NRA: Federal Appeals Court’s Shocking Pronouncement on Your Rights

By Dave Dolbee published on in News

Lawful Gun Carriers Must Forfeit Other Rights

If you thought your Second Amendment rights were safe with the election of a new President, you may have to rethink your position. Rulings such as this, especially given the first decision and the Justice Department’s sending the case back to be reconsidered which resulted in the weapon being blamed in the second decision… should give each of us pause to ask ourselves, “How safe is the Second Amendment in the eyes of the courts and how important will the fight be for the next Supreme Court Justice?

The election of Donald J. Trump to the presidency has many gun owners feeling more secure about their Second Amendment rights than they have in nearly a decade.

Gavel in front of a blurred out American flag

But a decision this week by the full U.S. Court of Appeals for the Fourth Circuit is a stark and sobering reminder of the utter disdain and denial with which many judges continue to treat the right to keep and bear arms. Taken to its logical extreme, the opinion declares open season on law-abiding Americans who choose to carry firearms for self-defense. It may well be the most anti-gun ruling from any court of the modern era.

The case, United States v. Robinson, has been a roller coaster of conflicting opinions ever since Mr. Robinson first moved to have the evidence in the case against him suppressed for violation of his Fourth Amendment right against unreasonable search and seizure. The issue presented by the case is whether police officers, having reason to believe a person is in possession of a firearm, can legally treat the individual as dangerous, even if they have no reason to believe the possession is illegal and even if the person’s behavior is not overtly threatening.

On March 24, 2014, an anonymous tipster called the Ranson, W. Va. police department claiming to have seen an African-American male in the parking lot of a 7-Eleven load a handgun, conceal it in his pocket, and leave the lot as a passenger in bluish-green Toyota Camry driven by a white female.

Within minutes, a police officer responded to the location and observed a vehicle less than a mile away from the 7-Eleven matching the description provided by the caller. The officer observed that the occupants of the car were not wearing seatbelts, which allowed him to execute a lawful traffic stop under West Virginia law. Mindful of the anonymous tip, the officer ordered Robinson, who was in the passenger seat, out of the car.

Meanwhile, back-up had arrived. The second officer approached the car, opened the passenger side door, and asked Robinson if he had any weapons. He would later testify that Robinson’s only reply was to give him a “weird look.” The officers then had Robinson place his hands on top of the car and frisked him for weapons, finding a firearm in his pants pocket.

Both officers testified that Robinson was cooperative throughout the encounter and that they never observed any gestures indicating he intended to use any weapons against them.

After the frisk, one of the officers realized that he recognized Robinson from prior criminal proceedings. Confirming that Robinson had a felony record, the officer arrested him for felon in possession of a firearm. The case was then tried in federal court.

Under Supreme Court precedent from 1968 (Terry v. Ohio), police officers who believe a suspect they have detained for investigation but have not arrested can conduct a limited “pat down” of the suspect’s outer clothing when they have reasonable suspicion that the suspect is “armed and dangerous.” This was the basis for the search the officers used to find the incriminating firearm in Robinson’s pocket.

But Robinson claimed that the officers had no reason to believe that he posed any danger to them and therefore that they had no legal authority to frisk him. He noted that people may lawfully carry firearms in West Virginia, that the police had no information at the time of the frisk that his carrying was unlawful, and that he did not act aggressively or uncooperatively toward the officers.

A magistrate judge agreed with Robinson and recommended that the evidence of the firearm be disallowed. The district court judge presiding over the case rejected the recommendation, ruling the high crime area in which the contact occurred, the information the officers had that Robinson was armed, and Robinson’s failure to answer when asked about weapons created a reasonable suspicion that he was armed and dangerous.

Robinson then appealed the district court’s decision to the U.S. Court of Appeals for the Fourth Circuit. The case was heard by a three-judge panel, and two of the three judges agreed with Robinson.

Judge Pamela Harris’s majority opinion stated:

[I]n states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous for Terry purposes. Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent. … Nor will we adopt a rule that would effectively eliminate Fourth Amendment protections for lawfully armed persons … authorizing a personally intrusive frisk whenever a citizen stopped by the police is exercising the constitutional right to bear arms. [Quotation marks and citations omitted].

Barack Obama’s Justice Department then asked the entire Fourth Circuit Court of Appeals to rehear the panel decision.

That rehearing, unfortunately, led to a reversal of the earlier panel decision. The majority opinion, released on Monday, cast the issue in the case as, “whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believes to be armed, regardless of whether the person may legally be entitled to carry the firearm.”

