Mere carry of a weapon RAS? NO! (Here's why!)

[Bruce]

Originally Posted by Lysander

[...] Since all of the US - with the exception of Louisiana - has the Common Law heritage, that would be a massive change to the system, for little practical benefit.

I am not sure I understand what you are stating here.

Are you trying to say that we should adopt a "Common Law" only system? That we should leave the legislators out of the law-making process altogether and simply have the courts make all of our laws through trial decisions?

If so, why on earth does the Constitution allow for a Legislative Branch? Why does the Constitution allow the Legislative Branch to enact laws?
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[TaePo]

Originally Posted by archon

Now, under Commonwealth v. Stevenson, 2006 PA Super 38 (Pa. Super. Ct. 2006), it is permissable for an officer to conduct an investigatory detention if he has some sort of reasoning that you might be carrying a concealed firearm other than just a "hunch." In the case, the majority cites elements such as the outline of a gun, special training, and carry method as legitimate to support a detention.

Let me preface by saying this:
I am not going to be stating that your view is incorrect or not.

What I want to point out is that I do not believe in this line of thinking (regarding bulges, special training or suspicious outlines as RAS).

It would probably be easier to demonstrate by taking an opposite approach and ask:

Upon seeing a bulge, and deducing by ESP training or whatever is acceptable to the court, an officer stops, detains, questions and frisks me and finds no firearm, is that suit for an illegal detention? Apparently the officer's training was wrong. He just stopped me for no reason. And this would bring down the whole house of cards regarding miscellaneous bulges.

The most that could be said about bulges, assuming there is no line of site or the clothing is not see-through, is that either a bulge exists or it does not. There is no magic or shell game to be played here.

I think the courts, if they are playing the bulge = firearm game, are wrong. There are many legal bulges and amongst the firearm bulges, there are many legal firearm bulges (subset if you will). Training may increase your chances of discovery of actual firearms, but we will not hear about the 80% of the time the officers were wrong. So how can the training really be evaluated?

So an officer plays a 'hunch', and discovers a firearm; articulates some excuse for the hunch and voila, we have a self fulling prophecy: we found an armed suspect's gun. I can do that 100% of the time because the 80% of the time I was wrong never makes it to court.

I think it is the wrong standard to have and measure with.

[mjfletcher]

Originally Posted by Bruce

I am not sure I understand what you are stating here.

Are you trying to say that we should adopt a "Common Law" only system? That we should leave the legislators out of the law-making process altogether and simply have the courts make all of our laws through trial decisions?

If so, why on earth does the Constitution allow for a Legislative Branch? Why does the Constitution allow the Legislative Branch to enact laws?
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I think I understand what he's trying to get at. Under a Napoleonic system there is no case law, but also under such a system the law not only defines what is illegal, it also defines what is legal. Under a common law system the law defines what is not legal and anything not covered under the law is legal. The drawback to that is that under common law systems the courts not only rule on whether actions violate the law and to what degree, but also are charged with interpreting the law which is what creates case law when those interpretations are applied.

So we have to choose between common law which includes case law but only allows for laws that define illegal bahavior, or napoleonic which doesnt allow for case law but under which anything not defined as legal is illegal.

A perfect example would be OC. Case law is what determined it to be legal throughout the state, prior to that the only reference to OC was in regards to carrying in Philly. Without case law the wording of the law made it appear that OC was only legal in Philly with an LTCF. The PASC had to interpret the intention of the law in order to make a ruling on the matter which established case law.

Case law is nothing more than the courts referring to previous rulings in similar cases by higher courts to guide their ruling providing for uniformity in judicial decisions and application of the law as well as a need for fewer cases to be appealed to the higher courts.

[Bruce]

Originally Posted by mjfletcher

[...] Case law is nothing more than the courts referring to previous rulings in similar cases by higher courts to guide their ruling providing for uniformity in judicial decisions and application of the law as well as a need for fewer cases to be appealed to the higher courts.

Maybe I'm having an off day here. Maybe it's me. I'm still not sure what you guys are getting at.

"Case law" is "law" - they are "laws" written "from the bench". "Terry", as in "Terry Stop and Frisk" (which has gotten so much attention in the forums here lately) was not a law passed by Congress (as it should have been, imo, before it is accepted as "law"), rather it was a decision made by judges.

At any time a judge decides, he/she can "interpret" (or, at least, under the guise of "interpretation") virtually any law to mean anything he/she chooses regardless of how legislators have written those laws.

And this is a good thing? We should be happy about this?

Is this what you are stating?

Everything not specifically made illegal should (by definition) be legal. I agree 1000% with this principal and want it to remain in our government system.

Are you suggesting that if we only have the legislators, (rather than allowing judges to) create/define/unmake laws that this (above paragraph) must change? That we must change our entire government over to "Napoleonic" style system where everything not "made legal" through written law is therefore illegal?

