http://www.scotusblog.com/wp-content/uploads/2017/10/16-1532-cert-tsac-Gun-Owners.pdfARGUMENT
I. THE FOURTH CIRCUIT’S OPINION IS FRAUGHT WITH FACTUAL AND LEGAL ERRORS.
A. The Implications of the Fourth Circuit’s Opinion Are Expansive.
The court of appeals en banc decision allows the police to “frisk” anyone they stop who may be armed, based on nothing more than the possible presence of a firearm. United States v. Robinson, 846 F.3d 694, 696 (4th Cir. 2017). Although the opinion does not expressly say so, implicitly it opens the door for the police to disarm any American on whom a weapon is found, even if lawfully carried. See Robinson at 709 (Harris, J., dissenting).
Although Judge Neimeyer’s opinion failed to address the issue, forcible police disarmament of citizens in these situations is entirely predictable. It is what happened in Terry v. Ohio, 392 U.S. 1, 30 (1968), in Pennsylvania v. Mimms, 434 U.S. 106, 107 (1977) (per curiam), and is what happened here. Indeed, it would be counter intuitive to expect the police to frisk someone, find a firearm, and say “ah, I see you have a gun, please keep it while I go write you a ticket.” But, very much unlike the facts in Terry and Mimms — where the police reasonably suspected that there was actual criminal activity afoot — the only infraction that gave rise to the (pretextual) traffic stop in this case was failure to wear a seat belt. Robinson at 697. Although a police force may be committed to the enforcement of “Click it or Ticket,” there certainly was no special danger posed to the police by a citizen with an unlatched buckle. The Fourth Circuit’s ruling that the police may disarm any law-abiding gun owner with a firearm, for no reason but that he is armed, stands in stark contrast to the Second Amendment which states that the right to “bear arms shall not be infringed.”