The majority insisted that the “armed and dangerous” language in Terry really meant “armed and therefore dangerous” (emphasis in original). In other words, “the risk of danger is created simply because the person, who was forcibly stopped, is armed.”

The court also asserted the same “logic” applies, even if possession of the weapon is legal. “The presumptive lawfulness of an individual’s gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown,” the majority opinion concludes.

Thus, because Robinson was lawfully stopped, and the police officers had reasonable suspicion to believe he was armed, “the officers were, as a matter of law, justified in frisking him and, in doing so, did not violate Robinson’s Fourth Amendment right.”

Incredibly, though the court resolved the case on the broadest constitutional proposition possible, the majority opinion then went on to describe all the circumstances known to the officers that would have allowed them to make an individual “dangerousness” determination under the facts of the case. Thus, the majority essentially admitted that the patently anti-gun holding of the case–that all persons armed with a gun are a per se lethal threat to police officers–wasn’t even necessary to its resolution.

If the majority opinion were not bad enough, Judge James A. Wynn wrote an incendiary concurrence berating the majority for focusing broadly on “weapons” rather than on firearms specifically. Wynn’s opinion argued that the majority’s reasoning also necessitated recognition of two other “key issues.” The first, Wynn wrote, is that “individuals who carry firearms—lawfully or unlawfully—pose a categorical risk of danger to others and police officers, in particular.” The second is that “individuals who choose to carry firearms [therefore] forego certain constitutional protections afforded to individuals who elect not to carry firearms.”

Judge Wynn went on to explain how he believes the law of the Fourth Circuit—which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia—is now that lawful gun owners are second class citizens.

“[T]he majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights,” Wynn wrote, “like the Fourth Amendment right to have law enforcement officers ‘knock-and-announce’ before forcibly entering homes.” He continued, “Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.”

Indeed, Judge Harris, whose panel opinion was overturned by the majority, recognized even darker implications of the majority opinion in a dissent joined by three other judges. “[T]oday’s decision insisting on a conclusive link between ‘armed’ and ‘dangerous’ she wrote, “undoubtedly will have implications for police use of force, as well.” In particular, “If a police officer reasonably believes that a suspect poses a ‘threat of serious physical harm,’ he may use deadly force to protect himself ….”

She went on to observe that under the majority’s reasoning, “The legal right to carry arms is perfectly self-defeating ….”

Whether Robinson will appeal the case to the U.S. Supreme Court remains to be seen.

In the meantime, the Fourth Circuit’s majority and concurring opinions epitomize the disordered thinking that leads to useless and persecutory gun control by focusing on an inanimate object, and not on human behavior, as the controlling factor of the law.

It’s difficult to ignore the timing of the opinion, coming just as Congress’ interest in national right to carry is back in the news. Whether that’s purely coincidental, we’ll leave to the reader to decide. But it’s hard to imagine how any viable right to bears arms can exist where every lawfully armed motorist who’s stopped for a minor traffic infraction can be treated by police officers as a lethal threat.

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Comments (60)

  • A Cress

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    The problem with this case is the timing of the police frisking and securing the weapon – prior to any knowledge that this guy was a felon.

    Of course, if they had that prior knowledge, it would have been obvious that they should frisk this felon for any contraband (drugs, weapons, stolen jewelry shoved in a pocket… He lost those protections against search and seizure when he became a felon, and unless those rights were returned to him, he knows the score…it is not permitted and can likely send him right back to jail/prison.

    If he had NOT been a felon, why did the police force him out and frisk him? This WOULD HAVE been a possible violation of a law-abiding citizen’s rights, but I always believe it is best to simply comply with the police officer, and then contact a lawyer as soon as possible if you believe your rights have been violated.

    Reply

  • fair

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    Not long ago, the US Supreme Court ruled that a motorist CANNOT be detained at a traffic stop in order to escalate the traffic offense into a drug search offence. That was a 4th amendment case. The case in discussion here is the same type of case. The police escalated Robinson’s traffic violation into an illegal gun search case.

    Normally I support the police, but the courts are giving them too much power over life and death. The courts are so convoluted, no one understands or can predict what they will do next. Laws mean nothing in this country. We are NOT a “nation of laws.” The “nation of laws” fiasco is a smoke screen for the government to disregard the life and safety of any person found within the government’s power. The most dangerous life threatening encounter anyone can have, is when you are stopped by a policeman. Your life is in danger – count on it.