I must have entirely misread the Constitution. I didn't see anything in there about judges having the power to create legislation through court decisions. I also didn't see anything in there that suggested that, if we did not allow judges to create "case-law", that our entire system must change to allow for the principal where everything not made legal is illegal.
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[TaePo]

Originally Posted by Bruce

Maybe I'm having an off day here. Maybe it's me. I'm still not sure what you guys are getting at.

"Case law" is "law" - they are "laws" written "from the bench". "Terry", as in "Terry Stop and Frisk" (which has gotten so much attention in the forums here lately) was not a law passed by Congress (as it should have been, imo, before it is accepted as "law"), rather it was a decision made by judges.

At any time a judge decides, he/she can "interpret" (or, at least, under the guise of "interpretation") virtually any law to mean anything he/she chooses regardless of how legislators have written those laws.

And this is a good thing? We should be happy about this?

Is this what you are stating?

Snipped for brevity.

And this is what I am wondering as well. Should I (we) be focusing our attention on the ambiguities in the law and some of the leanings of case law and lobby our congress critters to change, add to, detract et al from some of the current statutes to make the law clearer (and less ambiguity so the courts have less wiggle room)?

We can only tangentially affect the courts if at all. But we can light fires under the legislature.

[LittleRedToyota]

Originally Posted by Bruce

"Case law" is "law" - they are "laws" written "from the bench". "Terry", as in "Terry Stop and Frisk" (which has gotten so much attention in the forums here lately) was not a law passed by Congress (as it should have been, imo, before it is accepted as "law"), rather it was a decision made by judges.

let's consider this.

in terry, a police officer...prior to the court being involved...detained and searched a suspect.

there is no "law" at all in question.

the question is "was the search a violation of the 4th amendment"?

that is a question for the courts, not the legislative branch, to decide. (and, frankly, be happy about that. as bad as the courts are at enforcing the constitution, the legsilative branch would be even worse.)

in the terry case, i feel (as you prolly do) that the courts erred. the dissenting opinion in the case explained that error very well, so i won't go into again.

due to the concept of stare decisis, terry set a precedent that guides lower courts in their rulings. now, i also happen to think the supreme court puts too much emphasis on stare decisis and too little on correcting past bad rulings, but that doesn't mean i want to throw the baby out with the bathwater.

there have been many other cases where the courts did throw out a search because it violated the 4th amendment and those also set precedent which lower courts are bound to follow and which the supreme courts (state or federal) will try to follow to honor stare decisis.

one quick example on the state level is hawkins.

if there were no such thing as "case law", hawkins would not matter and you could be searched bases solely on an anonymous tip. is that really what you want?

And this is a good thing? We should be happy about this?

as a mechanism, yes...most certainly. otherwise, we would be subject to the whims of the masses. for example, congress could pass a law banning all guns.

if the supreme court could not "interpret" laws and override the legislative branch, they would not be able to strike down the ban. if they could do that, but there were just no such thing as "case law", they could strike down the ban, but congress could just pass a new one the next day.

and, without "case law", that ban would be in effect until someone got arrested for violating it, challenged it, and the case made its way to the supreme court to be shot down. at which point, congress could just pass yet another ban the next day, which would be in effect, etc. etc.

you would end up with a cycle where guns were banned for two years, then unbanned for one day, the re-banned for two years, then unbanned for one day, etc. etc.

while i agree with you wholeheartedly that the judges we have today do not do their job of sticking to what either the constitution or constitutional laws actually say, the answer is to get better judges...not to dismantle the system.

I didn't see anything in there about judges having the power to create legislation through court decisions.

terry did not create any legislation. it simply (incorrectly, imho) defined an action of the executive branch as not being a violation of the 4th amendment.

we might be happy if terry were not binding. but, we would be most unhappy if many other cases were not binding. like hawkins, heller, etc.

without "case law", the constitution would become essentially meaningless. so, be careful what you wish for.

[mjfletcher]

Originally Posted by Bruce

Maybe I'm having an off day here. Maybe it's me. I'm still not sure what you guys are getting at.

"Case law" is "law" - they are "laws" written "from the bench". "Terry", as in "Terry Stop and Frisk" (which has gotten so much attention in the forums here lately) was not a law passed by Congress (as it should have been, imo, before it is accepted as "law"), rather it was a decision made by judges.

Case law is not law, it is judges accepting a ruling on the meaning/purpuse/definitions/etc of a law as ruled by a previous judge when those things are not spelled out explicitly in the law. Terry was not written by anyone. The ruling in Terry v. Ohio was based on the 4th amendment right to freedom from illegal search and siezure. The law was already written, but it did not define what constitutited a legal search, the USSC interpreted the intentions of its authors when they made their ruling.

They didn't "create" a law, they simply defined what constituted legal under that law.

