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

[lildobe]

I'll keep this short and sweet. (ETA: Ok, so it didn't come out so short)

In the last couple weeks, we've had an explosion of threads here that have dealt with the issue of RAS when it comes to carry of a firearm.

Many of the members here have taken the position that the mere act of carrying a firearm is enough RAS of a crime that a police officer can detain said carrier and ask for their LTCF. They have backed this only with their opinion and the opinions of LEOs that they have spoken to.

Others, among which are some of our more respected and venerable members, have put together a convincing argument that, since in general carrying a firearm is a legal activity, they cannot. These people have backed this assertion with PASC rulings and opinions as well as references to statutes.

The simile to driving a car has been made as well - since both require a license to do. A police officer cannot stop you and check to see if you hold a valid driver's license just because you are operating a vehicle absent an actual, observable, violation. Vis–à–vis, an officer cannot demand to see your LTCF simply because you are carrying a firearm absent RAS of a crime in progress. I agree with this comparison, personally, but many of the detractors here do not.

But I give you the final word as to why the mere act of carrying a firearm is not RAS of a crime: The Constitution of the Commonwealth of Pennsylvania. Article 1, Section 21: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Assuming that anyone carrying a firearm is carrying illegally and demanding they produce a LTCF is, in fact, questioning their right to bear arms as affirmed by our states constitution and therefore is a violation of their civil rights - not only under out states constitution but under the 4th amendment of the U.S. constitution which guarantees us "The right [...] to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"

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!

[schr8er2000]

VERY well put..... at NO time should nor CAN a LEO stop you for no reason....and only by doing what is LEGALLY allowed by the Constitution can we all maintain our rights.....

Would rep you but have to spread it around...... SORRY

[Curmudgeon]

There is a little more about it in Commonwealth v. Hawkins as well.

http://reference.pafoa.org/caselaw/P...lth-v-hawkins/

This is not a situation where a court case is used to create law or set a precedent, rather it is a case that can be used to illustrate laws and rights that already exist...

The Commonwealth takes the radical position that police have a duty to
stop and frisk when they receive information from any source that a suspect has
a gun. Since it is not illegal to carry a licensed gun in Pennsylvania,4 it is
difficult to see where this shocking idea originates, notwithstanding the
Commonwealth's fanciful and histrionic references to maniacs who may spray
schoolyards with gunfire and assassins of public figures who may otherwise go
undetected. Even if the Constitution of Pennsylvania would permit such
invasive police activity as the Commonwealth proposes -- which it does not --
such activity seems more likely to endanger than to protect the public.
Unnecessary police intervention, by definition, produces the possibility of
conflict where none need exist.

Thanks for posting this. Sorry I didn't get to meet you at Venice Pizza!

[lildobe]

There is a little more about it in Commonwealth v. Hawkins as well.

That is the Supreme Court ruling/opinion that I was referring to in my OP

And yes, I am sorry I didn't get a chance to meet you - there were just too many people there.

[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.

[40twist]

Great post!! Thank You for writing that. I said in another post that the people who thought that carrying was enough RAS for police to question you , that their views or understandings of their rights seem to be getting warped by the media or anyone for that matter who doesn't know their rights. This is exactly what the govt wants is for them all to kinda just erode away without anyone knowing. We have to know our rights so we can exercise them. If we don't we will lose them.
LOL hope that made sense , but again thanks for posting that!

[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.

[KMAG]

"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. " - from the Hawkins case.

The above was dicta and therefore not at issue in the case and has no effect of law. However, I interpreted it as a warning that RAS could exist if the cc observed by the LE observed was likely a criminal act. For example, if the person looked under age.

Minds can differ on why the SC included this reference as it could mean just the opposite and the SC is eager to review such a case - but I doubt it. I would like to be wrong on this last assumption and see the Court review a few more of these cases to resolve such questions.

[Bruce]

Spread the wealth around my large, hairy butt!

Awesome post, lildobe! I'd rep you if the system here wasn't based on the new economic recovery plan.
.

[mjfletcher]

"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. " - from the Hawkins case.

The above was dicta and therefore not at issue in the case and has no effect of law. However, I interpreted it as a warning that RAS could exist if the cc observed by the LE observed was likely a criminal act. For example, if the person looked under age.

Minds can differ on why the SC included this reference as it could mean just the opposite and the SC is eager to review such a case - but I doubt it. I would like to be wrong on this last assumption and see the Court review a few more of these cases to resolve such questions.

Even if the person looks underage, there are exemtions to licensing that would permit some underage individuals to cc without a license, 19 yr old off duty LEO for example. So even someone looking underage is not RAS of a crime. My reading of the statement is that if an officer has some reason other than just the carry of a gun he could have RAS to stop and question the individual.