The Second Amendment and the Individual Right

The following is a college paper submitted by a law enforcement officer who gave permission a while back for Nevada Carry to post. 

The Second Amendment and the Individual Right

by A. Lindstrom

Often when one thinks of the right to keep and bear arms an individual may view this as a collective right, or a right that applies to a group of individuals, such as the National Guard or an organized militia under the control of a State or Federal Government. Citing several landmark court cases, this paper hopes to educate the reader on the true rights of the Second Amendment, the right of Open Carry, and two other Amendments in the Constitution. Additionally, this paper will discuss the questions asked in response to the open carry encounters with law enforcement and what rights the individuals have in the State of Nevada.

Open Carry And The Constitution

When it comes to the carrying of firearms, The Nevada Revised Statutes (NRS) has no law for the prevention of open carry in the state of Nevada, only the licensing requirements for a concealed carry permit that licensed through the county that particular resident lives in (NRS 202.369 2015). The only thing that is defined in this section is where a firearm may not be carried. The only requirements for licensed concealed carry are that the Chief Law Enforcement Official (CLEO) conduct a thorough background check, take a fingerprint card, and take a photo picture. The applicant must take a state approved CCW course. If there is no reason for denial, the County must issue a Concealed Firearms Permit to the applicant. This makes Nevada a "Shall Issue" state and not a "May Issue".

Since there is no law prohibiting open carry in the State of Nevada, that makes it legal. A good example of this is since there is no law that a person may not wear a red shirt on Friday, it is not illegal. The NRS does prohibit and define brandishing as " a person having, carrying or procuring from another person any dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon, who, in the presence of two or more persons, draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor" (NRS 202.320 2015). 

This is where the debate comes in. Law enforcement must utilize discretion. The key word in this statue is draw or presents in a rude manner. This is up to the interpretation of the law enforcement agent acting in the capacity of his or her duties. Most of the time the wearing of a pistol in a holster or slinging a rifle across the back would not be considered brandishing or "rudely displaying" a firearm in a public capacity. It all depends on the time, situation, and activity of the person carrying the firearm. It is not uncommon during gun shows for individuals leaving the show to carry a rifle slung across the back, including the author of this paper (1939 Round Receiver Bolt Action Mosin Nagant 7.62x54 Rifle, Five round Capacity, Cross Roads of the West Gun Show, 2013). However, discretion must be applied here.

There are many outdoor activities in Nevada, so it is also reasonable to open carry a pistol out in the desert for defense of life against hostile wildlife such as mountain lions, coyotes, and rattle snakes. Therefore it would be reasonable to open carry a rifle or pistol in case the need arose to shoot an animal. It all comes down to discretion and choosing appropriate situations to open carry.

Another case that recently surfaced in 2014 is Peruta vs. County of San Diego. An individual sued the County of San Diego for their restrictive licensing requirements of concealed carry permits in the Ninth Circuit (Peruta vs. San Diego 2014). Since the right to open carry an unloaded firearm was banned in 2012 (Sarosy 2014), the only option left for those that wanted to carry was to obtain a concealed carry permit, or as known in California, a license to carry. California is a "May Issue" state. Therefore the authority rests in the local law enforcement agency to license and set requirements to carry in the State of California. Most of the time this rests on the County Sheriff to write the policy in licensing. It is not uncommon for residents to drive up to more rural counties to get their permit where it is more lax, as more urban areas essentially only license retired law enforcement to carry, thus creating a "Jim Crow" law for non-law enforcement affiliated citizens.

After the arguments were heard on an en banc three judge panel, the District Court struck down San Diego's licensing requirements and issued a statement to the Sheriff (William Gore) that he had to have one form of Constitutional Carry, open or concealed. Therefore, the Ninth Circuit has enforced the right to carry, Nevada falls under the Ninth Circuit's jurisdiction and therefore is subject to the Peruta ruling (Peruta vs. San Diego 2014), and open carry is protected under the Second Amendment to the Constitution.

First Amendment Issues - Right to Freedom of Speech

The right to freely express oneself has long been upheld by the First Amendment in the Constitution. This was recently challenged in 2010 by a group of students who were directed by the school administration to turn their American flag t-shirts inside out on Cinco de Mayo at their high school (American Freedom Law Center 2010). The administration allowed other students to wear their Mexican flag shirts as they felt that it was "their day" to celebrate. When the students wearing the American shirts refused to remove their shirts, they were sent home. 