At any time a judge decides, he/she can "interpret" (or, at least, under the guise of "interpretation") virtually any law to mean anything he/she chooses regardless of how legislators have written those laws.

And this is a good thing? We should be happy about this?

And anytime legislators want they can write a law using vague wording that allows the government the ability to arrest and imprison someone for violating a law that appeared to say the persons actions were legal. A perfect example is the prohibition of firearms on school property except for "other lawful purpose." Just what is "other lawful purpose?" Our legislators could have stated what that meant but chose not to, instead they left it worded vaguely making it impossible for anyone to know for sure if they are in compliance with the law or not.

That's why part of a judges job is interpretation. They have to look at more than just the letter of the law, they have to look at its intent as well which requires interpretation. Its part of the checks and balances written into the Constitution, it prevents legislators from oppressing the people with vaguely worded laws that make people afraid to do anything for fear of violating a law they have no hope of understanding.

When our legislators start writing laws in plain english and explaining exactly what every word and phrase in it means in complete detail judges will no longer have need to interpret them, until then they will continue to have to weigh the letter of the law against the intentions of the law and make interpretations on what exactly the law mean.

Is this what you are stating?

Everything not specifically made illegal should (by definition) be legal. I agree 1000% with this principal and want it to remain in our government system.

Are you suggesting that if we only have the legislators, (rather than allowing judges to) create/define/unmake laws that this (above paragraph) must change? That we must change our entire government over to "Napoleonic" style system where everything not "made legal" through written law is therefore illegal?

In order for judges to no longer need to interpret intentions of laws and the meanings of phrases used in them, everything in them will need to be fully defined by our legislators which would include stating both what is illegal and what is legal.

I must have entirely misread the Constitution. I didn't see anything in there about judges having the power to create legislation through court decisions. I also didn't see anything in there that suggested that, if we did not allow judges to create "case-law", that our entire system must change to allow for the principal where everything not made legal is illegal.
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No judge has ever created legislation, they have ruled on the law based on both the letter and the intent (aka interpretation) and that ruling has since been accepted by all other courts since. Case law is not actual law, it never has been and never will be. Its simply judges saying "this previous ruling makes perfect sense" often enough that the courts accept it as the standard for application of the specific law it relates to.

[ThoughtCriminal]

Originally Posted by lildobe

.....For those of you who still think that the act of carrying a gun is RAS of a crime, I pity you - you do not understand the rights you have in our free society. It is because of people who do not understand what their rights are that we are slowly loosing them. As each person bows to government agents who go beyond the scope of authority granted them by the laws, another chip is taken away from our freedoms. Unless we start to stand up to the government and those who would subjugate us to total rule and remove all of our freedoms, we will find ourselves living in a totalitarian state. Much like the frog who didn't notice he was being boiled for dinner until it was too late.

I urge every one of you who reads this to go and read the constitution word-for-word. It is written in fairly plain language as our founding fathers did not write it for highly educated men. They wrote it for the common man. These men got fed up with the standing government and stood together against it, forming the republic in which we have lived for the past 200-odd years. Please don't let our freedom and our great country be destroyed by ignorance!

In Pennsylvania CC is no longer a right. All your huffing and puffing about standing up for this "Right" is moot. The day we allowed licenses to carry is the day we relinquished this right. So if you really want to stand up for what you believe, see your above words, carry without a license.

[Statkowski]

A slight diversion from the present discussion (law is law except when it's not, or something like that), but still within the parameters of the topic being dicussed (open carry = RAS, etc., etc.):

From our Ohio brethren at open carry dot org:

Let me make something perfectly clear: EVERY COP IN OHIO KNOWS THAT IT IS LEGAL TO CARRY OPENLY! The problem is that some of them don't AGREE with that right, and they choose to harass gun owners because they can get away with it. They fall back on lame excuses about panicked citizens "calling it in" or "inducing panic," as justification to commit civil rights violations. Unfortunately, it is unheard of for an officer to be disciplined for such unlawful conduct.

When a police officer stops and forcibly detains a citizen based solely on the fact that the citizen is openly carrying a firearm, that police officer is committing the crime of Kidnapping. When a police officer demands that a citizen surrender a legally carried firearm, ESPECIALLY when the demand is made at gunpoint, that police officer is committing the crime of Aggravated Robbery.

Does that not also apply to Pennsylvania?

[Bruce]

Originally Posted by LittleRedToyota

the question is "was the search a violation of the 4th amendment"?

that is a question for the courts, not the legislative branch, to decide. (and, frankly, be happy about that. as bad as the courts are at enforcing the constitution, the legsilative branch would be even worse.)

in the terry case, i feel (as you prolly do) that the courts erred. the dissenting opinion in the case explained that error very well, so i won't go into again.

