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This is part two of a five-part article series discussing the merits of, and debunking, arguments in favor of further gun control. You can read article one here

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Preface: This article is intended to make a logic driven argument, supported by evidence and reason, that teachers, faculty and administrators should be allowed to take individual accountability for their safety, and the safety of those in their classrooms. The reality is, short of dispatching with evil there is no good solution to this problem. There are two terms often used when discussing mass shootings, “stop” and “prevent”. Those terms are not synonymous in this context. Prevention of mass shootings is a social science discussion that involves a potentially infinite number of variables. I am not qualified to speak on that topic, therefore I won’t. Stopping mass shootings, however, entails a discussion of how to quickly and decisively end a violent attack on our schools, a much more reactive analysis. In that regard I am qualified to speak, and that is the only topic discussed in this article. I am a college professor. I am a parent of small children who I drop off at school daily. I have hundreds of other people’s children in my college classes each semester. I care a great deal about my students. I understand this issue, much more than most. I take it seriously. I am also a firearm instructor and armed security guard instructor, who has spent the last decade running one of the largest civilian firearm training companies in America, instructing over 150,000 people in nearly 30 states in our training courses.

I understand many others, roughly half of our country, feel differently than I do about this issue, and have different backgrounds than I do. Cognitive bias and confirmation bias are real. We all want to hear viewpoints that agree with us, and that includes me. Einstein, while pondering why people think the way they do, noted that people find difficulty understanding new concepts “when an experience comes into conflict with a world of concepts already sufficiently fixed within us.”[1] My hope in this article is to address this issue, which affects us all, in a way that invokes a pensive discussion and sparks a desire to look outside the status quo world of concepts. I am not writing this for people who agree with me, I am writing it for those who don’t. I will not use intentionally inflammatory language, nor will I make reference to any political parties or cast mass judgments. Our society is beginning to view screaming at someone with differing views, in an attempt to silence them, as acceptable discourse. It is not. We must be better than that. Please consider what I have written below, and respond with your thoughts. I will welcome hearing differing, civil, views.

Synopsis: Training A Relatively Small Percentage Of Teachers To Obtain A Variety Of Skills, Including First-Aid, Tactical Firearm Skills, And Threat Assessment, In The Same Manner Armed Security, Law Enforcement And Airline Pilots Are Currently Trained, Would Be A Cost Effective And Practical Step To Curb Mass Shootings In American Schools. 

Related Gun Control Argument: Guns have no place in education. Our students shouldn’t have to worry about guns while learning. A teacher is more likely to harm a student than stop a bad guy. Teachers aren’t capable of stopping bad guys. More guns won’t solve this problem. 

Argument in Support of Synopsis:

The right to self-preservation, that is the right to defend oneself from violent attack, is the most fundamental right any human being has.[2] In comparison to the right to self-preservation, all other rights must logically be placed in subordination. After all, if your life may be taken from you then what good is a right to vote, or a right to speak, or a right to marry? As with all fundamental rights, the right to self-preservation is also an individual right. The individual right status means, just as I cannot be compelled to forfeit my right to vote to the government to vote in my stead, or my right to speak to the government to speak in my stead, I should not be compelled to outsource my individual right to personal protection to the government. I can, of course, voluntarily choose to forfeit any of my rights, but I should not be compelled to do so. Like all rights, however, my right to self-preservation is not limitless. There are reasonable, limited, restraints placed on all constitutional rights. The oft cited yelling fire in a theater, for example, is not protected by the First Amendment. My wife and I have the right to procreate without the government interfering, but I can’t do it on a public sidewalk. Knowing this, educators (like myself) should be entitled to one of two things. Either:

  1. Our schools should be secured in a manner reasonably calculated to ensure no one with a firearm/weapon may enter (like our airports); or
  2. A system should be established to enable faculty, staff and administrators who possess the proper certifications and training to carry firearms at their place of employment. 

Anything less than the above is a violation of the fundamental rights of those who work in education. You cannot strip millions of Americans of their right to defend themselves, and provide no alternative to ensure their safety. Such a course is illogical. Such a course violates the most basic of civil rights. Such a course is destined to see a continuation of the destruction we are currently seeing.

The Cost & Practicality of Security Screening:

Security screenings, like those in post 9-11 airports are staggeringly expensive. Costing roughly 8 billion dollars annually[3], and failing to detect threats roughly 95% of the time[4], one can question the viability or efficacy of rolling out a similar program for our schools. With nearly twenty times more public schools in America than airports[5], and with education spending a constant political issue, we can assume an expenditure of $160 billion to install airport style security in our schools is not something we will see. Simple magnetometers and lock down protocols, such as those commonly used by courthouses and sports arenas are a much more cost-effective alternative. However, given the nature of most school campuses (including colleges) where students are routinely leaving buildings and reentering buildings in a rush to get to their next class, the practicality of a metal detector search across all schools is dubious. It could certainly be installed in many schools, likely with great deterrent effect, but it is not a practical solution across the board (including at the institution where I teach).

The Cost & Practicality of Allowing Armed Educators:

The Washington Post analyzed the cost of training and arming educators, estimating the cost of doing so with 20% of our educators (or 718,000 individuals) at between $718 million to $1 billion.[6] That number assumes that there would not be a centralized training system for all educators, at a central location, like we have for our airline pilots (discussed more below). It also assumes that all of these educators would need to be trained from a starting point of zero, something that is unlikely and also discussed below. However, assuming the cost estimates are true, as outlined below, training and arming educators is still a significantly cheaper and more practical option to stop (not necessarily prevent) school shootings than airport style security screening.