    Reply

    • Jack

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      To fair— I wish everyone was as smart as you. You are a person of great wisdom.

      Reply

  • JPrize

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    It seems to me this entire trial comes down to deciding whether an armed individual is inherently a “danger” (and thus subject to other legal decisions — like the referenced Terry vs Ohio).

    Personally I’d say that’s not the case for a few reasons:
    1) It makes the assumption that individual bearing arms is bearing them with the intention of using said arms
    2) It assumes that the bearer of said arms is inherently hostile (to some degree)

    If those two assumptions had any basis in reality what-so-ever, then everyone should be absolutely terrified of cops, soldiers and fellow law-abiding citizens.

    So while this instance involves a felon that (likely) should not have possessed a firearm in the first place, the officers may not have grounds for conducting the pat down (at least under the under the basis of the Terry v Ohio decision as that appears to requires the conditions of armed AND dangerous to be present together).

    While I’m just an engineer, this really does seem to logically boil down to the question: Does being “armed” ALWAYS equate to being “dangerous”?

    Unless the officers knew: that he was felon (which they did), that he was carrying a firearm (which they suspected based on the tip), and that his legal rights had not been fully restored (which is something that can be done) I think Robinson may actually have a valid case. …but again I’m just an engineer thinking through this logically and I may very well not know all the pertinent laws, and precedents that may apply.

    Reply

  • Ol' White Joe

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    I thought in too many parts of the country, every single motorist who’s stopped for a minor traffic infraction can already be treated by police officers as a lethal threat, at least if Driving While Black.

    petedub keeps making very logical clear points, while gman seems to be screaming at windmills. Lawyer or not.

    Guns Rights extremists don’t realize how they’re just pawns in the bigger game of building single-issue voting blocs. Rethinking your candidate yet?
    You who know no history – try California in 1967, what was then the most restrictive gun-control law in the nation, the Mulford Act, which prohibited the carrying of loaded firearms in any public place in the state, and was intended to disarm the Black Panthers at a time when the New Left was the most vocal defender of the right to bear arms and conservatives promoted gun control – signed by governor Ronald Reagan(!), who then also supported a 15-day cooling off period for the purchase of handguns, and as president signed a law banning the interstate sale of handguns.
    Read the “rest of the story” here: https://riversong.wordpress.com/the-nra-story/
    Unless you don’t believe in Freedom of Speech, or Freedom of the Press, only good old #2.

    Reply

    • G-Man

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      @ Ol’ White Joe,

      How despicably bigoted of you. The last thing this forum needs is another racist injecting their sad discriminatory slant on life into places it never belongs. Despite your disgustingly prejudicial rant, the balance of your diatribe doesn’t even fit within the context of anything we’ve discussed.

      But even if you did think you had a fluid point somewhere in there, you used a nobody’s personal blog as your reference. That entire thing was blogged by an admittedly biased liberal anti-gun peacenik. His entire entry was rife with personal opinion and inaccuracies, which explains why he didn’t bother to offer a single source to back up anything he wrote.

      Apparently it’s you that doesn’t know your history, so you have to quote another liberal that just makes it up in blogs. Like all you libs and your “fake news”, your moto will forever be, “If it’s on the Inter-webs then it must be true.” Do us all a favor buddy and go take your racist sludge somewhere else.

      Reply

  • Kevin

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    Could have stopped this article at black and armed. The 2nd and 4th amendments are white only.

    Reply

  • petedub

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    G-Man,

    The RULING is the result of the case — conviction upheld, because the evidence (a firearm in illegal possession by a FELON) was lawfully seized pursuant to a lawful Terry stop.

    That RULING does not reference the 2nd Amendment. It is a 4th Amendment case, not a 2nd Amendment case — precisely because a FELON has no 2nd Amendment rights.

    The mentions of 2nd Amendment you reference come from the opposing opinions of judges who LOST the argument because they had erroneously bought into a criminal defense lawyer’s dubious efforts to use otherwise-valid gun-rights arguments to overturn a conviction of his FELON client.

    Given that this distinction between the majority’s RULING and minority opinion is not immediately obvious to you, you clearly are not competent to read a judicial opinion.

    I am quite comfortable with my bona fides as an American, as a former active-duty combat officer who actually understands and cares about our Constitution.to fight for the Constitution on a daily basis for my entire adult life.

    If you think being “American” means swallowing scare tactics hook, line and sinker as you did, you are a very sorry EXCUSE for an American. I do not care whether it is the DNC, Brady Campaign or NRA/ILA (and they are all guilty of this wrong), when an organization uses scare tactics for fundraising purposes, that fundraising effort is not credible. Any freedom-loving American would understand that.

