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

[fingers80002]

Originally Posted by Dredly

Pretty sure they have to tell you, or you play the "Am I being detained or am I free to go" game.

That's what I thought.

[headcase]

Originally Posted by MikeB0

While I agree that just the mere carrying of a firearm does not produce RAS, and having used Hawkins myself as evidence of this in the past. I have recently reread Hawkins and I think we may want to be careful saying that Hawkins addresses this issue completely.

From Hawkins:
"We do not address the scenario in which the officer has an independent reason to believe that a
crime (carrying an unlicensed gun) may be in progress, inquires as to whether the gun is licensed and
the person does not answer."


I'm not sure what a unlicensed gun is under PA law, I thought people were licensed. I supposed this could be twisted and possibly used to say that Hawkins doesn't address an officer asking for a LTCF when they see a person carrying a firearm. Just thowing it out there for discussion.

I personally still believe that just as driving a car in and of itself doesn't give RAS without any other circumstances, neither does just carrying a firearm.

Since you brought this up, I would like to address it. Taken in the context of the whole ruling, and the tone in which it was written, this little footnote clearly, IMO, supports that the basic issue the justices had with the whole case was the lack of RAS and how often just seeing or believing a gun is involved, leads to illegal searches and seizures. In the footnote, they specifically state that they are not addressing what might occur if the officer actually had RAS, asked for the LTCF, and was ignored. They did not say, and I believe this was deliberate, "We do not address the scenario where the officer has an independent reason to believe that a crime may be in progress, demands to see the LTCF, and the person does not answer.". They use the term inquires. It is my belief that they were very sure that a person having a firearm was, by itself, not a valid RAS to perform a Terry stop, or frisk, or any other form of invasive interjection of law enforcement. I also believe that by including that footnote, they were saying that if a LEO has a suspicion, instead of getting confrontational themselves, they should inquire, instead of demand, and see where that goes.

People use that footnote(not saying you did) as if it backs up their assertion that not responding when asked about a LTCF, is reason for a cop to go balls out on you with a nightstick, saying that because they specifically said they do not address that scenario, it must have been OK with them. It drives me absolutely insane when I see examples of that.

[LittleRedToyota]

Originally Posted by ksig1869

I had a question though about the interpretation of the word militia. Isnt the definition of a militia something enacted in the case of an emergency, which is not the National Guard since they are funded by the government and supplement the regular army at any time, not just emergency.

the militia is defined by federal law. here is the definition:

from: http://www.law.cornell.edu/uscode/10/311.html

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

Originally Posted by ksig1869

So the people must have their own weapons to aide the regular military in an emergency. I know it doesnt say that outright but doesnt that make a little more sense than saying only people in a militia can possess a weapon? Im trying to understand the whole argument by the antis. Tell me if I have it totally backwards.

as a general principal, an introductory clause does not restrict an operative clause unless it explicitly does so...and, frankly, there is no reason to accept that it would. the introductory clause to the 2nd amendment does not explicitly restrict the operative clause and, frankly, can basically be ignored.

the operative clause says "the right of the people...", not "the right of the militia..." thus, frankly, it is clear the 2nd applies to "the people", not "the militia". if it was intended to provide the militia with the right to keep and bear arms, it would say "the right of the militia...", not "the right of the people..."

the only way around that is intellectual dishonesty (pretending the introductory clause says something it obviously does not). so, frankly, the definition of militia is pretty much irrelevant anyway.

[headcase]

I am posting this for a friend, I don't 100% agree with it, but I think he wanted me to post it here.
I also posted it in this thread, instead of the original, for obvious reasons:

