Possessing a Licensed Firearm Does Not Make One “Armed and Dangerous”

Since the U.S. Supreme Court decided the case of District of Columbia v. Heller less than two years ago, holding that the 2^nd Amendment recognizes an individual, as opposed to collective, right to bear arms, while giving no guidance as to the actual scope of that right, many interesting cases from state courts and lower federal courts have come out, testing the bounds of the right. To be sure, it will be many years before the exact scope of one’s right to own guns is settled with reasonable certainty.

However, an interesting case has just come out of an appellate court in Indiana: Washington v. State. While this case does not directly deal with the right to bear arms, it does address the scope of that right indirectly, in relation to the 4^th Amendment’s protection against unreasonable search and seizure.  The case held that simply possessing a firearm for which one has a license, without more, does not make a person “armed and dangerous,” thereby justifying a police officer in stopping the person on the street and frisking them.

Here’s a quick refresher on 4^th Amendment jurisprudence: the 4^th Amendment protects us against “unreasonable searches and seizures” and lays out the conditions under which search and arrest warrants can be issued. It does not, however, say when a warrant is required to conduct a search, or if that’s even required at all. Over the years, courts have filled in the gaps. Basically, they’ve settled on the idea that a search without a warrant is presumptively unreasonable (and therefore unconstitutional), but have articulated many exceptions. One of these exceptions was laid out in Terry v. Ohio – holding that if a person is in public, and a police officer has a reasonable suspicion that the person is armed and dangerous, the officer can stop them for a short period of time (just long enough to search their person), and frisk them. Any contraband (illegal drugs or weapons, for example) found in such a search can then serve as the justification for an arrest.

In this case, the officer stopped Mr. Washington in his car, and Washington admitted that he had a gun, and a valid permit to possess it. On that basis, the officer searched his car, found a bag of marijuana, and then arrested Washington.

The appeals court held, correctly, in my view, that based on the gun alone, the officer never should have searched the car in the first place. This makes sense. To justify such a search, the suspect must be armed AND dangerous. Simply being armed is not enough. And possessing a firearm which one has a legal right to own should not lead a police officer to the conclusion that the suspect is dangerous.

This case, along with the newfound and ill-defined constitutional right to own a gun raises some interesting questions about other gun crimes, and if they will survive. For example, in many states, crimes committed while in possession of a firearm call for enhanced punishments. It often doesn’t matter if the gun was actually used in the possession of a crime. If the gun is legal, it seems that it shouldn’t add to the defendant’s culpability.

It’s likely that we’re going to see many more cases like this in the near future, through which the exact scope of the right to bear arms will begin to take shape. Of course, nobody wants to be the subject of a test case. If you own a gun, you should be sure to follow all of the relevant federal, state, and local laws related to gun ownership, even if you view them to be unjust. You should also know that it’s very unlikely that the Supreme Court will ever find that you have a completely unfettered right to possess whatever firearms you like, so if you’re hoping that keeping a few heavy machine guns in your attic will eventually lead to a Supreme Court decision in your favor, you’re mistaken. In Heller, the court took pains to make clear that states can still place reasonable regulations on the sale, possession, and use of guns. Most people, including myself, probably see that as a fair balance for the court to strike.

However, exactly how the competing interests of the individual right to own guns, and ensuring that they are possessed and used in a safe manner will be balanced remains to be seen. Whatever happens, it’s going to be interesting.