Monthly Archives: April 2017

Chicago police officers in March. A recent Illinois court ruling has implications for the Second and Fourth amendments.

Joshua Lott/Getty Images

The American judiciary is currently engaged in a vigorous debate that can be summed up in one question: Can you diminish your Fourth Amendment rights by exercising your Second Amendment rights? The Fourth Amendment protects individuals against unreasonable searches and seizures; the Second Amendment safeguards the right to keep and bear arms. What happens, then, if police officers search or seize a person solely because he is carrying a firearm? Is that unreasonable under the Fourth Amendment and therefore illegal?

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Last week, an Illinois appeals court answered that question in the affirmative, ruling that mere possession of a handgun does not justify a search or seizure. Liberals and conservatives alike should cheer the courts decision. Empowering law enforcement to curtail the Fourth Amendment makes no one safer, even when its done in the name of controlling gun violence. And allowing officers to target gun owners without suspicion of wrongdoing puts us all at greater risk of harassment, discrimination, and brutality.

Unfortunately, not every court sees the issue that way. In January, the 4th U.S. Circuit Court of Appeals found that when officers conduct a lawful traffic stop, they may frisk the driver if they reasonably believe him to be armedregardless of whether the person may legally be entitled to carry the firearm. Even if the individual holds a concealed-carry permit, the court clarified, an officer may still search him without having any suspicion that he committed a crime. In a trenchant critique of the ruling, National Reviews David French wrote that the majority was relegating lawful gun owners to second-class-citizen status. While that might sound dramatic, Judge James Wynn admitted as much in a concurrence, declaring that gun owners forego other constitutional rights, including freedom from unannounced police intrusion and freedom of speech.

We didnt have to wait long to see what Wynns theory looks like in practice. In March, the 11th U.S. Circuit Court of Appeals, sitting en banc, refused to reconsider a decision previously issued by a panel of 11th Circuit judges. The panel had thrown out a lawsuit against a police officer who suspected, without any good reason, that a criminal might be lurking inside a particular apartment. In the dead of night, the officer banged on the apartment door. (He did identify himself as law enforcement.) The startled resident retrieved the firearm that he lawfully owned and slowly opened the front door. When he saw a shadowy figure holding a gun, he retreated inside. The officer shot him dead as he was attempting to close the door.

Endorsing the 11th Circuits decision not to re-evaluate the case, Judge Frank M. Hull likened the officers behavior to the knock and talk rule. This rule permits officers to knock on an individuals door for legitimate police purposes. Hull explained that here, the officer had simply engaged in a variation on a knock and talk. When he saw a firearm, he perceived a threat and opened fire. This shooting of an armed individual in his own home, Hull insisted, did not violate any clearly established constitutional rights.

But as Judge Beverly Martin pointed out in dissent, the officer violated at least two constitutional rights. First, he used objectively unreasonable excessive force in violation of the Fourth Amendment. Second, this force plainly infringes on the Second Amendment right to keep and bear arms as established by the Supreme Court in 2008s District of Columbia v. Heller. Martin wrote:

The Second and Fourth Amendments, Martin concluded, are having a very bad day in this Circuit.

Martin should be pleased to learn that both amendments are faring much better in the Illinois First District Appellate Court. A panel of judges for the First District was confronted with what is, by now, a familiar fact pattern. Markell Horton, a black man, was standing on a porch when two police officers drove by. The officers saw a metallic object in his waistband that they believed to be a weapon. They stopped the car and got out, at which point Horton went inside the house. The officers walked up to the porch and, they claim, found a set of keys on the ground. They unlocked the front door and entered the house, finding Horton in a bedroom, crouching next to a bed. One officer, Roderick Hummons, detained Horton and searched the room, discovering a gun underneath the mattress. The state charged and convicted Horton, who had a criminal record, of knowingly possessing a firearm after being convicted of two qualifying felonies.

It might be tempting for liberals to view these cases through the lens of gun control. They should resist the temptation.

To summarize: Two officers stopped in front of a house, at which point its apparent residents went inside. Because one resident might have been armed, the officers barged into the house and detained its occupant while searching for the weapon. Yes, it turned out to be possessed unlawfully. But what if Horton had a concealed-carry permit? At the time of the search, the officers only knew that a man with a gun was inside of a house. Did that give them reasonable suspicion to enter the house and search it?

