Texas recently became the latest state to legalize open carry of handguns. The Houston Chronicle has this informative piece. Almost every other state in the country allows some form of open carry, some with a license/permit, some (like Michigan) without. I think this is further evidence that the sky did not fall on gun rights after Barack Obama took office, or after he took executive action on guns in 2013.
A question I often get from my Criminal Procedure students is when and under what circumstances, in a state with relatively liberal gun laws, the police can conduct an investigative stop of someone who is carrying a gun in public. As a Fourth Amendment matter, we call these Terry stops: brief, investigative detentions based on reasonable suspicion that a crime has been committed or that criminal activity is afoot. The stop may be accompanied by a frisk of the person, if the police have additional reasonable suspicion that the suspect is armed and dangerous. These are unquestionably seizures of the person, and therefore implicate Fourth Amendment interests. In a place where public carrying of firearms is unlawful, that fact alone would justify a stop. But in the vast majority of states, that is not the law. So, for example, can the police conduct a Terry stop of a person who is known to be carrying a gun – either because the officers themselves observe the gun, or, more likely, because it is reported to them?
These situations can be legally tricky, but I do not think the analysis changes much just because gun possession is more liberally permitted. In every case, the question is not whether the gun possession is lawful; it is whether the officer has reasonable suspicion (based on specific, articulable facts; not a mere hunch) that the person is engaged in criminal activity. It is generally lawful, for example, to carry a baseball bat. The police could not conduct a Terry stop merely on the basis that X is carrying a bat. If, however, the police have reasonable suspicion that X has used the bat to assault someone, or that X is planning to use the bat to break the window of a neighbor’s house, then the legality of carrying a baseball bat does not affect the ability of the police to stop X and investigate. One can extend this same hypothetical to include carrying of other lawful items, even though they may not have the same legal status as a firearm (which, within limits, is constitutionally protected). Liberal gun laws, then, may protect a suspect from being investigated merely because of his or her possession, but those laws do not provide blanket immunity from being investigated.
Remember also that even in states with liberal gun laws, not all gun possession is lawful. For example, even in liberal gun law states, like Michigan and Texas, carrying is still unlawful in certain designated places. For another example, the possessor may be a convicted felon or fall into some other category of prohibited possession, under either state or federal criminal law. The police, though, will not necessarily know this ahead of time, unless, of course, they ask and obtain an admission from the suspect that he or she is a prohibited possessor or have other information that confirms this (this would then give them not just reasonable suspicion for a stop, but probable cause for an arrest). Again, if the police have reasonable suspicion that the person is a prohibited possessor, then the generally permissive nature of the state’s gun possession laws is irrelevant. But if public carrying is lawful in the particular place, then the police will not have reasonable suspicion merely because the person is carrying, even if it turns out that the person is a prohibited possessor. These can be trickier cases, but the key is adherence to the reasonable suspicion standard.
Also tricky is the frisk – normally, reasonable suspicion that a suspect is armed would probably allow for the frisk, but does that calculation change once the people of the jurisdiction have permitted carrying of a firearm outside of the home? In other words, although one might be able to argue that any person armed with a firearm is also dangerous, could one also argue that the people of that jurisdiction have made a legal determination – by approving carrying in public – that merely being armed is not, by itself, enough to make one dangerous? Again, I think this is where a case-by-case determination of reasonable suspicion becomes important, though different courts may see that problem differently. It is also notable that the Supreme Court has rejected, unanimously, the argument that any anonymous tip about gun possession should automatically provide reasonable suspicion. See Florida v. J.L.
So the issue is not whether guns are more liberally regulated in the jurisdiction, although that could influence what law enforcement may do at inception. To the extent that carrying in public is lawful, it stands to reason that the police would not be able to stop and frisk a person merely because the person is carrying. But so long as the police have reasonable suspicion of criminal activity, neither the liberal nature of the state’s gun laws, nor a liberal interpretation of the Second Amendment, would necessarily immunize someone from a Terry stop under the Fourth Amendment. Of course, state search and seizure law – as opposed to federal constitutional law – could always liberalize the protections from an investigative stop, as well.