The Numbers:

In 2018 there are 3,160,000 public school teachers in primary and secondary schools, and 1.5 million college professors, resulting in an estimated 4.7 million educators at public institutions.[7] This number does not include any support staff, administration and other employees of these institutions, which would likely triple or quadruple that number. One can logically assume that educator pool of 4.7 million is comprised of a very diverse group of individuals, with a wide array of backgrounds and skills. One thing all of them have in common, however, is a disproportionally clean criminal background.[8] It is impossible to accurately estimate how many of these individuals would be of the nature qualified, and willing, to carry a firearm safely and efficiently. We can assume many of those with past military and law enforcement experience would have sufficiently demonstrated that capability. The number of former military and law enforcement working in education is not tracked, but it is safe to assume a not-insignificant number of them work in education (some studies show a fourfold increase in vets working in education in recent years).[9] In addition to military and law enforcement, of course, you also have a large demographic of educators who possess significant skills and training in firearms, but have never been in the military or law enforcement. I, for example, have been a firearm instructor for over a decade, and an armed security guard instructor, and have either taught or been a student in well over 3,000 hours of formal firearm training courses. To put that into perspective, it takes roughly 700 hours of training to become a police officer.[10] I have had hundreds of current and former police officers come to my courses to further their training (which is admirable and humbling). I do not classify myself as a tactical expert, and certainly not a “gun fighter”, but my training and sound skill set with a firearm is not something that can be easily disregarded. None of the other college professors in my department know of my background, and my situation can be logically extended to a large number of other individuals working in education. Given that, it is difficult to estimate the total number of educators who might possess the skills and training necessary to act as sentries at our schools. To assume there are not a significant number of them, however, is irrational.

The Airline Pilot Analogy:

NBC News recently published a piece on President Trump’s proposal to arm teachers. The report was entirely devoid of contrasting opinions, and featured the following commentary by Dr. David Hemenway, a professor of health policy at Harvard School of Public Health:

“It’s a crazy proposal.” Chuckling, he added, “So what should we do about reducing airline hijacking? Give all the passengers guns as they walk on?” (source)

What the apparently blissfully amused Dr. Hemenway fails to identify, however, is that we did almost that exact thing after 9-11, and we haven’t had a hijacking since. No, we didn’t “[g]ive all the passengers guns”, instead we instituted a volunteer training program for our pilots and created a pathway for them to carry firearms on planes so long as they demonstrated sufficient skill and safety, as well as passed the amplified background checks.

Throughout most of American history Airline pilots have always been allowed to carry firearms on planes, except for a brief period between 1988-2002, during which time security of airports became more centralized and firearm regulations on planes more rigorous and, related or not to this policy, the 9-11 attack occurred. In 2002, in response to 9-11, Congress reauthorized (formally this time) pilots to carry firearms and allocated up to 900 million to train up to 85,000 volunteer airline pilots at a facility in Artesia, New Mexico (roughly $10,500 per pilot).[11] To date, roughly 13,800 pilots are estimated to have completed the six-day training and are currently carrying firearms. That is roughly 10% of the overall pilot population. It is notable that airline pilots are required to travel to the training at their own cost, and take the time off work without pay (foregoing upwards of $2,000 in pay).[12] This willingness to make this sacrifice represents an unanticipated desire by pilots to provide for their own safety, as well as that of the passengers.

It is not difficult, even for the most biased mind, to draw an analogy between our teachers and our pilots. Both are put in charge of groups of people (ranging in number from 30-200) for a number of hours each day. Both are subject to pre-hire background checks and must demonstrate a sound psychological mindset. Both are charged with dealing with unruly individuals in their sphere, and both are given broad discretion on how to deal with high stress situations. Pilots are the metaphorical teachers of the sky. No, it is not an exact analogy, but it is not far off. By all accounts the armed airline pilot program has been a success. No, a pilot has not had to use their weapon to stop a hijacker yet, but that is precisely the point. Avoiding and deterring a violent attack is the best way to defeat an attacker. Knowing this, why could the process used to train airline pilots not be adapted, expanded, and rolled out to our educators? It has certainly worked flawlessly in Utah schools.

The Utah Case Study:

Many engaged in this debate would be surprised to learn that we have at least 14 years (and as many as 26 years) of empirical data we can study to find out what would happen if educators were allowed to possess guns in schools. During its 2004 General Session, the Utah Legislature passed Utah Code section 63–98–102, a statute prohibiting state and local entities from enacting or enforcing any ordinance, regulation, rule, or policy that in “any way inhibits or restricts the possession or use of firearms on either public or private property.”[13] This law change explicitly prohibited public schools from preventing anyone with a Utah concealed firearm permit from carrying a firearm, in any manner, onto any public school property (kindergarten through college). Since that time thousands of educators, staff and even legal-age college students have carried their firearms onto Utah schools daily. At least 253,404 people in Utah have concealed firearm permits (or roughly 11% of the adult population).[14] There are 175,000 college students in Utah, and another 60,000 college faculty and staff, resulting in roughly 235,000 adults on Utah public college campuses each day.[15] Carrying those numbers forward, and recognizing this is not an exact calculation, it is logical to assume as many as 23,000 people on Utah college campuses are licensed to carry firearms every day. That is not an insignificant number, and it says nothing for the number of faculty and staff carrying in Utah elementary and secondary schools. Despite that very high number, and knowing this has been the case for at least 14 years, Utah college campuses have seen zero shootings in that time period. Wow! How can this possibly be ignored? In a national debate where this exact topic is being discussed, how can anyone with intellectual integrity disregard 14 years of empirical data on the exact subject they are debating? If cognitive bias were a band of gorillas, ignoring this is King Kong beating his chest on top of the Empire State Building.

