At National Review, David French takes the Fourth Circuit en banc to task for failing to toughen up.
There’s an old saying that “bad facts make bad law.” In other words, the desire to punish bad people and prevent perceived miscarriages of justice can lead judges to craft overbroad or oppressive opinions that ultimately lead to far worse outcomes. But judges are supposed to wrestle with bad facts, tease out the true and appropriate legal standards, and keep in mind the consequences of their opinions. So, no, bad facts don’t make bad law. Bad judges do.
He has a point, that the job of judging isn’t limited to easy cases with clean, sanitary answers. But to contend that there are “true and appropriate legal standards” is painfully naive. The law is a Rube Goldberg machine, built over centuries, replete with rights and doctrines in perpetual conflict, and when they clash, the answers get messy and ugly. Somebody’s rights will end up coming in second, which in law means they lose.
How rights and doctrines happened can be critical to appreciating why, downstream, another right ends up getting the booby prize. That’s the case in United States v. Robinson.
The Fourth Circuit Court of Appeals just suffered from an outbreak of bad judging. In an en banc opinion, the court ruled that after a lawful traffic stop, the police may frisk any person who they believe may possess a firearm, regardless of whether that person possesses a concealed-carry permit. The court actually typed this sentence: “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.) The implications were clear: Even lawful gun owners are by definition “dangerous” and can be broadly treated as such by the state.
Spot the prerequisites to the part that makes French’s head explode? First, there was a lawful stop. Except it was a stop based upon the occupants of a vehicle not wearing seatbelts, except that wasn’t the subjective reason for the stop. That was the pretext. Can you say Whren?
Then there is the “police may frisk any person who [sic] they believe may possess a firearm” piece. This, of course, began with Terry v. Ohio, allowing a protective frisk of a person the police believe to be armed and dangerous. This was extended in Michigan v. Long to passengers of cars, even though they are merely bystanders to whatever pretextual cause gave rise to the stop.
But a key component to the analysis is Terry’s “armed and dangerous.” Terry was decided in 1968, long before Heller was a twinkle in Alan Gura’s eye. At that point, there was no fundamental individual Second Amendment right to keep and bear arms, and so Terry wasn’t decided in light of this potential clash. Instead, the implicit assumption was that anybody with a gun was a bad dude and therefore inherently dangerous to a police officer.
Sure, there were people back in ’68 who had carry permits, but they were a select group and, assumptively, unlikely to be the sort of people cops would stop. After all, only people pure of heart (ahem) were allowed to carry guns, at least from the perspective of a Supreme Court justice.
Moreover, it was understood that when a gun-toter was stopped by the cops, the first thing they did was alert the cops that they were carrying, had a permit and paid their NRA dues. Then they hugged and kissed, and all was well.
But post-Heller, these assumptions upon which precedent was based no longer hold true. If carrying a gun is a fundamental individual right, and pretty much anyone who isn’t crazy or an ex-felon can do it, then the combined words “armed and dangerous” no longer go hand in hand.
Moreover, the evidence is simply overwhelming that holders of concealed-carry permits are extraordinarily law-abiding — perhaps even more law-abiding than the police. According to the Crime Prevention Research Center, police commit crimes at a rate of roughly 124 crimes per 100,000 officers. That’s an extraordinarily low rate (the general public’s crime rate is 31 times greater). In Florida, by contrast, concealed-carry permit holders committed misdemeanors or felonies at a rate of 12.5 per 100,000. In Texas, the rate was 20.5 per 100,000. In other words, “armed” does not equal “dangerous” when a person carries lawfully, with a permit. Lawful gun owners are not a threat to the public or to the police.
All of this may be true, and understood to be the case today, but that wasn’t the case when Terry was decided. Yet, that may not be the crux of the problem.