By a 21 vote, the court said no. Possession of a gun, the majority wrote, does not, on its own, give officers reasonable suspicion or probable cause to conduct a search or seizure. The dissent argued otherwise, noting that although a gun owner could have a permitcalled a Firearm Owners Identification, or FOID, card in Illinoishe might also possess his firearm illegally. This rationale, the majority responded, leads down a dangerous path:

The majority also noted that, given Chicagos ongoing history of police misconduct, Horton did not create reasonable suspicion by quickly entering the house upon sight of the police. In an environment where minorities have legitimate suspicion of how they might be treated by police, the court explained, they will be more likely to try to avoid police contacteven though doing so makes them appear culpable of something. Without reasonable suspicion, Hummons search and seizure was unlawful. Under the exclusionary rule, illegally obtained evidence cannot be used at trial. Thus, the court ordered the evidence against Horton should be suppressed.

It might be tempting for liberals to view these cases through the lens of gun control and favor the state or for conservatives to see them as a question of law and order and support the officers. Both sides should resist the temptation. A rule that allows cops to search or seize individuals for carrying a gun can only lead to more brutality against young black men like Philando Castile. It also permits officers to trample upon our rights to property and self-defense. These are constitutional values, not partisan ones. And advocates across the ideological spectrum should urge the courts to follow the First Districts lead and reject the disastrous illogic now developing in the federal circuits.

Read the rest here:
Why Liberals Should Be Alarmed That Courts Are Eroding the Second Amendment - Slate Magazine

Fairfax, Va. Iowa is the latest state to pass significant legislation in recent months restoring Second Amendment freedoms. This week Iowa lawmakers sent House File 517, an omnibus bill containing many pro-gun reforms, to Governor Terry Branstad. HF 517 would restore the right of law-abiding gun owners to carry in the capitol and would restore the rights of parents to make decisions about their youth and handguns. The bill also strengthens self-defense rights for law-abiding Iowans.

In state legislatures across America, lawmakers are expanding law-abiding citizens constitutional right to self-protection, said Chris W. Cox, executive director of the National Rifle Association Institute for Legislative Action. The NRA and our five million members thank the Iowa legislature and Governor Branstad for working to strengthen Iowans Second Amendment rights so they have the freedom to protect themselves and their families.

Included in HF 517:

Second Amendment rights bills in the states this year:

Gun Control bills in the states this year:

State laws restoring/protecting Second Amendment rights in recent months:

Twelve states now have Constitutional Carry Laws: Vermont, Alaska, Arizona, Wyoming, Kansas, Maine, Idaho, West Virginia, Mississippi, Missouri, New Hampshire, North Dakota

States rejecting gun control schemes in recent months:

Federal legislation protecting Second Amendment rights in recent months:

Established in 1871, the National Rifle Association is America's oldest civil rights and sportsmen's group. More than five million members strong, NRA continues to uphold the Second Amendment and advocates enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation's leader in firearm education and training for law-abiding gun owners, law enforcement and the armed services. Be sure to follow the NRA on Facebook at NRA on Facebook and Twitter @NRA.

Link:
Iowa Poised to Restore Second Amendment Freedoms - NRA ILA

COLUMBIA AVirginia militiaman with a long gun. A 21st century white couple carrying assault weapons in a Starbucks. A black man opencarrying arifle in Dallas before being wrongly identified as the suspect whogunned down Dallas police officers last summer.

The images illustrate a topic Saul Cornell has dedicated his life to understanding: the legal carrying and display of guns in the U.S. under the Second Amendment.

He knows the topic is controversial.

"The interesting thing about the Second Amendment is everyones got an opinion on it," Cornell told a packed house of nearly 100 people in Mumford Hall on Wednesday. "I came to the subject of the Second Amendment not because of any great involvement with gun issues. I came to it out of my interest in the way history gets used by legal scholars and courts."

"Theres a complicated history and a very complicated contemporary reality between firearms and issues of race in America," Cornell said.

He explained how black Americans are disproportionately affected by gun violence, saying that African American men are less likely to be shot if they joined the military rather than remaining civilians.

Many of our gun laws, Cornell said, originated in the Antebellum South, which permitted open carrying of guns in public.

Cornell spoke at the last spring public lecture sponsored by the Kinder Institute on Constitutional Democracy, an academic center at MU that emphasizes U.S. Constitutional study, early American history and its relevance today.