    I am certain that no competent attorney would agree that “this will easily be overturned in the Supreme Court.” To overturn the conviction, the Court would have to overturn Terry — which ain’t happening.

    I dare you to have one of your supposed prosecutor buddies post to explain how the Supremes are going to overturn Terry — and how any alleged prosecutor or self-proclaimed “G-Man” could possibly support such an outright attack on the lives of police officers.

    You still cannot tell me — and neither can anyone else — why the law should force every cop to just ASSUME that EVERY armed person is a “law-abiding citizen” without conducting a Terry stop, as the law presently allows, to answer that specific question.

    The only way your stupid argument survives is by the United States Supreme Court deciding that hurt feelings are a good enough reason to begin sentencing cops to death by overturning Terry and forcing cops to ASSUME that all armed persons are “law-abiding citizens” until the bullets start flying.

    To put this into a combat / rules of engagement scenario, you are expecting cops not to engage peacefully and safely so as to prevent hostility (Terry stop), but instead only to engage after hostility is commenced. Under your argument, cops only get to figure out who the law-abiding citizens are because they are the ones who don’t shoot, and the criminals are the ones who do shoot.

    And the only reason you are putting that tremendous burden on cops, and letting the bullets fly, is to assuage the hurt feelings of un-American weaklings who are unwilling to do their part to fight crime by accepting the TINY risk (which has already been ruled to be constitutionally permissible under Terry) of being inaccurately “suspected” and questioned.

    You un-American cop haters are WRONG as a legal, political and moral matter.

    Reply

    • G-Man

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      @ petedub,

      I experienced a combination of total disappointment and then amusement seeing your refusal to address any of the impassible points I’ve specifically thrown at you.

      I honestly thought you’d at least attempt a delusional stab at a defense. But then it dawned on me that while you are accustomed to getting away with spinning your warped jailhouse legalese on other forum members, you are probably at least smart enough not try that BS on someone as formidable as me.

      Thus explains why you’ve evaded addressing any of my airtight points which prove this was more than a simply Terry decision. Instead you safely elect to continually revert to the same nonsensical rhetoric that you’ve repeatedly peddled to others in all your previous posts. Seriously though, I must ask that you please get a clue and realize that I’ve obviously already read all your tiresome drivel. There really is no point in repeating it over again to me.

      The crux of the matter is that you smugly insist on playing this off to other readers as if you are some kind of subject matter expert. In so doing, you’ve tried to sell this as an open and shut “Terry case” without regard to the fact that it has actually been in appeal twice-over. There is a reason for that – and the obvious answer is that several other Judges simply don’t agree with you that it is an “open and shut Terry case”; but you ignorantly choose to ignore that fact.

      I get that your ego allows you to put on a show for the other readers which you presume are less knowledgeable of the law than you, but given you know the extent of my legal background – you should knock off your crap and have some dignity when addressing me about the law. Were you and I to meet face-to-face over this, you know darn well you’d never attempt to pull the same crap in person.

      I don’t wish to drown you in even more facts that you’ll never be able to address, but your latest comments beg for correcting. Despite the embarrassment your comments elicit, I must point out your erroneous statement that the Court somehow “upheld” this conviction.

      In actuality the Court “vacated” their own partial Circuit’s ruling. This makes for a distinct difference. Anyone that claims to know federal law should understand the essential options available to the Appellate. These are to: “Vacate”, “Reverse” or “Affirm”.

      As such, a “vacatur” has a significantly distinct definition from the others whereby all lower courts MUST deal with the new mandatory stipulations that actually changed or refined the previous law as set forth by the new “opinions” entered by the higher Court. This includes the current case itself, which requires the lower court to go back and enter a new record establishing their acceptance of the new law which was changed by the higher Court’s “opinion”.

      Simply put, a lower court may only reinstate the vacated penalty if they can show a justifiable change in the previously known law. Incidentally in this case the law was originally interpreted in such a way as to have led to a successful appeal to begin with. But of course you’ve ignored this because it doesn’t fit your BS narrative.

      Nevertheless, inarguably this requires the affected lower Court to take notice of the higher Court’s new dictum as a matter of record. Such notice of change is considered to be nothing short of new “case law”, or new “common law”, or a newly set “precedent”, and thereafter is expected to be used by all other lower courts as the new “precedent” when deciding similar future cases.