The families filed suit soon after saying that their First Amendment rights were violated (American Freedom Law Center 2010). The Ninth Circuit held that the school acted accordingly. The students did have the right to free speech, but the school also had to "balance" safety concerns and making sure the school maintained a safe environment for learning (American Freedom Law Center 2010). The American Freedom Law Center planned to appeal this decision as they did not agree with their ruling (American Freedom Law Center 2015).

Second Amendment Issues - Right to Keep and Bear Arms

The Second Amendment reads as follows, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (U.S. Constitution 1787). This often has been disputed as the individual right or the collective right of the National Guard to keep and bear arms in the defense of a free state, from all enemies foreign and domestic. There are fifty states and one district in the Continental United States, and there are fifty-one different sets of firearms regulations in the United States. It was not until 2008 that the Heller Decision that is often quoted in the legislature was made in the case of D.C. vs. Heller (District of Columbia vs. Heller 2008).

The background to the case was that there was mandatory handgun registration the District of Columbia. A special policeman (Heller) sought to keep a personal handgun in his residence, but was denied. It was against the law in D.C. to keep or carry an unregistered handgun at home, and those that were registered had to be completely disassembled with a trigger lock installed and secured in a locked compartment in their residence. The only way Heller could keep his handgun was to get a one-year license issued from the Chief of Police that had to be renewed annually. The plaintiff (Heller) felt that the chief of Police was enforcing this law arbitrarily and subsequently filed suit (D.C. vs. Heller 2008).

The United States Supreme Court handed down their decision which is commonly known as the Heller Decision. The Court opined that firstly, the Second Amendment is not an unlimited right and lower district courts have upheld that bans on licensing requirements on carrying firearms in public places is lawful and that the ban on prohibited persons possessing firearms such as felons or the mentally ill is constitutional. Secondly, the U.S. Supreme Court held that the ban or regulation of "dangerous and unusual" weapons were deemed constitutional (D.C. vs. Heller 2008). 

The Court overturned the District of Columbia's licensing requirement on the grounds that an entire ban on a class of weapons (handguns) that were used by law enforcement and military agencies around the country and world were deemed unconstitutional (D.C. vs. Heller 2008) as the arbitrary enforcement of the licensing requirement was a de facto ban on a class of weapons. The Court also held that requiring the disassembly of firearms and storage in locked compartments was invalid as it inhibited an individual's right to self-defense in their home. Thusly, the ban on handguns in the District of Columbia was overturned.

There are also two new cases challenging the Constitutionality of the Hughes Amendment to the 1986 Firearms Owner Protection Act (FOPA), the National Firearms Act of 1934, and provisions of the 1968 Gun Control Act (Watson vs. Holder 2015) and (Hollis vs. Holder 2015). The plaintiffs in both of these cases are being represented by the Heller Foundation and Stephen Stamboulieh in response to a recent ruling that the ATF made regarding NFA gun trusts.

The National Firearms Act put a two-hundred dollar tax on regulated items in 1934 in order to curb the amount of these "regulated" firearms that were ending up in crime. Machine guns, shotguns with barrels shorter than eighteen inches, rifles with barrels shorter than sixteen inches, and other concealable weapons (Any Other Weapon/AOW, although AOWs are only regulated with a five dollar tax instead of two hundred) were added to this list in order to stop criminals from using them. Most of these crimes had occurred during prohibition when bootlegging was a profitable criminal enterprise. 

The case of U.S. vs. Miller in 1939 enforced the belief that it is lawful and constitutional for private citizens to keep military grade weapons in their homes in the common defense of their nation. The defendant was counter-suing because he was apprehended with a sawed off double-barrel shotgun that was not registered in accordance with the NFA and argued that it was unconstitutional for his shotgun to be regulated by law. The Court found that a sawed off double-barrel was not considered part of normal military equipment and therefore it could be regulated by the National Firearms Act (U.S. vs. Miller 1939).

