Conditioning Exercise of Firearms Rights on Unlimited Terry Stops

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The tenth anniversary of Heller and the fiftieth anniversary of Terry are in June 2018. On this occasion, it is timely to reflect on the interaction between these two seminal decisions. Most questions concerning the Second Amendment, including the interplay between Terry and Heller, are currently without definitive answers.

The Supreme Court has addressed the application of Heller in only two cases over the last ten years. One issue developing in the lower courts is whether merely exercising in public the civil right recognized in Heller (i.e., that alone, with nothing else) may require submission to unfettered Terry frisks not restricted to a limited set of times or locations but virtually anywhere in public. The risk of injury to the innocent in a Terry frisk is substantially heightened when the detainee is armed. It's no small matter to have a loaded firearm pointed at one for engaging in innocent, protected activity. But this can happen where mere firearms possession is a basis for initiating a Terry stop. The risk of death or serious bodily injury, coupled with perceptions that lawfully being armed results in other unwarranted law enforcement attention/ is sufficiently severe that evidently some would forego exercise of what lower courts typically reference as a protected right.

It is somewhat peculiar even to need to discuss the possibility that merely for exercising a constitutionally secured right one may be subject to having a firearm pointed at oneself. Now, the Supreme Court has not yet determined whether the rights recognized in Heller extend to firearms possession outside the home. How­ever, lower courts generally have either concluded that they do, or assumed that they do.

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