He said guns have evolved since adopting the Second Amendment, which means Americans need evolved gun laws.

A Virginia militiaman carrying a long gun couldn't kill as many people as the white couple with assault weapons. Why, then, don't lawmakers enact more regulatory gun legislation parallel to new technology, Cornell asked.

He discussed the differences between the way Americans perceive a white couple and a black man open carrying: the couple celebrated exercising their rights, while police wrongly identified the black man in Dallas as a shooting suspect.

Cornell ended Wednesdays talk by comparing the number of gun-related deaths to car accident deaths in the U.S. He said gun deaths are rising, and the numbers are nearly equal.

"There are more gun stores out there than supermarkets," he said. "That's pretty ridiculous to me."

Traci Wilson-Kleekamp, the president of local activism group Race Matters, Friends, attended the lecture.

"It sounds like you're sort of tip-toeing around this thing on race," Wilson-Kleekamp said. "If you can, be explicit about this connection between slavery and today and our issues with guns."

Cornell said that the South is historically a more violent region, and expressly racial laws originated there.

"People are not aware of how these deep-seeded cultural forms influence their behavior," he said.

He cited a study in which white people often falsely identified guns in pictures with black faces, and simply saw other objects in pictures with white faces.

"It's a deeply, culturally-embedded kind of suspicion, and that makes it harder to extirpate," Cornell said. "Until we recognize it, we can't really move forward."

Read the original here:
Second Amendment historian connects race and gun rights - Columbia Missourian

On Friday, the U.S. Senate voted to confirm Neil M. Gorsuch to the U.S. Supreme Court. Judge Gorsuchs nomination was heavily backed by the NRA, both because of the pro-Second Amendment views expressed in his judicial writings and his originalist approach to jurisprudence. Justice Antonin Scalia exemplified originalism in his landmark Heller opinion in 2008 that recognized the Second Amendment protects an individual right grounded in the principle of self-defense.

Judge Gorsuchs confirmation capped a dramatic series of events that began with Scalias sudden, unexpected death on Feb. 13, 2016. Not only was Scalia the Supreme Courts leading Second Amendment champion, his was one of only five votes cast in the five- to-four Heller decision, and its five-to-four follow-up, McDonald v. Chicago. Although two justices voting against the Second Amendment in Heller had since left the court, they were replaced in the interim by two equally anti-gun Obama picks, Sonia Sotomayor and Elena Kagan. Thus, with Scalias untimely passing, the court was at best split four to four on its continued support for the Second Amendments individual right.

History will record that the balance of power on the Supreme Court was in fact a key issue in the 2016 presidential election and that Obamas hand-picked successor, Hillary Clinton, suffered a crushing defeat after emphasizing her own view that the Heller Court had been wrong on the Second Amendment.

Candidate Donald Trump, meanwhile, made no secret of his determination to nominate a pro-Second Amendment judge to the fill Scalias vacant seat. After his victory in November, President Trump kept his promise by nominating Judge Gorsuch.

In the intense media and political scrutiny that followed Trumps selection, there was never any serious argument against Judge Gorsuchs credentials, integrity, impartiality, and ability. He has been praised by legal professionals across the political spectrum.

Yet anti-gun loyalists in the Democratic Party, blinded by ideology and unable to recover from their stinging rebuke in the election, launched the first partisan filibuster in U.S. history to block Neil Gorsuchs nomination.

In practical terms, their strategy gained them nothing.

Senate Republicans on Thursday responded by applying the Senate rules instituted by Harry Reid (NV-D) in 2013. At that time, Reid pushed through the elimination of the Senate filibuster on executive appointments and lower-court nominees. The Reid Rule now applies to Supreme Court nominations as well.

Judge Gorsuch was then confirmed on Friday by a bipartisan 54-45 vote.

While there may be no end to the hypocrisy, rancor, and obstruction that liberal loyalists are willing to inflict on the American political process, all citizens of goodwill can rest assured that in Judge Gorsuch, they have a decent, unbiased, and highly-qualified Supreme Court justice who will uphold the law.

And Second Amendment advocates in particular should sleep more soundly knowing that when the Supreme Court again hears a case on the right to keep and bear arms, Justice Scalias seat will be occupied by a man dedicated to ensuring that the Framers vision of constitutional freedom is upheld.

Read more:
Freedom Wins! Pro-Second Amendment Judge Will Join U.S. Supreme Court - NRA ILA