http://forum.pafoa.org/open-carry-14...tml#post670927 (Game Officer harassment) There still seems to be a lot of confusion about RAS, PC, and when these exist regarding a (potential) violation of 6106 and whether RAS and PC can be generated specifically from a potential 6106 violation. This issue has been beaten to death and I don't see why round-robin misinformation is still occuring when we have previous threads to reference on this very subject. The only novel concern on the thread is about PAGC jurisdiction at the fast food establishment. We seem to quickly forget about Robinson, because it isn't immediately clear that Hawkins protects us from Robinson (although Robinson being the earliest in the three-part series of 6106/6108 opinions.) In Michele's case, the officer(s) (and there is still room to determine whether they qualify for 6122) have made an independent observation of a concealed firearm. This renders Hawkins outside of purview. I, sometime ago, had you post Robinson for this very reason, because it will imaginably be used to fuck someone from PAFOA over in court some day. No Magisterial District Justice or Court of Common Pleas judge is going to dismiss Robinson in entirety as being a completely errant judgement by the appealate courts. Further, no appellate judge, especially at the Commonwealth Court level, is likely to say the same of Robinson, even though it really is out of line. Robinson says that the following is enough for RAS of a 6106 violation: "After he stepped out of the van, Officer Hamman informed appellee that she had seen a gun in the back of his pants. She performed a quick pat down of appellee and discovered a holster inside the back of his shorts." and Stevenson says that RAS occurs at the following: "It was Appellant who drew the attention of the officers because: 1) he was actually carrying a handgun; 2) the officers were able to see the outline of the handgun through Appellant's coat pocket; and 3) Appellant was carrying it in a manner very different from those individuals who carry weapons on the job or who are used to carrying licensed handguns." Although I think both cases are incredibly erroneous because an offense does not exist in part and therefore cannot be committed without the full elements of the offense more likely to exist than not, the courts are saying here that the independent observation of a person ('any person') carrying a firearm (believed to be by training) concealed ('who carries a firearm concealed on or about his person', garnered by the likelihood that exists of the concealed carry based on training) in a manner 'likely to be used by someone who doesn't carry in the course of work duty' (training apparently suggests this person is likely to lack a license?) is enough. I think it's bullshit too, since the courts have also found that "except in his place of abode or fixed place of business," is an element of the offense (Com. v. Parker, 847 A.2d 745, Super.2004 http://www.aopc.org/OpPosting/Superi.../s02017_04.pdf although it was called an affirmative defense back in 1985: Com. v. Turner, 488 A.2d 319, 339 Pa.Super. 81, Super.1985) and not an affirmative defense, and further that 'likely to be used by someone who doesn't carry in the course of work duty' has very little to do with the likelihood of licensure. Without these two elements being independently observed, I find it hard to claim RAS of a crime. The idea of all of the elements needing to be believed to occur, to have occured, or are about to occur, in unison for RAS is something that should be expounded upon by GunLawyer. I find it very curious that some people are throwing around 6122 in a light that negative for license-holders, even though previous discussions on this topic matter have deferred to a negative light only for the Commonwealth. 6122 doesn't have any annotated case law at this time, to my knowledge. I direct you to review Stevenson and Robinson if you have not done so lately (even though I know you've in the past basically discarded them in light of Hawkins, even after the footnote that the court said their opinion does not answer the question about independent observation, which to me suggests non-abrogation of Stevenson and Robinson. I realize they can't just wash their hands of such question if, to reach their holding, the court had to answer certain questions about terry stops and arrest procedures about fixing rights.) <http://forum.pafoa.org/concealed-ope...-robinson.html (Can someone post the complete opinion(s) for Robinson)> Applying Robinson broad subjects of law could create a police state in a day, because what it says is that all of the elements don't have to be believed to have occured in past, present, or near future, or that all people or environments are by nature filled with bad people who violate laws. That is a 'papers, please' society and a usurpation of (several) due process rights. We throw around the suggestion that being a automobile operator does not mean that a person is more likely unlicensed than licensed, and therefore officers cannot consider only that a mobile is being operated by a person RAS of criminal activity afoot. While 18PACS6122 differs from 75PACS1501(that all motor vehicle operators must be licensed except for the exempt)/75PACS1511(must produce license on demand), 'demand' might suggest that such an action can only take place when RAS already exists for any other crime, as opposed to a mere encounter where all things are requests. That could change any day upon a Robinson application.

[mjfletcher]

Originally Posted by ksig1869

I had a question though about the interpretation of the word militia. Isnt the definition of a militia something enacted in the case of an emergency, which is not the National Guard since they are funded by the government and supplement the regular army at any time, not just emergency.

So the people must have their own weapons to aide the regular military in an emergency. I know it doesnt say that outright but doesnt that make a little more sense than saying only people in a militia can possess a weapon? Im trying to understand the whole argument by the antis. Tell me if I have it totally backwards.

My understanding of militia is that it is every able bodied person who is not in the regular military. The militia act of 1903 etablished the National Guard as the organized/regular militia, which would make everyone else the unorganized/irregular militia.

[TaePo]

Originally Posted by Dredly

While I agree 100% with you that carrying a gun does not give an officer RAS to search you, they do NOT need RAS to QUESTION you and if your RESPONSE to their questions are not what they expect it may give them RAS.

I'm going to use Michelle's example, not that she did anything wrong but when asked if she had a license for her pistol she told the officer to go harass someone else because he can't ask that.