The doomsday projections of what would happen if we allowed educators (and even college students) to carry firearms must, if they are to be intellectually honest, acknowledge that they have come to fruition not once in Utah during the past 14 years of real-world experimentation. Like Utah, several other states including Colorado (and more recently Texas) have seen similar non-doomsday results of allowing firearms on school campuses.

That’s not to say Utah has not had a mass shooting, it’s just the shooter selected a small mall, and not a school, for his target. The reason why the shooter made this decision, however, is worth discussing. On February 12, 2007, a lone terrorist entered Trolley Square Mall with a pump action shotgun and a .38 special revolver (two firearms that do not fit the traditional gun-control narrative). After killing five victims the shooter was engaged by an off-duty police officer in plain clothes named Ken Hammond. Ken exchanged gunfire with the shooter, not striking him, but drawing his attention away to give others the chance to retreat. The total duration of the shooting lasted 6 minutes. It is key to this discussion, however, to note that the University of Utah is less than 3 miles from Trolley Square Mall. I was one of the 32,000 students attending the University of Utah that day, it was a Monday. Trolley Square Mall is a very small mall, comparative to other malls in Salt Lake. Why would the shooter not have chosen the University of Utah campus or the much larger Gateway Mall for his target? We will never know his true motive, but it is worth noting that unlike the University of Utah and the larger malls in the area, Trolley Square Mall had a large sign posted at each entrance prohibiting firearms on the property (click here to see the sign). A news broadcast that night featured a witness who stated something to the effect, “I saw the shooter. I looked for something to throw at him, but all I could find was a stool.” It could very well be mere chance that the shooter happened to choose the one high traffic location in Salt Lake City where firearms were overtly prohibited without any security, but it could also be very much correlated.

Call to Action: The following steps should be implemented immediately:

  1. Perform a professional security assessment of American schools. Determine which schools would be good candidates for magnetometer searches and security screenings.
  2. Establish magnetometers and security screenings at schools where the logistics of the buildings allow doing so.
  3. Immediately establish a robust training and mental health screening process to certify educators and staff to carry firearms on school campuses where magnetometers are not an option, in a similar way airline pilots are currently trained.
  4. Implement any and all other reasonably calculated societal changes needed to curb the mental health crises and make our children safer, so long as those changes respect the inalienable fundamental rights of the citizens.

 

Conclusion: Based on the foregoing, allowing a small demographic of trained and voluntary participants to carry firearms during the regular course of employment is the most cost-effective and practical solution to respond to an active school shooting.


Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can be downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com


[1] http://www.worldcat.org/title/autobiographical-notes/oclc/4940678&referer=brief_results

[2] D.C. v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2791–92, 171 L. Ed. 2d 637 (2008)

[3] https://politicalscience.osu.edu/faculty/jmueller/JATMfin.pdf

[4] http://abcnews.go.com/US/tsa-director-reassigned-wake-security-failures/story?id=31458476

[5] https://nces.ed.gov/fastfacts/display.asp?id=84

[6] https://www.washingtonpost.com/news/politics/wp/2018/02/22/the-economics-of-arming-americas-schools/?utm_term=.796b027fb8c7

[7] https://www.statista.com/statistics/185012/number-of-teachers-in-elementary-and-secondary-schools-since-1955/

[8] https://www.usatoday.com/story/news/2016/02/14/how-we-graded-states-teacher-background-checks/80214540/

[9] https://www.usatoday.com/story/news/nation/2013/01/02/soldier-teachers/1804537/

[10] https://www.cnn.com/2016/09/28/us/jobs-training-police-trnd/index.html

[11] https://www.washingtonpost.com/archive/politics/2007/02/25/more-airline-pilots-training-to-carry-a-gun-and-badge/521c4ebf-22d7-48a7-84d7-e73a98bb865a/?utm_term=.8d6d6c0cf834

[12] https://www.washingtontimes.com/news/2015/aug/2/tracy-price-arm-pilots-to-restoring-safety-in-airl/

[13] Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 1, 144 P.3d 1109, 1111

[14] https://bci.utah.gov/wp-content/uploads/sites/15/2018/01/2017Q4.pdf

[15] https://higheredutah.org/enrollment-at-utahs-public-colleges-universities-increases-by-over-4000/

 

 

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Synopsis: How Much Harm Guns Cause Cannot Serve To Restrict The Right To Keep & Bear Arms. Constitutional Rights Are Not Analyzed On A Risk/Utility Basis. From A Legal Perspective, The Amount Of Societal Harm That Comes From The Exercise Of A Constitutional Right Does Not Matter, And That Is A Very Good Thing.

Related Gun Control Argument: “Guns cause too much harm, people have a right to feel safe. Your right to carry a gun isn’t worth all the harm it causes. We need to institute [insert gun-control measure being advocated, such as more background checks, training, fees, etc.] to prevent these bad things from happening.”