      But rather honestly conceding to such reality you instead remain so pathetically consumed by your false sense of superiority that you’ve gone so far as to issue a challenge for me to waste other colleagues’ valuable time by requesting they post here just to prove their views align with mine. And yet you do so while ignorantly disregarding the simple fact that a magistrate, as well as a Fourth Circuit panel has already issued orders and opinions which are in complete support of my position.

      So rather than bother my co-workers with your trivial challenge, I’d rather you use your brain and just accept the opinions of the higher authorities which were actually involved with the case and who subsequently concurred with me. When you have magistrates and Fourth Circuit Judges that support my position, I see no reason for you to bother the lower level federal attorneys that I like to do lunch with. So deal with that.

      In closing I have to say that of all your un-American statements thus far, the most communistically revealing is that you think no one can tell you – “why the law should force every cop to just ASSUME that EVERY armed person is a ‘law-abiding citizen’ without conducting a Terry stop”. Sadly your average middle-schooler can tell you the reason is because in American every person is presumed innocent until proven guilty.

      Oh and one last thing… it’s kind of hard to be a “cop hater” when I am a cop.

      Reply

    • pigpen51

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      Gman, I read your post to your lawyer friend with a mix of amusement and respect. I am not a lawyer and don’t pretend to have even an iota of the knowledge that a lawyer has about certain things. However, even I, a lowly retired foundry worker by trade, am able to recognize certain facts. Fact number one is that if you are not able to sway someone with truth, then if you can dazzle them with enough rhetoric, you might sway them into thinking your way. That doesn’t impress me. Number two, even though I am not a lawyer, I do have a more than cursory knowledge of our constitution, and even understand what the first ten amendments are called. Wow, aren’t I smart. To presume that because he is a lawyer that petedub somehow has more authority than the judges who debated this issue, and the men who drafted the constitution, shows how inflated of an ego your friend has. I think that it is certainly within the legal right of the officers in this case to have patted down the individual in question. That is to me a prudent thing to do, if they had knowledge of a felon in possession of a firearm, and the chance that he would perhaps try to avoid an arrest for same by violence. It is then upon the judgement of the prosecuting attorney as to whether or not the gun is something that they could use at trial, and whether to just take it, dispose of it, and release the man. Nobody is asking a police officer to risk their life when they have reason to believe that a felon in possession of a gun could try to resist by shooting them. This does not mean that the Terry case should allow the “TINY” risk of us un-American weaklings to be stopped and searched simply because we might look at the cop funny. Stop and frisk might have been a very effective law enforcement tool for NY, but remember that just because something might work, that doesn’t mean it is legal. It would stop the violence in Chicago if we sent the military in and allowed them to kill any gang member that they found, summarily without trial. But that doesn’t mean that it would be legal, or desirable. Sometimes, the balance of rights is not even a close call. It is so obvious that the only one who doesn’t see it is a lawyer or a politician. I have no doubt that petedub is a very intelligent man. That does not impress me. What impresses me more is when someone realizes that the constitution is not a limit on the rights of citizen, but a limit on the powers of government.

      Reply

    • G-Man

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      @ pigpen51,

      Thank you for taking the time to weigh in with some exceptionally valuable points.

      I particularly relate to the part in which you wrote, “It is so obvious that the only one who doesn’t see it is a lawyer or a politician.” That statement is quite profound given that we are left with no choice but to trust the “politicians” who create our laws, and “lawyers” (turned Judges) to uphold and interpret them.

      But the most resounding of your statements by far was when you essentially said that the Constitution was not written to bestow or limit the Rights of citizens, but rather its only purpose was, is, and will forever be to dictate to the government the limits of their authority and power over the People.

      Far too many citizens do not know this, and the government itself has made sure of that.

      Reply

    • Deplorable Robert

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      So true. The Liberals don’t like it when we are knowledge about our rights and that it LIMITS Governmental overreach..thanks again g_Man for all your insight and EXPLAINING of why you say what you say. Glad you’re on our side.

      Reply

    • BUURGA

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      It is the DUTY of a law enforcement officer to assume (within the legal parameters of action) that a person carrying a firearm IS doing so legally until such actions of information prove otherwise, as in any other potential legal situation. This is not to say officers should act in a foolish or naive manner. The fact that the center of attention in the article is a felon, of course renders some Second Amendment arguments void. But it does not relieve the concern that the tone of the court, and in particular one judge, is promoting. Contrary to some of the posts, the judge’s opinion DOES matter, and could and, very probably will, be used in further proceedings, whether or not it bares directly on the outcome of the case.

