Main Content

Vol 43. No. 1 Fall 2018

ARTICLES

Automatic Authorization of Frisks in Terry Stops for Suspicion of Firearms Possession

Royce de R. Barondes.................................................................................................. 1

Heller has required courts to grapple with the interaction between Terry stops and the right to bear arms in public. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii) if so, whether such a stop inherently authorizes an accompanying frisk. This Article focuses on the second issue; Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54 Idaho L. Rev. 297 (2018), examines the former. If the stop is justified as a mere inconvenience, it is inconsistent to conclude the stop inherently authorizes pointing a firearm at the subject. And if a subject is treated as armed and dangerous—the criterion for authorizing the frisk—courts typically hold the subject can be frisked with weapons drawn.

Additionally, sketching the number of Terry stops that would be added by stops of persons, not police officers, who carry firearms daily suggests there would be a substantial increase in the most hazardous Terry stops. The controversy generated by the recent level of Terry stops suggests a substantial benefit would be required in any balancing finding reasonable an increase in the stops. Yet prior Supreme Court authority indicates the benefits of which a court may take cognizance are limited to the possession and transport itself, and exclude remote consequences prevented by the stops.

 

Mass Murder: American Unexceptionalism, D.C. V. Heller, and "Reasonableness"

Clayton E. Cramer............................................................................................ 43

Lower courts have used a variety of techniques to largely ignore District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), primarily by defining various categories of gun ownership outside a narrow definition of the “core” of the right protected by the Second Amendment. Will this same approach be used by a future Supreme Court to effectively reverse Heller by declaring some weapons too effective for mass murder to be protected? Is mass murder exceptionally American? If so, can America’s relatively laissez-faire gun control laws be the cause? Could a narrow reading of the Second Amendment, post-District of Columbia v. Heller, qualify as “reasonable” or “rational” because of the social costs of this supposed American exceptionalism?

 

To the Terror of the People: Public Disorder Crimes and the Original Understanding of the Second Amendment 

Mark Anthony Frassetto......................................................................................... 61

In the aftermath of the Supreme Court’s 2008 decision in District of Columbia v. Heller, perhaps the most controversial and hotly contested undecided issue in Second Amendment law is to what extent the right to bear arms applies outside of the home. As in Heller, where the Supreme Court relied in large part on the historical record to come to its decision, history has played a critical role in cases addressing the carrying of firearms in public. Advocates’ arguments in these cases center, in part, on whether English and founding-era American laws regulating the carrying of firearms required an intent to terrorize. This debate stems from mentions of ‘public terror’ in several historical treatises, cases, and statutes. Advocates of a broad right to carry in public claim these sources support their theory that historical laws prohibited public carry only when it was intended to terrorize the public. In contrast, those supporting a more limited right to carry argue these sources support their theory that historical laws prohibited public carry because such conduct was inherently an act of public terror.

This article brings new sources to bear on the debate, specifically, cases and treatises addressing the common-law public disorder crimes of riot, rout, unlawful assembly, and affray from the late sixteenth century to the late nineteenth century. Because these crimes, like publicly carrying weapons, are rooted in concerns about public terror, they serve as analogous sources to use in determining what the terror language in historical legal discussions of public carry really means. The public disorder cases and treatises discussed in this article show that these crimes sometimes involved the carrying of weapons, and when they did, they were deemed to automatically incite public terror without any necessity for intent.

 

Standards of Review, The Second Amendment, and Doctrinal Chaos 

David T. Hardy................................................................................................ 91

In 2008, the Supreme Court recognized that the Second Amendment guaranteed an individual right to arms: in 2010, it classed that right as fundamental, for Fourteenth Amendment purposes. In the period since, the Court has (with one minor exception) rejected all petitions for certiorari. The result has been widespread and serious divisions among the lower courts. Where a plaintiff brings his or her action will determine whether one, two, or no standards of review apply. Within the Circuits that apply two standards, the choice of forum will determine where to draw the line between the stricter and less strict standard, as well as whether the two standards are strict scrutiny/intermediate review or intermediate review/rational basis. Where intermediate review is applicable, the suit’s location will determine whether in practice that means almost strict scrutiny, or barely-disguised rational basis. Choice of forum will likewise dictate whether Second Amendment as-applied challenges are permitted or forbidden.

