SECOND AMENDMENT
A Cautionary Tale
In some states, the right to carry openly may be legal, but it may cause you some grief.
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Careful guardians of the Second Amendment may have momentarily taken heart from language contained in a recent Bush Administration brief to the U.S. Supreme Court. In the submission, U.S. Solicitor General, Ted Olson, told the Court ". . .the current position of the United States is that the Second Amendment more broadly protects the rights of individuals" to own and carry firearms, "including persons who are not members of any militia or engaged in active military service."
Thus the Administration came down squarely in favor of the more historically correct interpretation of the Second Amendment, while at the same time rekindling a debate as old as the Republic itself.
But these soothing words spoken before the highest court in the land should not distract informed gun owners. Gun laws are not enforced in the hushed marble halls of our courts, the United States Congress or the 50 state capitols. Justice is dispensed on the street, by the brave men and women who wear a badge. Most law enforcement officers know the law and enforce it professionally. However, when there's a gun involved, even a legal firearm owned by a law-abiding citizen, too often professionalism goes out the window, and with it goes our Second Amendment protections.
A number of states, including Virginia, allow gun owners to carry loaded handguns in open view in their vehicles without a CCW permit. Specifically, Virginia statute allows the presence of a loaded handgun "about your person" in a vehicle, so long as it's not "hidden from common observation." In practice, this means a gun may be carried on the dashboard or the front passenger's seat. Police departments and knowledgeable attorneys are in general agreement about this characterization of the law.
Unfortunately, as with all gun-related matters, the devil is in the details. How do patrol officers actually react when they encounter a legal, loaded handgun in a vehicle? To find out, I conducted an informal poll of nearly 25 law enforcement agencies in Virginia, including urban, suburban and rural jurisdictions. I did not include any jurisdiction that has its own laws or ordinances covering handguns in vehicles. One of the reasons I chose Virginia, in addition to my 22-year residence, is the fact that ours is clearly a pro-gun state. The national headquarters of the National Rifle Association is located in Fairfax. The state recently elected a pro-gun Democrat governor, which is a watershed event in itself. All that being said, the results of my poll could only be described as confusing and disheartening to law-abiding gun owners.
My polling methodology was very simple. I asked police departments to consider an unthreatening hypothetical situation involving a minor traffic stop and the discovery of an openly displayed, loaded handgun in the front passenger's seat. The police departments were asked to assume that the driver's license plates and operator's license came back clean when checked for warrants or infractions. Our hypothetical driver was calm, well dressed and cooperative with the officer's instructions. The law enforcement agencies were then asked to answer an open-ended question about how their officers would handle such a traffic stop.
It became immediately apparent that virtually none of the departments contacted had any written procedures covering minor traffic stops. In the absence of written guidelines, officers are given broad discretion to handle situations that may arise. The vast majority of officers contacted learned whatever "discretion" they might possess during academy training, not from guidelines established by their respective departments. This situation presents a cause for concern in itself.
In our hypothetical scenario, the officer approaches the vehicle and expects to see the driver's hands on the steering wheel. Virtually all of the police departments expressed a desire for the driver to advise the officer of the presence of the loaded handgun, even when clearly "in common observation," as Virginia law specifies. Because every officer's primary concern is his own safety, the driver will probably be asked to step out of the vehicle. This action has the effect of separating the driver from the gun and should be viewed as reasonable.
However, some of the more atypical responses from officers were downright bizarre and hair-raising. One officer said she would immediately call for backup, "because you don't know if this guy is a wacko." You have to wonder if the mere possession of a legal firearm in a car qualifies an individual as a "wacko." Several others said they would draw their handguns, even if the driver was cooperative and unthreatening. Several more said they would forcibly remove the driver from the vehicle, handcuff him, search him and place him in the back seat of the police cruiser. Knowledgeable attorneys describe these responses as wildly disproportionate to the situation and clearly illegal when dealing with an individual having committed no crime.
The appropriate, legal handling of the driver's gun was also a puzzle to many officers. Most knew they could not forcibly take possession of the gun, but a number of others believed they could take the gun and search the car without the driver's consent. Again, attorneys specializing in gun-related cases point out that such activity is illegal in the absence of any probable cause to believe that a crime has been committed. Remember, the mere presence of a handgun in a vehicle is a right, not a criminal act.
All of the police agencies agreed that at the end of the traffic stop, the driver would be free to go about his business with nothing more than a traffic ticket, at the most. However, this unanimity about the final conclusion of our hypothetical scenario raises serious concern about the wide variety of potential officer behavior during the course of the traffic stop. After all, we're talking about one simple Virginia state law that appears to be interpreted in the same way by law enforcement officers and defense attorneys alike.
One officer had a cavalier approach to the potentially wide variety of experiences that the legal gun owner might encounter. "If you asked 100 officers, you'd get 100 different responses," he said breezily. Somehow, that type of attitude does little to instill confidence in the integrity of the law enforcement system.
The bottom line is this: Citizens in the course of legally exercising their Second Amendment rights should not have to wonder whether the "good cop" or the "bad cop" showed up to pull them over. Knowledge of the law, and how to comply with it, should be sufficient to move about unmolested. Gun owners who choose to legally carry loaded, visible handguns in their vehicle should reasonably expect to be treated courteously and professionally by law enforcement officers, so long as they extend courtesy and cooperation. Unfortunately, this informal poll of law enforcement officers who protect and serve in the "cradle of democracy" can only have a de facto chilling effect on the lawful exercise of Second Amendment rights and, in the process, lift the hearts of those who have sought for so long to disarm law-abiding Americans.