Argument in Support of Synopsis:

The right to keep (which is own) a firearm is a fundamental constitutional right under the US Constitution. Further, the right to bear (which is carry) a firearm is a fundamental constitutional right under the state constitutions of dozens of states. A “fundamental right” is a right, generally found in the Bill of Rights, that is “fundamental to our scheme of ordered liberty,”[1] or “deeply rooted in this Nation’s history and tradition.”[2] Other fundamental rights include the right to due process, right to freedom of speech, freedom of religion, right to privacy, right to marry (and procreate), right to interstate travel, etc. All fundamental rights are equal in the law, no single right takes priority over another.

The United States Supreme Court has ruled that the types of weapons Americans have a fundamental right to own are “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”[3] The argument that certain firearms should not be protected because the founders didn’t envision them at the time the constitution was written will be the subject of a future article, but suffice it to say that argument is severely flawed. The US Supreme Court has responded to that argument as follows:

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,  and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”[4]

A common theme amongst those seeking further gun-control is to point to the amount of harm that results from a particular incident involving firearms (such as a mass shooting) and use that harm as evidence that gun-rights need to be further regulated. However, the US Supreme Court has squarely addressed this argument, and emphatically rejected it:

“[Gun control advocates] maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.  [Gun control advocates] cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”[5] (emphasis added).

If we are going to limit constitutional rights based on the potential societal harm they may cause, then logic dictates we should prioritize them in order of harm. Consider for a moment if the same justification put forth in favor of gun control (that the right must be restrained until harm is ameliorated) were to be applied equally among all fundamental constitutional rights. Consider the harm caused by the below constitutionally protected rights. Read them. Think about the comparisons. Then ask yourself if you truly feel constitutional rights should be judged the way you are proposing.

  • Use of The Internet: The use of the Internet is generally protected under the First Amendment to the US Constitution. There are an estimated 1.5-million cyber crimes committed each year in America, costing Americans a staggering annual total of over $18,000,000,000 in credit card fraud alone.[6] Tens of thousands of child sex crimes, and the distribution of millions of images of child pornography, occur online each year in this country. When discussing the harm the internet causes, the US Department of Justice said the following, “[t]he expansion of the Internet and advanced digital technology lies parallel to the explosion of the child pornography market. Child pornography images are readily available through virtually every Internet technology, including social networking websites, file-sharing sites, photo-sharing sites, gaming devices, and even mobile apps.” [7] Ask yourself what you use the internet to accomplish each day (checking social media, checking bank account balances, sending emails), and then ask yourself if your right to do those things is worth the millions of crimes, including the sexual exploitation of thousands of minors, that occur on the internet each day/month/year? Not to mention the Internet is the primary medium of communication for criminal and terrorist groups.

To draw an analogy, gun owners in Illinois must complete a 16-hour training course, submit to a background check, register with the state, and pay hundreds of dollars for the right to bear arms. Shall we begin requiring similar 16-hour Internet safety courses, costing hundreds of dollars, criminal background checks and require registration of individuals who are using the Internet? Shall we institute “internet free times/zones” in places where Internet crimes are most likely to occur (for example, after 10pm, or inside of bedrooms), making it prohibited by law to go online in those areas/times? You may respond, “of course not, I am not engaged in illegal conduct on the internet so why would my rights be restricted because of the actions of a malfeasant minority of internet users?” If you responded that way you would be correct in your logic, and now you are beginning to understand the perspective of gun owners.

To draw another internet analogy. One may ask why you need high-speed internet? It can logically be assumed a 56k (or even 19.2k) modem would provide normal civilians with sufficient internet access to accomplish their daily tasks. Higher speed (more dangerous) internet access should be limited only to government and military applications. It is irrefutable that high-speed internet is the internet speed of choice for cyber criminals and pedophiles. Why not restrict access to these more dangerous internet speeds to people who need it? This is the logic used for banning high capacity magazines and other “assault” style weapons, why not use it in this context as well?

  • Right to Due Process: The US Supreme Court has continually upheld due process rights, which include the Fifth and Sixth Amendment rights to a fair and speedy trial, as well as the right to have certain evidence excluded at trial. These rights supersede any and all harm they may cause. “The exclusionary rule generates ‘substantial social costs,’ which sometimes include setting the guilty free and the dangerous at large.”[8] During Miranda – the case that gave rise to the Miranda Warning – the court upheld the requirement that officers inform civilians of their rights even though, “[i]n some unknown number of cases … it will return a killer, a rapist or other criminal to the streets … to repeat his crime.”[9] When I was a prosecutor I saw this first hand. Criminals are set free daily, many of which have committed, and often confessed to, serious crimes. All because a filing deadline was missed, evidence was excluded, or testimony was not properly obtained. Despite all this harm, however, due process rights persist. Shall we reevaluate them?
  • Right to Privacy: The right to be left alone, as it has been called, is one of the most universally accepted rights we have. The people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The government cannot enter your home without a warrant, monitor your activities, and so on without a warrant. The government can’t even prosecute you for crimes, including murder, they can clearly prove you committed in your home if they obtain the evidence in contravention to your Fourth Amendment rights. Consider, however, the amount of bad things that happen behind closed doors in America. Domestic violence, sexual abuse, child abuse, neglect, drugs, murder. The vast majority of these crimes do not occur in public, they occur in private. Why then, using the gun control logic, do we not institute 24 hour monitoring of private places? Imagine a government issued Amazon Alexa style speaker that monitors your daily conversations, alerts when signs of abuse or illegal activities are heard, and then summons the police to come to your home. Is your right to privacy in your home more important than the millions of serious crimes that occur in homes each year? Yes, of course it is, but if you are allowing yourself to actually think about this analogy you are now better understanding the flaws in the logic used to restrict firearms.
  • Right to Marry/Procreate: Finally, for the last example, I will mention the most dangerous and harmful right Americans have, the right to make children. Although not explicitly contained anywhere in the constitution, the right to marry and have children is accepted as one of the most fundamental rights we have (with the right to marry being specifically ruled on recently by the Supreme Court). You do not need a permit to make babies. You do not need to demonstrate you are a responsible and capable parent to make babies. There is no limit on the number of babies you can make. There are no laws requiring you to be sober when making babies. There are no tests, trainings, or other qualifications to be eligible to make babies. There are also no restrictions on what you can teach your babies. I could conceivably make 150 children, teach them all to be terrible, violent, racist, sexist and otherwise awful people, and as long as I keep them moderately fed and clothed, the government will not take them from me. Consider, however, the amount of societal harm that comes from bad parents and irresponsible procreation. I will proffer that there is no act that results in more harm to society than irresponsible procreation. However, despite all of that, there are relatively no restrictions on this activity. Two drug addicted 12-year olds can make babies in this country. Why? Why do we not mandate required parenting classes, drug tests, financial disclosures, procreation permits, home inspections, etc.? Why don’t we put people in jail who make babies without having the proper permits, training, insurance and government issued license? Adoption requires many of these things, but procreation requires none. Why? The reason should be obvious by now. Even though the right to procreate has infinite potential societal harm, it is a fundamental right nonetheless and is not subject to indiscriminate restriction simply because of the potential harm it may cause.

