about firearms and, momentarily, raised the specter of a renewed push for gun control legislation. (2) In the end, however, the tragedy served only to highlight the power of countervailing forces in American society. Guns were indeed on the legislative agenda following Sandy Hook, but legislators generally sought to expand, not restrict, gun rights. In the year following the Sandy Hook shooting, almost every state enacted at least one new gun law, but "[n]early two-thirds of the new laws ease restrictions and expand the rights of gun owners." (3) Punctuating this trend, in 2014, Georgia enacted the "Safe Carry Protection Act," labeled by critics the "Guns Everywhere" law. (4) The law abolishes most limits on where people can carry firearms, loosens restrictions on who can carry a gun, and curbs the ability of police to investigate whether a person carrying a gun possesses a license. (5)

In the dwindling number of jurisdictions where legislators continue to support strict gun regulation, judges, rather than politicians, spearhead the gun-rights movement. The United States Supreme Court opened the judicial front in 2008 in District of Columbia v. Heller, (6) ruling that "the District's ban on handgun possession in the home violates the Second Amendment." (7) Heller's broader implications came into focus in 2014, when the Ninth Circuit applied the case to mandate that California cities permit law-abiding citizens to carry handguns in public. (8)

The sweeping changes to America's substantive gun laws reverberate throughout American policing. Particularly in America's cities, efforts to combat violent crime center on gun-policing strategies, colloquially known as "getting guns off the streets." (9) Echoes of this effort can be found in the earliest days of the Republic, and the strategy has become increasingly prominent in modern times. (10) Urban police chiefs identified handgun violence as the driving force in America's violent crime surge in the 1970s and 1980s. (11) Municipal policymakers reacted aggressively, enacting strict licensing regimes and handgun prohibitions. (12)

Strict gun regulations are designed to prevent violent crimes, like homicide and robbery, by empowering police to detect and deter public handgun carrying. Seeking to prevent incipient street crimes, officers stop people who appear to be armed--including those acting otherwise lawfully--citing suspicion of unlawful gun possession as the basis for the intrusion. (13) This form of gun policing drove the infamous New York City "stop and frisk" program; in the forms documenting the hundreds of thousands of stops conducted in the city in recent years, officers most frequently cited suspected "weapons possession" as the justification for a stop. (14)

Dramatic changes in the nation's substantive gun laws erode the constitutional underpinnings of urban gun policing. The Fourth Amendment generally requires police to possess "individualized suspicion" of a crime prior to conducting any search or seizure. (15) 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. (16) 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. (17)

The emerging reality across America, including its cities, is that carrying a concealed handgun is a perfectly "lawful act." (18) In Florida alone, the number of active concealed handgun carrying ("concealed carry") licenses climbed from 33,000 in 1988 to just over 1.4 million in 2015--covering roughly eight percent of Floridians. (19) The most recent estimate of active concealed carry licenses across America places the number at over 11 million (up from 4.6 million in 2007), or almost five percent of the population. (20) These ballooning numbers will eventually force judges (and police officers) to acknowledge that gun possession alone is a constitutionally dubious justification for a search or seizure. In light of the resurgent Second Amendment's softening of gun restrictions, urban police long trained to spring into action at the sight of a firearm may now be violating the Fourth Amendment when they do so. (21) Once seen as a lawful basis for searches and seizures, reports and observations of armed people, whether in the District of Columbia's pedestrian mall or the local shopping mall, may increasingly be met with shrugs from police officers who, legally speaking, have no basis to act.

America is engaged in two great debates: one regarding the proper limits of police efforts to proactively suppress crime, and another about the proper role of firearms in public. (22) This Article demonstrates that these debates, while generally conducted in isolation, are closely intertwined. It does so in three parts, roughly delineating the past, present, and future. Part I (the past) describes the traditional gun-policing tactics employed by urban police forces to suppress violent crime. Part II (the present) explains how the transforming gun-rights landscape undermines the Fourth Amendment validity of these staples of gun-oriented policing. Part III (the future) analyzes legal strategies that cities will likely turn to as courts and legislators increasingly invalidate restrictive gun laws. This final Part forecasts that local policymakers will try to suppress gun carrying and detect and deter unlawful gun possession by: (1) raising the minimum age for obtaining a "concealed carry" license; and (2) requiring lawfully armed citizens to present their license, upon request, to inquiring police officers. These efforts to reduce the number of lawful gun possessors and facilitate the detection and disarming of unlicensed gun possessors could approach the effectiveness of traditional urban gun-policing efforts because licensed gun possessors commit only a tiny fraction of violent street crime. (23) As Part III explains, however, these approaches are themselves subject to constitutional challenge and may generate unintended negative policy consequences, such as abusive police practices and racial profiling. (24) The discussion ultimately raises as many questions as it answers, but one theme resonates throughout: the emerging Second and Fourth Amendment "right to remain armed" has the potential to radically transform American policing.


    City residents absorb a fearsome and disproportionate share of America's gun crime, often in the form of robberies and murder. (25) Municipal efforts to combat these crimes target firearms, and particularly handguns. (26) One of the most vivid examples of this focus emerged in New York City in 1993 when voters, reacting to a cresting street crime epidemic, elected Mayor Rudolph Giuliani, who installed William Bratton as Police Commissioner. (27) Bratton crunched the numbers and determined that handguns were the principal driver of New York City's crime wave. (28) The first policy document promulgated by Bratton's police department (the "NYPD"), Police Strategy No. 1: Getting Guns off the Streets of New York, reported that between 1960 and 1992, the city experienced an almost two-thousand percent increase in homicides committed with handguns (a type of homicide that had grown from one quarter to three quarters of all city murders). (29) The strategy document concluded that "[i]llegal guns--particularly handguns--are an unrelenting and growing plague in New York."...

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