      Reply

  • Keith

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    Pete you are so far off base as to practically be on another planet. The facts of the case clearly show that the individual in question was a felon in possession of a firearm which by itself is a crime, regardless of whether he had committed any other offense. You miss the point by being too focused on the lawfulness/unlawfulness of the ‘Terry-stop and fail to see the reversal of the court decision as the real issue. All we really need to see is the concurring opinion by Circuit Court Judge James Wynn (as a side note: where on earth did Wynn get his law degree, from a Cracker Jacks box?) to understand that he is NO friend to the 2nd Amendment or to our other Constitutionally protected rights.
    I don’t know about you Pete, but I for one do not give up my other Constitutionally protected rights just because I happen to be lawfully carrying a concealed weapon or did you miss that part where Wynn states,… “individuals who carry firearms — lawfully or unlawfully — pose a categorical risk of danger to others and police officers, in particular.” The second is that “individuals who choose to carry firearms [therefore] forego certain constitutional protections afforded to individuals who elect not to carry firearms.” or
    “Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.” You see Pete THAT is the real issue here, so it IS about the 2nd Amendment and our rights as individuals.

    Reply

    • petedub

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      Keith,

      What Judge Wynn said has nothing to do with the decision. It is just his silly argument as to why the case should not have been decided the way it was. Everything he said is “obiter dictum” — which is a polite technical way of saying “BS” (look it up if you don’t believe me). Wynn LOST the vote on how the case was decided.

      Wynn foolishly bought into the criminal defense lawyers’ disingenuous attempt to use 2nd Amendment arguments to overturn a perfectly-valid conviction for unlawful firearm possession by a felon. Wynn was wrong to frame it as a 2nd Amendment issue, just as the criminal defense lawyers were wrong, because a FELON has NO 2nd Amendment rights.

      To make this a 2nd Amendment issue, you have to think FELONS have the same right to be armed as law-abiding citizens. That’s clearly WRONG. Neither this case, nor any other case involving a felon in possession of a firearm can EVER have anything to do with the 2nd Amendment or the basic human right of armed self-defense. It’s like arguing about whether Tom Brady is a better hockey player than Kobe Bryant.

      There is no stronger advocate than me for the basic human right of armed self-defense, and the 2nd Amendment reminding us of that basic human right (which right would exist even if the 2nd Amendment had never been written, BTW). If you think FELONS should have the same 2nd Amendment rights as law-abiding citizens, on which premise your entire argument depends, you are simply wrong.

      NOBODY gives up any constitutional rights by being subjected to a lawful Terry stop. If cops cannot stop and frisk people SUSPECTED of being involved in POSSIBLE crimes, then some cops will have to die at the hands of the violent criminals you don’t want them to be able to disarm. That is unacceptable to me, and to every other civilized person.

      That is why the LAW (Terry v. Ohio) says cops CAN disarm people they are questioning, even if it turns out (with the benefit of the 20/20 hindsight courts have but cops do not) that the suspect actually did nothing wrong. That is the right answer — and has been since the Terry case was decided when I was in high school almost 50 years ago.

      The basic human right of armed self-defense carries with it the responsibility to be a law-abiding citizen — and that includes “abiding” the LAW that says (a) cops can disarm people when they are questioning them, for the sake of safety, and (b) a cop cannot be expected to assume that any particular armed person is a law-abiding citizen without being allowed to question the armed person to find out the truth.

      In the Robinson case, for example, the cops found out that Mr. Robinson was a felon who was illegally armed. The mere fact that he was armed was an element of the crime that gave the cops the RIGHT and RESPONSIBILITY under the law to find out if he also was a felon (or otherwise lawfully prohibited from being armed). I don’t know where you think the “law-abiding citizen” uniforms will come from so cops can immediately differentiate between armed criminals and armed law-abiding citizens, but let me know when you figure it out.

      If some law-abiding citizens are such weaklings as to be unable to deal with the mere hurt feelings of being inaccurately SUSPECTED and QUESTIONED when they did nothing wrong (which the law allows) that person has no business engaging in the VERY SERIOUS business of being armed.

      Reply

  • Abelhorn

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    It is apparent reading these post that people either can not read

    or will not read the Constitution for until it is amended the

    2nd Amendment right to keep and bear Arms,

    SHALL NOT be infringed no natter who you are.