Those still not convinced by this logic will rebut by saying something along the lines of, “but when was the last time any of those rights resulted in [insert number] of children being killed?” That question, of course, is short sighted and ignores the fact that restricting any number of constitutional rights could prevent mass shootings. If we disregard due process and the First Amendment we could put people in jail the moment they post a threat on the Internet (the way the recent Florida shooter did), thus preventing many of these tragedies. If government cameras monitored inside a shooter’s home, maybe they would have caught them plotting. If a warrant wasn’t required police officers could simply enter someone’s home and search their home/computer any time they receive a tip that someone might be dangerous (like the FBI received a tip for the Florida shooter).

The reality is those seeking more gun control aren’t bad people, and they aren’t unintelligent. However, as demonstrated by this article, this logic being used to promote further restrictions on the fundamental right to keep and bear arms is flawed. It cannot be accepted or promulgated.

Gun control advocates want to protect children. Pro-gun advocates likewise want to protect children. Let us put aside our cognitive bias and look at things as they truly are. People are all dramatically different and similar at the same time. Psychologists have soundly demonstrated human beings can look at the same thing, and see very different things, often even missing something that should be completely obvious to anyone. Einstein, while pondering why people think the way they do, noted that people find difficulty understanding simple concepts “when an experience comes into conflict with a world of concepts already sufficiently fixed within us.” [10] It is time to put aside that world of concepts and accept truth for what it is.

I am not making an argument, in this article, that guns make America safer (that argument will be addressed at another time). Instead, I am simply stating that it does not matter if guns make us safer, or less safe, in the eyes of the Constitution. Of course it matters from a perspective of compassion, humanity and emotion, but Constitutional rights are not evaluated subjectively and do not care about the compassion or emotion of those who exercise them. They exist independent of the harm they cause and they persist in their course even if they harm us all. That is the nature of fundamental rights, and until we all understand that simple principle, we cannot have any degree of productive discourse.


Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can be downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com


[1] Duncan, 391 U.S., at 149, 88 S.Ct. 1444

[2] McDonald v. City of Chicago, Ill., 561 U.S. 742, 767, 130 S. Ct. 3020, 3036, 177 L. Ed. 2d 894 (2010)

[3] D.C. v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2791–92, 171 L. Ed. 2d 637 (2008)

[4] D.C. v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2791–92, 171 L. Ed. 2d 637 (2008)

[5] Id.

[6] http://www.cbs.com/shows/csi-cyber/news/1003888/these-cybercrime-statistics-will-make-you-think-twice-about-your-password-where-s-the-csi-cyber-team-when-you-need-them-/

[7] https://www.justice.gov/criminal-ceos/child-pornography

[8] Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)

[9] Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

[10] http://www.worldcat.org/title/autobiographical-notes/oclc/4940678&referer=brief_results

Have you heard there is new federal legislation that will allow someone with a concealed carry permit from one state to carry in all 50 states? It actually might not be as awesome as you have heard. The purpose of this article is to dispel some of the myths associated with this proposed legislation and give an update on its status.

What is the Law & What is the Status?

H.R. 38: Concealed Carry Reciprocity Act of 2017 is a new iteration of a law that has been proposed several times over the past 6 years. In its most recent form it was introduced on January 03,

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2017 by U.S. Representative Richard Hudson (NC-08). The NRA and other gun rights organizations have been outspoken in their support of this legislation. This week (December 6th) it was voted on by the US House of Representatives and passed by a 231/198 margin. Although it has cleared the House it still has many steps to clear before it becomes law. A brief summary of the remaining procedural process is below:

  1. It will go to a Senate subcommittee to approve their version of the legislation; then
  2. It will be scheduled for a floor vote in the Senate, with the potential for a filibuster; then
  3. It would go to a joint conference committee and the two bills (House & Senate) would be “reconciled” by the committee; then
  4. The reconciled bill will need to be voted on again by both the House and Senate.  Many bills die at this stage as the two separate pieces of legislation from the two houses are often so different that they cannot be reconciled; then
  5. For the final step it goes to President Trump’s desk, who has indicated he would sign similar laws in the past.
The house version has combined two separate bills, one on national reciprocity and the FIX NICS bill.  The FIX NICS bill has widespread support among Democrats, whereas the  Concealed Carry Reciprocity Act has significantly less.

