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Guns and searches

Back when the Supreme Court's decision in District of Columbia v. Heller came down and declared that individual ownership of a gun was a fundamental constitutional right, I predicted that courts would have to take a second look at the validity of weapons disability and perhaps even firearms specifications statutes.  So far, that's not happening; Eugene Volokh over at the Volokh Conspiracy points us to the latest case, a decision out of the US District court in Alabama upholding a conviction of possessing a firearm after having been convicted of misdemeanor domestic violence.

As Volokh notes, the decision doesn't go beyond "Heller says that banning felons from owning guns is still okay," without engaging in an analysis of why that would apply to a misdemeanor conviction, even for a crime of violence.  This shouldn't be too surprising.  As I'd commented back in January, the notion that the 2nd Amendment protects an individual, rather than collective, right to bear arms is a truly revolutionary development in constitutional law.  Courts have reflexively been upholding gun laws for well over a century, so it's not surprising that there's going to be some powerful resistance to the idea that some of those regulations might be unconstitutional.  Sooner or later, though, some court's going to question why someone who's been convicted of, say, insider trading (or a 15-year-old misdemeanor drug offense) should be barred from owning a weapon.  Doesn't Martha Stewart have a right of self-defense?

On another subject, I came across an interesting case while doing the Update for last week:  State v. Topps, out of the 2nd District.  The facts were a little funky:  the police had been called to a bar by complaints that a white man in the parking lot was screaming for help.  The cops got there, and sure enough, there were two guys, one white and one black standing at a pay phone, and the white guy was "screaming like there was something very very wrong going on."  As the police approached, the black man, who shortly thereafter became the defendant, started walking away.  The officers told him to stop, but he didn't, and you pretty much know how this story ends:  they grabbed him, dragged him back to the patrol car, and patted him down, finding drugs. 

The cops had no reasonable suspicion that Topps was engaged in criminal activity, but the court noted that there are a number of decisions holding that police have the power to detain potential witnesses, too.  The court relied on the balancing test laid out in the US Supreme Court's 1979 decision in Brown v. Texas

Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

The court actually does a good job analyzing the various factors, and concludes that the police were within their rights to stop Topps.

But here's the kicker.  The defendant had assigned a single error, that he had been unlawfully detained.  As the court noted, "[defendant] makes no independent argument that there was no basis for a weapons pat-down, for officer safety, once he had been stopped."  As I've harped on before, despite the widely-prevalent belief that if the police have a reasonable basis for a stop, they've got a reasonable basis for a frisk for weapons, that just ain't so.

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