But don’t tell that to a majority of the Fourth Circuit. To them, armed is dangerous, and your decision to lawfully carry a weapon opens you to the possibility of a police frisk merely because you exercise a constitutional right. Indeed, Judge James Wynn, writing in concurrence, made the majority’s reasoning terrifyingly clear:
In sum, individuals who carry firearms — lawfully or unlawfully — pose a risk of danger to themselves, law enforcement officers, and the public at large. Accordingly, law enforcement officers may frisk lawfully stopped individuals whom the officers reasonably suspect are carrying a firearm because a detainee’s possession of a firearm poses a categorical “danger” to the officers.
It’s the “categorical” presumption of dangerousness, derived merely from the possession of a gun, which may be the exercise of a fundamental constitutional right, that makes this holding “bad.” But then, one still has to factor in the “weighty” concern of officer safety from Pennsylvania v. Mimms:
We think it too plain for argument that the State’s proffered justification—the safety of the officer—is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.”
In other words, there is a clash of rights and doctrine here, where a constitutional right to carry a gun smashes headfirst into the “legitimate and weighty” justification of officer safety. But there is no “officer safety exception” to the Constitution? True enough, yet that has guided Supreme Court Fourth Amendment jurisprudence forever.
So the problem that David French has with the Fourth Circuit’s holding isn’t really that this is a bad court, but that this is a court applying a century of bad law that places officer safety above constitutional rights. Now that the clash involves the Second Amendment, it’s a problem. It was always a problem. It’s just that you didn’t care until now. That’s how law happens.
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How many people of French’s persuasion were cheering for opinions like Terry, Whren, Long, and Mimms – especially when the contraband involved was drugs rather than guns?
And for those who didn’t get the message, this is the message. Cue Niemöller.
“In sum, individuals who carry firearms — lawfully or unlawfully — pose a risk of danger to themselves, law enforcement officers, and the public at large. ”
Even if they are cops.
Mad sick burn skillz.
That was my thought as well.
Great. PV’s comment was insipid, and you needed to “me too,” because one insipid comment is never enough.
FWIW, the en banc Court here was reversing a prior decision by a panel that as far as I am aware was a complete outlier. Take a look at LaFave’s treatise, and then walk by his office and chat with him on this (I have).
So you were dying to mention Wayne LaFave? How nice. If you have nothing to add on topic, don’t comment.
Why did you put a “[sic]” in that quotation? If you believe that the sentence should have used “whom” instead of “who,” that would be an error. Although “who” and “may” were separated by “they believe,” “who” is still the subject of the verb “may” in that sentence, and you ordinarily use “who” as the subject of a verb. If there’s some error I’m missing that prompted the “[sic],” please excuse this interruption.
Big fan of the blog, by the way.
You have to take it up with my editor. I get who and whom wrong constantly.
Edit: My editor tells me I’m wrong and am a fool for listening to him anyway. So, will correct.
“After all, only people pure of heart (ahem) were allowed to carry guns, at least from the perspective of a Supreme Court justice”
Thanks for this. Not many folks realize that most of the laws regarding carrying of firearms were passed with a view to preventing non-whites from being armed. The laws were seldom enforced against whites, but served as an excellent pretext to arrest your average minority citizen.
Counselor,
I think you are guilty of the sin, making people more stupid, that you so often rail against.
“Terry was decided in 1968, long before Heller was a twinkle in Alan Gura’s eye. At that point, there was no fundamental individual Second Amendment right to keep and bear arms, and so Terry wasn’t decided in light of this potential clash. ”
The right to keep and bear arms was always an individual right. To argue otherwise, one must be prepared to make the case that either the framers of the constitution either didn’t believe in the right to self defense, arguably the most basic human right, or that when describing and enumerating the most basic human rights they somehow neglected to make any provision to protect the right to defend oneself. Either proposition is preposterous.
Further, we know, from contemporaneous sources, that the founders considered an amendment that read “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms for the common defense, shall not be infringed.” This language was voted down in favor of that in the current Second Amendment, eliminating the phrase “for the common defense”. If the right isn’t limited to the common defense, it clearly implies the right to bear arms for self defense.
The notion that the Second Amendment described some sort of collective, or militia, right is a relatively recent fiction that comes of misinterpretation of the SCOTUS Miller decision, semantic contortions, and wishful thinking on the part of “gun control” advocates.