This article serves to highlight the near-chaos that has fallen upon the Circuits as they attempt to interpret the Court’s teachings absent the Court’s guidance. It will examine and critique the divisions (and divisions within the divisions) that have developed. It will then suggest what the courts can do to establish a uniform and practicable standard of review.

 

The Interpretation of the Second Amendment as a Collective Right Leads to a Federalism Issue

Tim Kalinowski................................................................................................ 107

Justice Stevens' dissent in District of Columbia v. Heller asserted that the Second Amendment protects a collective right pertaining to the proper allocation of military power. Several state and local governments passed "sanctuary" laws resisting various national impositions and restrictions pertaining to the manufacturing and possession of firearms. This article explores how interpreting the Second Amendment as a collective right creates a federalism issue that supports a state's attempt to be a "sanctuary" from national gun laws.

 

History and Tradition in Modern Circuit Cases on the Second Amendment Rights of Young People

David B. Kopel & Joseph G.S. Greenlee.............................................................. 119

This Article surveys nineteenth century laws and cases that restricted arms ownership based on age. We analyze the nineteenth century statutes and cases through the lens of five federal Circuit Court of Appeals cases involving restrictions on the Second Amendment rights of young people.

Part II examines Rene E., a First Circuit case. Because Rene E. relied on nineteenth century cases, Part II analyzes those cases.

Part III is the Fifth Circuit’s NRA v. BATF, which cited nineteenth century statutes, some of which had led to the cases that Rene E. cited. So, Part III reviews the statutes.

Parts IV, V, and VI each have shorter discussions of the other leading Circuit cases: NRA v. McCraw (5th Cir.) (carry permits); Horsely v. Trame (7th Cir.) (parental permission for gun license), and Ezell v. Chicago (7th Cir., “Ezell II”) (ban on persons under 18 using firing ranges).

Because this Article focuses on post-Heller circuit court cases and their use of history, there are certain topics that we do not address. First, we discuss the Supreme Court’s Second Amendment decisions only to the extent that they are discussed by the circuit opinions. Second, we do not discuss the history of colonial and Early Republic militia statutes. Those statutes typically set the minimum age for militia service at sixteen, although by the end of the eighteenth century the minimum age federally and in most states had been raised to eighteen. Third, we do not discuss contemporary gun control laws, except to the extent that particular laws are at issue in the circuit cases we analyze. All of the topics that we do not examine in this Article will be reviewed in depth in an Article in the next issue of this Journal.

 

Gun-Violence-Prevention Taxes Under Emerging Firearm Fee Jurisprudence

Hannah E. Shearer & Allison S. Anderman.................................................................. 157

Gun and ammunition taxes and fees have long been used to fund wildlife conservation programs and regulatory schemes that ensure guns are being purchased and possessed lawfully. In recent years, taxes have been proposed as a policy tool to help mitigate the staggering social and economic costs of gun violence by providing a reliable source of funding for gun safety and violence prevention programs. These proposed “gun-violence-prevention taxes” have been met with opposition, including from Second Amendment litigants who argue that courts should strike down gun and ammunition taxes under the Supreme Court’s First Amendment fee jurisprudence—a body of cases examining taxes on protected expressive or religious activity. This Article aims to evaluate that argument under accepted principles of both First and Second Amendment law. Although just ten years have passed since Heller recognized an individual right to possess handguns in the home for self-defense, this Article argues that enough is known about the history of gun and ammunition taxes, the differences between the First and Second Amendments, and the decade of post-Heller lower-court jurisprudence to conclude that most proposed gun-violence-prevention taxes are constitutional.

 

"Assault Weapon" Myths

E. Gregory Wallace................................................................................................ 193

Four federal circuit courts have rejected Second Amendment challenges to “assault weapon” bans. The main target of these bans is the civilian AR-15, the most popular rifle in America. Most recently, the en banc Fourth Circuit in Kolbe v. Hogan took the unprecedented step of declaring that the AR-15 is not a protected firearm under the Second Amendment because it is functionally equivalent to the military M16. These courts have based their decisions upholding bans on the AR-15 and other “assault weapons” on certain factual claims about how these firearms operate.

This Article critically examines these factual claims. It identifies three common myths—the weapon of war myth, the rate of fire myth, and the combat features myth—that repeatedly appear in the four decisions and drive their outcomes. It shows how these myths are perpetuated by the judges’ refusal to take seriously readily-available evidence about the operation and use of these weapons, with a special focus on Kolbe’s attempt to depict the AR-15 as nearly identical to the M16.