Largely due to the social media buzz surrounding it, many people in our training classes are misinformed on many aspects of this potential law (many people we speak with believe it is already a law, which is dangerous). We have received hundreds of emails and phone calls from past students asking about the “new law” and the amount of misinformation we’ve heard is alarming to us. There are some legitimate misunderstandings out there about the Concealed Carry Reciprocity Act, and we want to help clarify a few important points.

What Will the Law Do? 

Many people we speak with believe this legislation would make it so one permit would be valid in all 50 states, like a driver’s license. In fact Congressman Hudson’s own website says the following regarding the law:

“Your driver’s license works in every state, so why doesn’t your concealed carry permit?”(source)

That is absolutely not what this law will do, however, and it is important to understand what the law actually says.

The Concealed Carry Reciprocity Act of 2017 is intended to “amend title 18, United States Code, to provide a means by which non- residents of a State whose residents may carry concealed firearms may also do so in the State.”

Subsection (a) states that

a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) … in any State

AWESOME RIGHT?!? As long as I have a photo ID & concealed permit (or am from a constitutional carry state) then I’ll be able to carry in any state, what’s wrong with that???

The problem is the text of the proposed law doesn’t stop at that point. If it did, I would agree it would be a great law. Instead it goes on to create two very distinct problems.

What Are The Problems With The Law?

Problem #1: A permit holder would only be able to carry in a state that, “has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms” OR “does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.”

  • The problem with the above text is that  it provides a strong incentive for restrictive states (like Maryland, New Jersey, Hawaii, New York & California) to prohibit concealed carry altogether. Think about it, when faced with the following two choices, do you think that New Jersey and California (who are historically very restrictive in issuing concealed permits) are going to (1) open the floodgates to every freedom loving American to carry a gun, OR  (2) simply prohibit concealed carry altogether, thus exempting themselves from the National Concealed Carry Reciprocity Act. If this law passes, reasonable minds could agree we would see at least the following states take steps to completely prohibit concealed carry: California, New Jersey, New York, Maryland, Hawaii, Delaware, Massachusetts, and Connecticut. In sum, we would see a regression in the amount of states that allow concealed carry. Naturally residents of those states could then take their case to the courts and hopefully we would see the state and federal courts rule favorably in some of those jurisdictions, but sadly as we’ve seen over the past few years, that is far from a sure bet.

Problem #2: “This [law] shall not be construed to supersede or limit the laws of any State that—(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.”

  • What this means is that those middle-of-the-road states (like Oregon, Washington, Illinois and South Carolina) which likely won’t decide to eliminate concealed carry altogether, but also don’t necessarily want millions of visitors carrying guns in their state, will likely make it SUBSTANTIALLY more difficult to carry a gun in their state. States like Oregon and Illinois (among others) have historically been very opposed to granting non-resident carry rights within their state. Instead of suddenly opening the doors for everyone to carry, we will likely see state legislatures tightening the areas within the state where you are allowed to carry through increased prohibited areas. Advancements that took years to accomplish could potentially vanish overnight due to an overly paranoid media frenzy.

Would Any State Permit Work, or Would I Need My Home State Permit? 

There has been a fair amount of debate about this question. When discussing what permits would allows someone to carry in all states, the law say that a person must have a, “permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides.”

This wording is more complicated than it first appears. What this means is that your home state permit will always satisfy this requirement, as it entitles you to “carry a concealed firearm in the state in which [you] reside.” Many people who live in restrictive states, like Maryland or New Jersey, have been asking if they can get an easier to obtain out of state permit (such as Utah or Virginia) and still be able to carry in all states. The answer, under the currently worded law, is maybe. Unless the permit you have allows you to carry in your home state, or your state has constitutional carry, the wording of the current law is somewhat awkward regarding non-resident permits. It appears their intent was to allow you to obtain a permit from any state, but if that is the case the language of the law should be updated to unambiguously state that.

In Summary:

There are some positives to this law. I like that concealed carry is being discussed on a national stage and I am glad it is making people more cognizant of the very complicated patchwork of gun laws we have in America. I also like that the law does away with the crazy patchwork of laws regulating magazine capacity (it allows “any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine”), and it explicitly allows for carry on certain federal land (such as National Parks and Army Corp of Engineers property).

However, I think this legislation is badly in need of refinement if it is to accomplish what we all want it to accomplish. To me, a much better option would be to pursue a judicial remedy for the right to bear arms much like the NRA and the SAF achieved for the right to keep arms (click here for a summary of the difference). However, if we are going to attack this issue through legislation it needs to be done properly. As most are aware, Legal Heat is the largest provider of concealed carry training in America, having certified over 150,000 people to obtain concealed carry permits. We are also the publishers of a 50 state gun law book & app that is used by hundreds of thousands of gun owners to navigate gun laws in all 50 states. The attorneys at Legal Heat have also worked on several pieces of concealed carry legislation and would be more than happy to act in an advisory role for Congressman Hudson or anyone else involved in this legislation. We want this law to pass, we just want it to be amended slightly before passing.