Of course it was a bad "interpretation". I would argue that, in Terry, there was no "interpretation" - the court simply "found" new "laws" (such as Reasonable Articulable Suspicion as an intermediary step before a warrant - actually, before Probable Cause, but that's another discussion altogether) to support the outcome of the trial that they (obviously) wanted.

Of course I don't want cases tried in the Legislative Branch - that isn't their job.

I don't know if there is a conspiracy afoot to make me think I am crazy or what...

Look; the way I see it is simple: Legislators make/define, re-make/re-define and unmake laws. Oh, and declare war and decide on budgets. That's about it.

Judges (sometimes in concert with a jury) decide if the laws (made and defined by the legislators) were broken; and, if they were, by whom; and they then decide the punishment to be carried out for convicted criminals. That's it.

If a law is "ambiguous", what a judge *should* do is declare the law unenforceable the way it is currently written - period. At any such time, the legislators should 'pick up the ball' and re-write/better define the law.

This is how I believe our judicial system is *supposed* to work.

One of the most ridiculous things I've seen in America is where: until a law has been successful in court (meaning: some judge made a deciscion on it), then (according to the Judicial Branch) it isn't 'really' a law. Good grief! Why do we (the people) let them get away with such crap? Someone has to break (well, be tried for breaking) a law before it's a truly enforceable law? It's just ridiculous.

Other than academically, I am not interested in how they run justice systems in other countries nor am I interested as to how legal systems worked before we became The United States.

Originally Posted by LittleRedToyota

due to the concept of stare decisis, terry set a precedent that guides lower courts in their rulings. now, i also happen to think the supreme court puts too much emphasis on stare decisis and too little on correcting past bad rulings, but that doesn't mean i want to throw the baby out with the bathwater.

The concept of Stare Decisis is fine. The implementation of Stare Decisis as it applies to enforceable "laws" and police procedures should be made *illegal*.

Originally Posted by LittleRedToyota

one quick example on the state level is hawkins.

if there were no such thing as "case law", hawkins would not matter and you could be searched bases solely on an anonymous tip. is that really what you want?

Fine by me.

I am more than willing to "throw the baby out with the bathwater" if it gets rid of "case law".

What *should* have happened in Hawkins, if the courts weren't so screwed-up with their mish-mash of... *crap*, was that the 4th Amendment, 2nd Amendment, and Article 1, Sections 1, 8 and 21, should have been cited and the whole case thrown out!

But, since our country's founding, the courts have been giving themselves more and more power and authority - and this has been virtually unchecked. The Judicial Branch will swat at the other two branches without fear, while seemingly enjoying the the same powers of the other two branches these days.

Originally Posted by LittleRedToyota

as a mechanism, yes...most certainly. otherwise, we would be subject to the whims of the masses. for example, congress could pass a law banning all guns.

Um... they did.

Chicago, Washington D.C. and other municipalities have either banned, or practically banned, all guns.

Yes, I am familiar with Heller. Tell me: has much changed in D.C. since Heller?

Originally Posted by LittleRedToyota

if the supreme court could not "interpret" laws and override the legislative branch, they would not be able to strike down the ban. if they could do that, but there were just no such thing as "case law", they could strike down the ban, but congress could just pass a new one the next day.

Your view of this is well out of phase with mine.

I don't see it as needing the courts to "interpret" a new law that we don't like and, effectively, "re-write" it so we can live with it.

The way I see it, the courts should have taken one look at the first anti-weapon/weapon-control law and rejected it as clearly unconstitutional. This is how I see the "check and balance" as coming from the Judicial branch on the Legislative branch (well, how it should/should've, anyway).

As all courts merely have to cite Article VI of the Constitution of the United States with regard to any congressional "weapons ban", I fail to see why we need "precedent" - the Constitution is the "precedent".

Originally Posted by LittleRedToyota

while i agree with you wholeheartedly that the judges we have today do not do their job of sticking to what either the constitution or constitutional laws actually say, the answer is to get better judges...not to dismantle the system.

I am not suggesting we "dismantle the system". I guess I just see the system in a different light than you (and many others - especially those incredibly self-important members of the Judicual branch) do.

Originally Posted by mjfletcher

They didn't "create" a law, they simply defined what constituted legal under that law.

Okay. Well, in more layman's terms, I say: they wrote stuff (or "interpreted" stuff, or whatever other euphemism you prefer) into the Constitution that clearly is not there.

The 4th Amendment is pretty clear to me. Those judges, however, decided that the founders left out (but intended to include) the part where you can poke and fondle people if you possess any "Reasonable Articulable Suspicion" that criminal activity may be afoot.

I guess they held a seance and 'channeled' James Madison.

Okay... It's just me... Okay? I'm the crazy one. I'm obviously just not comprehending the dizzying complexities and convoluted intricacies of our 'modern justice system' and how our very freedoms and rights as citizens hangs on the premise of "case law".
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