Oh Hal. You make me sad. I wouldn’t think it possible anyone could be this dense and still be capable of breathing.
Actually you’re both right. Back in the day the RKBA wasn’t an “individual right,” it was simply a right, in the same way that a clock wasn’t an “analogue clock.” “Analogue” clocks didn’t come along until digital clocks were invented, and there was a need for a term that meant “clock that isn’t digital.”
I remember in the 1990s (yes, I’m that old) when the “collective right” theory was first advanced. Prior to that everyone who could read the Declaration of Independence understood that “rights” pertained to individuals.
I recall an Army field manual for civil disturbances, c 1970, which explicitly stated that in the U.S. the military, even under martial law, could not disarm citizens who were not breaking laws, since they had a right to keep and bear arms. Wish now I had kept it.
Actually, we’re not. And actually, it’s not up to you. You’re a little closer to getting this than Hal. This has nothing to do with what the right is or isn’t (regardless of whether you believe it to be collective or individual, or whether it always was or only became that way after Heller). This has to do with what the law was during the period of time before Heller, and the law was that it was a collective right. That was second amendment law during the formation of the other law relating to Fourth Amendment exceptions.
That’s the point of the post, which is apparently obvious to lawyers and difficult, if not impossible, for non-lawyers “passionate” about RKBA to grasp. This isn’t an argument. Hal is stuck on the wrong path, having nothing to do with the post. You may be able to come back from the brink. Maybe not. Either way, the post is about what it’s about, regardless of whether non-lawyer gun aficionados get it.
I think you could be more plainspoken in your language. If I were writing this post it would be kinda like: “The law is a… machine, built over centuries, replete with rights and doctrines in perpetual conflict, and when they clash, the answers get messy and ugly. Somebody’s rights will end up coming in second, which in law means they lose.” You know, like a 5 year old could get “it”.
Then I would repeat a variation of this several times throughout the post. Maybe using the word clash, as in “clash of rights”, ’cause everyone and their mother has seen Clash Of The Titans (1981).
Could be a great blog. Too many fancy pants word. So sad.
I kinda suck at this writing thing, but I’m working on it.
Probably would have helped if I used this:
Really? That’s your response? An ad hominem attack?
[Ed. Note: A thousand words deleted.]
It it seems pretty clear to me that an individual right to arms far predates Heller.
While struggling to breathe, I remain interested in learning, so feel free to educate me as to why this is incorrect. Please use small words, because I’m so dense and all.
The post was about the the state of the developing law as held by the Supreme Court and how it got from there to here. While I was inclined to trash your comment in its entirety as you so completely missed the point, I tell you this as a courtesy. I do not write each post for the one guy who doesn’t get it. I do not re-explain each post for the one guy who doesn’t get it. If you still don’t get it, you can’t be helped.
> the one guy who doesn’t get it.
Like Murphy, you’re an optimist.
Is there anything unclear about this? Have I so seriously overestimated the ability of people to understand the relatively uncontroversial concept of how precedent works? It’s just not that hard.
Oh, most people can get it, of course. But that might require reading carefully and thinking hard, as well as the ability to calmly discuss the fact of existence of pre-Heller collective right case law without hyperventilating and exploding about how all those prior cases were wrongly decided.
Just put those people in a room with everybody who hyperventilates about how Heller was wrongly decided, and walk away slowly.
Speaker: “I would like to show you how law and constitutional rights are similar to Le Chatelier’s principle. I’ll also flesh out my argument with carefully selected examples that bolster my argument. I anticipate your touche with glee.”
Audience:
“If it’s not a Glock suck my…”
“I always get a schadenboner when reading Heller. Suck it, Shannon Watts. Scalia pwned you!”
“The Second Amendment *is*my carry permit!”
“ZOMG! It’s not direct impingement. The bolt carrier *is* the piston!”
Speaker: “Bartender, your finest grain alcohol. Neat. Make it a double.”
I fully appreciate how childish this is, but I laugh every time I see “schadenboner.” There ought to be a German word for that.