For the first time in our history the question before us now is not IF we can pass nationwide reciprocity legislation, but instead HOW such a law should be strategically handled. We are in an exciting time for American gun rights. Legal Heat is very excited about the potential to see quick and decisive progress in the fight for the individual right to keep and bear arms. We will continue to stand on the front lines of this issue by training tens of thousands of Americans each year. If you are interested in attending a training class click here to find a course in your area. 

For updates on this proposed legislation and any other gun related issues please follow us on Facebook.

Knowledge is power. Make sure to share this article. 


Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm and exclusive national CCW training provider to Cabela’s.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can be downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

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Senseless tragedies like the recent incident in Las Vegas are horrifying in their very nature. The team at Legal Heat wants to convey our deepest sympathies to all parties affected. We hope for a speedy recovery for the wounded and strength for the families of the fallen in this time of mourning.

We at Legal Heat are fortunate to have a cadre of professional firearms instructors that include many talented individuals.  Several of our instructors have experience and skills acquired through service in law enforcement, and the military, that give them a unique perspective on how to respond to some of life’s most difficult circumstances.

We asked Legal Heat Instructor Larry McVay about his perspective on what “civilians” can do to prepare themselves, their friends and their families should they find themselves in an active shooter situation, like the recent tragedy in Las Vegas.

Larry is a freshly retired FBI special agent who has deep expertise leading FBI SWAT teams as well as training SWAT teams all over the country to respond to Active Shooter incidents. In addition to the aforementioned credentials, Larry also completed the rigorous operator selection program for the FBI’s national tactical counter-terrorism team serving on the Hostage Rescue Team (HRT) as a tactical helicopter pilot. Larry has served overseas, both in the US Army  (Airborne, Air Assault, Pathfinder, Ranger) as well as managing close security and executive protection operations for the U.S. Attorney General (AG). Larry was responsible for the AG’s travel security locally, nationally and globally, to include forty different countries and two combat theaters.

Given Larry’s unique qualifications, we wanted to know how he thought someone might best prepare should the unthinkable happen. Please understand this is not meant to critique, or armchair quarterback, any of the victims of the tragic events in Las Vegas. Our intent is simply to learn what we can from past tragedies, so that we can help avoid similar tragedies in the future.

Retired FBI Special Agent Larry McVay’s thoughts on Las Vegas/Active Shooter Incident, 10/01/2017:

VENUE:

Too often people will “turn off” mentally when going out into the public for a music concert, sporting event, church or even something as innocuous as an amusement park.  For the “legally armed citizen” this should never happen, even if going to a venue that does not allow for concealed carry of a firearm.

Terrorists as well as active shooters/murderers are naturally drawn to venues that have a large gathering of people in a congested and confined area.  Many of these types of venues will have erected barriers to contain the population/audience that in turn also hamper first responders attempting to get into the venue to stop the killing and prevent the dying.

MENTAL PREPERATION and SITUATIONAL AWARENESS:

One of the biggest problems that people encounter, particularly those untrained or “unseasoned” individuals is recognizing an active shooter event in progress.  The sensors of the body may become aware of something not right, but the mind will try and categorize the inputs as something that is familiar.  In the recent Las Vegas shooting, many people in the kill zone wanted to believe the gunshots they were hearing were only the sounds of fireworks.  It could also be that many people just simply did not hear the gunshots because of the volume of sound coming from the performers on stage and the crowd’s response to the music.  In any event, at the first inkling of “something’s not right” phase, it is imperative that people do at least the following three things: Recognize, Believe and React.

1)    Recognize the sound of gunfire for what it is.  Do not try and convince yourself otherwise or “justify” the sound away.  Most   people live in denial when confronted with a life or death situation.  Don’t be that person.

2)    Once recognized, the mind must immediately believe and accept the danger that comes with gunfire.  The time for deliberation is over and should be minimized through deeds.

3)    React!  Take immediate, preplanned (but not panicked) action.  “Be decisively deliberate!”

PHYSICAL PREPARATION:

It is paramount to anyone wanting to prepare for this type of tragic event to know where the closest exits are located at any given venue.  Give yourself multiple options by finding several different exits and filing them away in your mind.  This goes for any venue you may find yourself in – restaurant, shopping mall, bar, stadium, etc…  Keep in mind that almost everyone will remember the main entrance to a venue. After all, they just came through it. Most will instinctively want to run for that entrance because of its familiarity and known location.  Resist that temptation and opt for an alternate exit that you have previously scouted. If possible, keep obstacles between yourself and the herd.  Aside from an active shooter, one of the biggest dangers in a crowd is the crowd itself.  The herd mentality of a panicked crowd can be as dangerous as an active shooter or a fire emergency.  Know the difference between cover and concealment and, if possible, use either to assist your movement to an exit. Cover is a substantial object that will stop a projectile and hide your presence. A brick wall provides cover.  Concealment is an object that obscures you from view, but will not stop a projectile. A tent, or a bush provide concealment, but not cover.

If the option presents for choosing a location within a venue, choose to be near an exit or preferably, two or more exits thus opening up more options for escape.  While it is true that an active shooter can use an exit to gain entry, time and time again it is shown that active shooters generally walk right through the front door.

Choose designated meeting places for both inside and outside of a venue for your group in case of separation during an emergency.  This will help with accountability post-incident and can speed up the process of getting away from the threat.  The last thing someone should be thinking about is going back into a kill zone to attempt to locate a lost child or spouse.