In 1968 after the Martin Luther King and John F. Kennedy assassinations, Congress created the Gun Control Act of 1968, which was the charter for the ATF to regulate the firearms industry. Their purpose was to collect taxes for the National Firearms Act and also federally license dealers. The act also created many bans on the importation of firearms that did not meet "modern sporting" purposes for civilian use. Many types of shotguns, rifles, and pistols were banned. For example, Glock manufactures a .380 caliber pistol (Glock 25/28) that it is not able to imported because it does not meet the criteria of modern sporting purposes. All foreign made machine guns were banned for private civilian ownership post 1968. Only military and law enforcement could own such weapons (NRA-ILA 2015).

In 1986 under President Ronald Reagan Congress was attempting to protect licensed dealers and private citizens from harassment, and over-enforcement of laws from a then young ATF branch by drafting the Firearms Owner Protection Act. A legislator from New Jersey William J. Hughes, added an amendment to the bill that banned the ownership of machine guns made after May of 1986. It was an attempt to kill the bill, and there is some ambiguity of the actual passage out of committee (NRA-ILA 2015). President Reagan signed the bill into law, and thus is the current enforcement of USC 922(o). Since the ban has taken place, the price for pre-1986 transferable machine guns can fetch prices as high as one-hundred thousand dollars. An M-16 receiver that is registered costs anywhere from twelve to twenty thousand dollars, thus pricing itself out of the hands of the common American (Gunbroker 2015). 

The reason for the lawsuit against the ATF, is that the ATF recently ruled the a NFA gun trust that owns NFA regulated items is not legally a person. Therefore, the argument is being made in court that 922 (o) does not apply to gun trusts and therefore the trust can own a post 1986 automatic. These two trusts are suing because they filed an ATF form 1 to manufacture a machine gun and pay the tax, and subsequently received their tax stamp giving them permission to do so. Now the ATF has ordered their tax stamps returned, and the issue is still on court.

Related 4th Amendment issues - Unreasonable searches and seizures

For law enforcement to search a private person's home, vehicle, or any other private place, the agency must obtain a search warrant from a judge (Judicial Learning Center 2015). This is called "probable cause" and is one of the most important aspects. Normally, evidence that is obtained illegally cannot be used in court to convict an individual, although there have been some cases where that has changed.

In the case of New Jersey vs. T.L.O. 1985, a teenage girl had her purse searched after being accused of smoking on school property. The principal demanded her purse and found rolling papers, marijuana, and a list of people in the school who owed her money. She was convicted in Juvenile court of delinquency (New Jersey vs. T.L.O. 1985). The family sued and the Supreme Court ruled that while students do have Constitutional rights at school, the school has to balance personal rights with a safe learning environment (Judicial Learning Center 2015). All the Supreme Court said was required of the school was to have "reasonable suspicion" (New Jersey vs. T.L.O. 1985) which required less burden of proof than probable cause. Therefore a school administrator could search private property without a warrant.

Center, American Freedom Law. Ninth Circuit Upholds Ban on American Flag Shirts in a California High School. n.d. Web Site. <http://www.americanfreedomlawcenter.org/press-release/ninth-circuit-upholds-ban-on-american-flag-shirts-in-a-california-high-school/>.

Center, Judicial Law. Your 4th Amendment Rights. n.d. Web Site. <http://judiciallearningcenter.org/your-4th-amendment-rights/>.

Dolan, Maura. California can't challenge ruling on concealed guns, court says. 12 November 2014. Website. <http://www.latimes.com/local/california/la-me-concealed-weapons-20141113-story.html>.

Gunbroker. Machine Guns. 2015. Website. <gunbroker.com>.

NRA-ILA. U.S. Gun Laws. 2015. Web Site. <https://www.nraila.org/gun-laws.aspx>.

Sarosy, Charlie. California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy. 2014. Online Journal.

Stamboulieh, Stephen. Help Overturn 18 USC 922(o) & NFA. 2015. Web Site. <gofundme.com/fmxlnk>.

Statutes, Nevada Revised. Nevada Revised Statues. 2015. Web Site. <https://www.leg.state.nv.us/NRS/NRS-202.html#NRS202Sec320>.

University, Cornell Law. District of Columbia vs. Heller. 18 March 2008. Website. <https://www.law.cornell.edu/supct/html/07-290.ZS.html>.