This, in my opinion, WOULD give an officer RAS to assume you are doing something illegal, they asked a simple yes/no question and instead of answering they were told to go away. If when they asked she would have said "yes" and then when asked to display it she refused she would have been on better standing in my opinion as she did not give the officers the RAS they would need to request the permit. If she said "I'm not talking to you without a lawyer" she would have been better off then saying "go harass someone else"

Carrying a gun = No RAS
printing =No RAS
Being questioned about a gun and either being "shady" or combative = RAS.

What if she answered, "I refuse to answer on the grounds it may incriminate me and I do not wish to answer any questions without my lawyer present."

My understanding is that such a statement cannot be used as supposition of guilt which I would think extend to RAS as not valid.

If the LEO's question is not a valid eg. lawful request (to see LTCF) he would have no legal standing to infer anything from a non-answer. (IANAL)

[TaePo]

Originally Posted by Paradigm

Is the mere presence of a cell phone a reason to stop and question someone? NO! It's just a device to enhance and enjoy the First Amendment.

Likewise, a gun is simply a device to enhance and enjoy the Second Amendment.

The only stigma placed on guns is the one we allow to be placed upon it.

This is what I call the 'magic talisman' effect regarding firearms.

Firearms are a deadly tool with deadly effects as part of any defense (lawful) use or offensive (criminal) use.

And thusly, we get firearm=bad guy = RAS = investigation = intrusion on lawful citizen = unsecure gun is criminal trial, unsecure auto is 90 dollar fine, WTF??

And this extends into our own gun communities. In fact, feeling safer because you are armed is also a fallacy to the magic talisman effect. You stand a better chance of surviving a criminal assault, but it is not guarantee you will survive. Same with training. (A part of this reaction/talisman effect may be due to wanting to feel special or priviledged to have a badge or carry as in LTCF for others or just in owning and hunting with firearms.)

I am short and some of the taller guys would kid with me or another shorter person in the Army because they were all big and bad and we were puny.

My stock answer (and I was just joking as they were to us in the same morbid way), "Just who do you think the sniper will notice first on the DMZ? Who is he going to go for first? The short puny guy or the tall Arnold Schwarzenegger types? Who would be more dangerous to come to CQB with and who would be a more psychological target to hit and kill morale of the enemy! All the training in the world won't prevent a lucky shot by the enemy anyways."

But this doesn't mean you don't keep trying to improve your chances of success, mind you. Just don't think this (being armed, trained, aware) guarantees survival. It just increases the odds that you can overcome a less prepared criminal.

Sorry for the rant, but because I see the fallacy infiltrate the pro-gun people...

The more we see the 2A as belonging to the general public and less to a priviledged class, the sooner we can get back to its original meaning.

[TaePo]

Originally Posted by tlgpa

This couldn't be farther from the truth. The founding fathers were predominately lawyers.

The Founding Fathers had strong educational backgrounds. About half of the men had attended or graduated from college in the colonies or Britain. Some men held medical degrees or advanced training in theology. For the most part, the delegates were a well-educated group.

But they were scientific and magnanimous men. They eschewed the temptation to grab power (for the most part) for the possibility of avoiding what they conceived was the downfall of all governments to date, mainly falling from the graces and control of the people.

[LittleRedToyota]

Originally Posted by headcase

I am posting this for a friend, I don't 100% agree with it, but I think he wanted me to post it here.
I also posted it in this thread, instead of the original, for obvious reasons:

http://forum.pafoa.org/open-carry-14...tml#post670927 (Game Officer harassment) There still seems to be a lot of confusion about RAS, PC, and when these exist regarding a (potential) violation of 6106 and whether RAS and PC can be generated specifically from a potential 6106 violation. This issue has been beaten to death and I don't see why round-robin misinformation is still occuring when we have previous threads to reference on this very subject. The only novel concern on the thread is about PAGC jurisdiction at the fast food establishment. We seem to quickly forget about Robinson, because it isn't immediately clear that Hawkins protects us from Robinson (although Robinson being the earliest in the three-part series of 6106/6108 opinions.) In Michele's case, the officer(s) (and there is still room to determine whether they qualify for 6122) have made an independent observation of a concealed firearm. This renders Hawkins outside of purview. I, sometime ago, had you post Robinson for this very reason, because it will imaginably be used to fuck someone from PAFOA over in court some day. No Magisterial District Justice or Court of Common Pleas judge is going to dismiss Robinson in entirety as being a completely errant judgement by the appealate courts. Further, no appellate judge, especially at the Commonwealth Court level, is likely to say the same of Robinson, even though it really is out of line. Robinson says that the following is enough for RAS of a 6106 violation: "After he stepped out of the van, Officer Hamman informed appellee that she had seen a gun in the back of his pants. She performed a quick pat down of appellee and discovered a holster inside the back of his shorts." and Stevenson says that RAS occurs at the following: "It was Appellant who drew the attention of the officers because: 1) he was actually carrying a handgun; 2) the officers were able to see the outline of the handgun through Appellant's coat pocket; and 3) Appellant was carrying it in a manner very different from those individuals who carry weapons on the job or who are used to carrying licensed handguns." Although I think both cases are incredibly erroneous because an offense does not exist in part and therefore cannot be committed without the full elements of the offense more likely to exist than not, the courts are saying here that the independent observation of a person ('any person') carrying a firearm (believed to be by training) concealed ('who carries a firearm concealed on or about his person', garnered by the likelihood that exists of the concealed carry based on training) in a manner 'likely to be used by someone who doesn't carry in the course of work duty' (training apparently suggests this person is likely to lack a license?) is enough. I think it's bullshit too, since the courts have also found that "except in his place of abode or fixed place of business," is an element of the offense (Com. v. Parker, 847 A.2d 745, Super.2004 http://www.aopc.org/OpPosting/Superi.../s02017_04.pdf although it was called an affirmative defense back in 1985: Com. v. Turner, 488 A.2d 319, 339 Pa.Super. 81, Super.1985) and not an affirmative defense, and further that 'likely to be used by someone who doesn't carry in the course of work duty' has very little to do with the likelihood of licensure. Without these two elements being independently observed, I find it hard to claim RAS of a crime. The idea of all of the elements needing to be believed to occur, to have occured, or are about to occur, in unison for RAS is something that should be expounded upon by GunLawyer. I find it very curious that some people are throwing around 6122 in a light that negative for license-holders, even though previous discussions on this topic matter have deferred to a negative light only for the Commonwealth. 6122 doesn't have any annotated case law at this time, to my knowledge. I direct you to review Stevenson and Robinson if you have not done so lately (even though I know you've in the past basically discarded them in light of Hawkins, even after the footnote that the court said their opinion does not answer the question about independent observation, which to me suggests non-abrogation of Stevenson and Robinson. I realize they can't just wash their hands of such question if, to reach their holding, the court had to answer certain questions about terry stops and arrest procedures about fixing rights.) <http://forum.pafoa.org/concealed-ope...-robinson.html (Can someone post the complete opinion(s) for Robinson)> Applying Robinson broad subjects of law could create a police state in a day, because what it says is that all of the elements don't have to be believed to have occured in past, present, or near future, or that all people or environments are by nature filled with bad people who violate laws. That is a 'papers, please' society and a usurpation of (several) due process rights. We throw around the suggestion that being a automobile operator does not mean that a person is more likely unlicensed than licensed, and therefore officers cannot consider only that a mobile is being operated by a person RAS of criminal activity afoot. While 18PACS6122 differs from 75PACS1501(that all motor vehicle operators must be licensed except for the exempt)/75PACS1511(must produce license on demand), 'demand' might suggest that such an action can only take place when RAS already exists for any other crime, as opposed to a mere encounter where all things are requests. That could change any day upon a Robinson application.

although the formatting makes it hard, everyone should read the above a couple times, imho.

everyone should also read robinson and stevenson...especially robinson...a few times, too.

should just CCing or having a gun in a car be RAS? nope, of course not.

is it actually considered RAS? pretty much...it does, of course, depend on the totality of the cicrumstances, but neither stevenson nor robinson--especially robinson--had a whole lot of circumstances beyond just the gun itself.

[FromMyColdDeadHands]

Originally Posted by silverfox031

Let me stir the "Pot" Food for thought

As the Criminal ellement, illegal aliens, and Legally admitted "Covert Islamic extremists" study USA Laws that Allow open carry, do so, just as they are about to commit a crime of violence.

Since they know they have no fear of being stopped for just openly carrying, to validate their legality.


And please don't respond that they would not be that stupid to do so, because, if the majority of criminals were "Rocket scientist's they would not get caught, in many instances.


What tools under the "Law" as previously described would Law Enforcement have, (without reasonable suspicion of a crime is about to occurr, or has occurred).

To prevent a such persons from carrying out criminal acts?

Nothing will prevent them from commiting crimes except a well armed populace. The fact is that in a free society Sh*t happens!!! But we shouldn't use the fact that crime occurs (no matter who the criminal is) to ban beliefs or activities.

The answer to such crimes is in most cases the death penalty (a horribly underused mechanism of behavior modification), not general deprivation of constitutionally protected rights!!!

Think about this, if someone did something SO heinous that we wish to deny them their RKBA, why didn't we execute the SOB to begin with???