    Reply

    • Damian

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      If the suspect had a previous felony conviction he had no right to have a concealed firearm or any firearm at all and the police had probably ran his name and it came back he was a convicted felon so do not try n lump us law abiding CCW holding 100% legal choice tp arm ourselves as the law allows us too. And i willingly tell any officer that may stop me for any reason i have a valid permit and i am armed what are your commands officer? That is required by Ohio state law as well to inforn the officer or officers you are armed . He has no argument if he was an actual convicted felon and 0 rights to carry or possess in any way any firearm and he would have known that so to me this i feel in no way compares to legal law abiding gun carrying Americans in any way or form .

      Reply

    • BUURGA

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      The Constitution was never designed to have all of its rights bestowed on anyone convicted of a felony. Many rights are surrendered after a court conviction and are replaced by special rights designed for the incarcerated. The Second Amendment is vital to any American’s liberty, but it is not, and never has been, limitless.

      Reply

  • G-Man

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    Never in my lifetime did I ever imagine there could be judges appointed that are so warped as to rule that in order to exercise our Second Amendment Rights we must give up our First and Fourth Amendment Rights. This is utterly insane and we are living in a liberal nightmare.

    I read the NRA-ILA take on this ruling after they published it last week. The text is long and so I worry that many readers will not have the time to completely read through in its entirety. So for those short on time, the takeaway is that this ruling is monumentally detrimental to our livelihood and MUST be overturned in the Full Supreme Court.

    Reply

  • petedub

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    Any armed person, law-abiding or not (and a cop does NOT know that answer at the beginning of a stop) is a POTENTIAL threat to a cop doing his/her job of investigating potential crimes.
    So, it is and must be lawful for a cop to STOP and FRISK a person suspected of criminal activity — even if that suspicion turns out to be erroneous. The law allows this STOP and FRISK, solely for the purpose of securing the cop’s safety during a “Terry stop.”
    Complaining about a Terry stop makes uninformed gun-rights advocates look like felons’ best friends and cops’ worst enemies. That’s the wrong side of the argument, both as a legal matter and as a political matter.
    It is not and could never be lawful for a cop to use the fruits of a Terry stop to prosecute a law-abiding citizen for being armed. So, get your knickers out of a wad.
    If you are not willing to live with the TINY risk of being inaccurately “suspected” and thus Terry-stopped, then you literally are willing to allow crime to thrive by preventing cops from doing their jobs. As for me, I WANT cops to be able to do their jobs — so long as THEY follow the law, as the cops did in this case.
    It is and must be lawful for a cop to use the fruits of a lawful Terry stop to engage in further investigation of a suspect who ultimately is found to be illegally armed (felon, in the act of committing a REAL crime, etc.). That is what the court held, and it was the right holding — this has been the law for a long time, and only the willfully uninformed fail to understand it.
    This court’s holding has NOTHING to do with the 2nd Amendment or the basic human right of armed self-defense. A criminal-defense lawyer did his job by cleverly trying to leverage on legitimate gun-rights arguments to clear his ACTUAL criminal client of a valid illegal-possession charge. The court did its job by rejecting the dubious argument.
    Judge Harris is wrong to try to make this a 2nd Amendment issue, in the identical way Chief Judge Posner has been wrong in the past. This is NOT a 2nd Amendment issue, because law-abiding citizen status (the boundary of 2nd Amendment protection) CANNOT be presumed for every armed person, without literally sentencing some cops to death-by-criminal. I don’t want cops to have to die, just to protect me from having my feelings hurt by being inaccurately “suspected” and Terry-stopped.
    It is ridiculous for law-abiding citizens to suggest that criminals are our constitutional equivalent in the context of a Terry stop. But that is EXACTLY what you all are doing by being unwilling to do your part in combating ACTUAL crime by accepting the TINY risk of having your feelings hurt by being inaccurately “suspected” and Terry-stopped.

    Reply

    • G-Man

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      @ petedub,

      Unfortunately your entire dissertation was misguidedly based on Terry v. Ohio. But this article is instead addressing United States v. Robinson; which is yet another example of a case in which judges have hijacked previously settled law in order to inject their liberal opinions to create new “common law” precedents, (I believe you and I have had this conversation before).

      Knowing reputable organizations like the NRA, Shooter’s Log and hundreds of other Gun publications find this ruling quite disconcerting, one would think you’d take pause to do a bit more research to find out why. Maybe then you would have realized the United States v. Robinson ruling does in-fact have new adverse and detrimental implications which directly affects our Second Amendment Rights.

      So actually it is you that needs to “get your knickers out of a wad” and do better research. Had you done so you’d know one of the biggest concerns is where these judges opined in this ruling that citizens wishing to exercise their Second Amendment Rights must give up protections of their First and Fourth Amendment Rights (paraphrased).

      So despite your comments to the contrary, I can’t think of a bolder statement directly making this into a Second Amendment issue.

      Reply

    • petedub

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      G-Man,

      Read the actual judicial opinion, as I have. It absolutely was a Terry stop case, and it absolutely had nothing to do with the 2nd Amendment. FELONS, like Mr. Robinson, have no 2nd Amendment rights.

      You have a dubious way of getting accurate information. The NRA/ILA is definitely not a reputable organization when it comes to accurate portrayal of judicial opinions. Their job is to raise money. That is the ONLY reason they exist — to scare people into giving money. You have been suckered. Read the actual judicial opinion, rather than swallowing scare tactics — hook, line and sinker.

      Talk to any competent lawyer who actually litigates cases — as opposed to Chris Cox who is paid handsomely to scare people into giving money — and you will understand.

      Reply

    • G-Man

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      @ petedub,

      Before I continue I simply must ask if you even like being an American? I ask this because your intense animus towards organizations such as the NRA to characterize them as “definitely not reputable” simply because “Their job is to raise money” is a serious defamation of the entire American capitalistic system.

      How do you not realize the carelessness of making such a preposterous and broad statement against literally thousands of hard working organizations? I think you should seriously reassess your existence if you feel there is no possible way these organizations can reputably raise money and still remain sincere and dedicated to their causes.

      As to the issue at hand: I am flummoxed that you read my post and yet even with my blatant recommendation in which I stated that you should have done more research, you still somehow drew the conclusion that I did no research of my own. Of course I read the full opinion, so don’t be ridiculous.

      However, I do question your claim to have read it… or at least to have comprehended what you thought you read. I say this because it would be impossible for anyone to have read this ruling properly and still say it “has NOTHING to do with the 2nd Amendment” – as you claimed in your original post. Especially given the irrefutable fact this ruling referenced the Second Amendment no less than 11 times.

      I do see in another post where you eventually realized your blunder and then attempted to explain away the inclusion of Second Amendment language as mere “obiter dictum”.

      While obiter dicta is publicly said to not influence the rationes decidendi used in final rulings, you and I both know it still offers an abundance of insight into the attitudes and thoughts of the judges deciding any final ruling.

      Since obiter dicta are made permanently available, you should also know that even years later, whether they admit it or not, judges and attorneys alike privately use it to get a feel for the intent of rulings presented and reviewed as case law in future rulings. So whether we like it or not, obiter dicta does in-fact have a profound influence on future judicial outcomes – despite your claims.

      Now on to the most important aspect of our entire exchange – which is, you screaming this is a simple affirmation of a Terry stop case, when it is not. You can ignore that reality all you want, but the rest of us know this ruling set a precedent by using new language that reaches beyond the original requirements for a Terry stop.

      That new distinction says that simply being armed automatically makes you dangerous and therefore subjects you to Terry stops, Terry frisks and whatever else rookie officers interpret it to mean as they claim to fear for their lives. Prior to this new ruling that was never an element of Terry.

      While reasonable suspicion that a crime has been committed or about to be committed is still a requirement in both rulings, under Terry an officer also had to have a reasonable and articulable suspicion that you had a weapon AND [emphasis on “and”] that you were acting dangerously. The weapon alone was not to be considered cause for an officer to deem a person dangerous if you were acting normal. In other words, you had to show reasonable signs of danger in addition to a weapon.

      However, under this new United States v. Robinson ruling, the mere presence of the weapon now allows an officer to consider you dangerous no matter how you are acting, and therefore may lead to a frisk or worse. That makes for a very distinct difference over Terry because all an officer has to do now is ask if there are any weapons in the vehicle during a basic traffic stop and every single citizen lawfully exercising their Second Amendment right will automatically now be considered dangerous.

      As for your -“Talk to any competent lawyer…” remark, I can only say you have a short memory if you’ve already forgotten what I do for a living. The three attorneys I did lunch with yesterday agree with me that this will easily be overturned in the Supreme Court.

      Reply

    • BUURGA

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      The potential is the ability to commit a criminal act. It is not the act of actually having a firearm. A person enjoys the protection of a Constitutional right until there is REASONABLE , repeat REASONABLE, concern that a threat or criminal act is at risk and could occur. The mere fact of legally ‘packing’ in no way gives law enforcement carte blanche to frisk anyone just to ease their minds after a long day in the cruiser.

      Reply

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