If armed, avoid the temptation to “go hunting” for an armed shooter.  Remember, as a civilian, your role should be to take care of family and yourself.  If you can assist others along the way while escaping, do so.

Lastly, it should be obvious that while everyone enjoys a good time at a concert or other entertainment venue, limit the intake of alcohol such that you don’t reduce your capacity to respond appropriately during an emergency.

GEAR PREPARATION:

Some items for consideration to help you survive during an active shooter event in any type of venue are:

1)    A small but powerful flashlight – better yet, have multiples of the same spread out through your group.

2)    A small individual first aid kit (IFAK) containing the bare essentials for traumatic wounds.  A tourniquet and a pressure dressing bandage will go a long way towards saving a life and they can take up very little space.  Another consideration to have along is a gauze roll and perhaps some quick clotting material. Keep in mind that overall, this is a very small package that can easily be tossed into a purse, back pocket, or even some purpose built holsters that one can wear at one’s ankle.  Anyone rocking a CCW (even if they are not allowed to carry their firearm at a venue) should maintain such an IFAK.  If you are justified and responsible enough to make holes in someone to stop the killing, you should be equally responsible enough to plug holes as well to stop the dying.  Have additional first aid equipment in your vehicle. The most important “accessory” to have along, medically speaking, is the training to go with those medical supplies.

3)    It’s a great idea to go into any venue with a fully charged cell phone and extra sets of vehicle keys for each adult in the vehicle.  If there is the possibility of escape, instinct will draw you to your vehicle as a means of escape.  Have keys.  Better yet, have multiple keys.  If someone in your group sustained an injury and you can evacuate them quickly, do so.  Don’t wait for EMS as they may be overwhelmed by a mass casualty event.

4)    Know where the nearest hospitals with a Level 1 or Level 2 emergency room are located.  Pre-program them into your GPS and have a good idea of the general direction they are in from the venue site.  As a back up to your GPS, it is also wise to have a city map when in an unfamiliar territory with the venue site and nearby hospitals located and identified on the map.  This is an especially good idea if you happen to be attending a venue that is located outside your normal stomping grounds.

All of these preparations are not time consuming nor are all these that are listed meant to be all encompassing.  Most of this planning is normal, or should be normal, in everyday life.  The bottom line is that any plan is better than no plan. Once you put a plan in place, it is easy to modify your existing plan to a new venue.

Stay Legal. Stay Safe!

 

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

The Question:

Imagine you are walking down the street late at night when suddenly a criminal violently attacks you with a knife. Fearing for your life you draw your weapon and fire 3 quick shots, stopping the threat and saving your life. Once the threat is neutralized, however, you realize one of your shots missed your intended target and struck an innocent bystander in the leg, causing him severe harm. Assuming you are otherwise justified in defending yourself, can the innocent bystander sue you? Will you lose that lawsuit? CRAZY-JUDGE-psd42104

The Answer:

No. The lawsuit against you will be dismissed and will need to be brought against the attacker with the knife. You are free from liability under the doctrine of transferred intent.

The Background:

I have spent the last ten years teaching and training concealed permit instructors in nearly 30 different states. Our company has certified roughly 150,000 people to obtain concealed permits at this point. During the past decade I have had the privilege to sit through hundreds of very well taught courses, and a few very poorly taught courses. There are, however, some unsubstantiated (untrue) myths that seem to be virtually ubiquitous among concealed carry courses. Today I hope to dispel one such myth.

A course I recently sat through prompted me to write this article. While teaching the self-defense section of the course the instructor said:

Understand that if you pull the trigger on your gun you are liable for every bullet. If one round passes through or misses and hits an innocent bystander, or 5,  you can, and will be sued. You will be paying those bystanders for the rest of your life.

Please don’t misinterpret my intent in this article. Obviously the four basic gun safety rules should always apply and you should always know your target and what is beyond. This instructor, however, was incorrect in stating the shooter will be held civilly liable if he strikes an innocent bystander during an otherwise justified shoot, and it is important to understand why.

The simple reason is that the shooter (self-defense actor) was not the proximate cause of the harm to the innocent bystander. Although that may seem counter intuitive to say (given he was the one who actually fired the gun), it was in fact the attacker with the knife who caused the bystander harm.

In the legal world this is called the doctrine of transferred intent. It has been recited in numerous cases (see State v. Green, 157 W. Va. 1031, 1034, 206 S.E.2d 923, 926 (1974)) and is summarized by American Jurisprudence, Second Edition, as follows:

If the circumstances are such that they would excuse the killing of an assailant in self-defense, the emergency will be held to excuse the [victim] from culpability, if in attempting to defend himself he unintentionally kills or injures a third person… Although the assailant may have had no intention to harm the third person in the course of his or her defense, in order to escape culpability, the assailant must have been free from negligence and must have acted prudently and with due care.

40 Am. Jur. 2d Homicide § 143

Perhaps even more clear is the Restatement (Second) of Torts (think Bible of civil lawsuits), which provides the following example:

A points a pistol at B, threatening to shoot him. B attempts to shoot A, but his bullet goes astray and strikes C, an innocent bystander. B is not liable to C unless, taking into account the exigency in which A’s act placed B, B fired his self-defensive shot in a manner unnecessarily dangerous to C.

Restatement (Second) of Torts § 75 (1965)

It is obviously not our intent to encourage recklessness, or anything less than the utmost possible care when acting in self-defense. However, it is important to understand the legal principles that guide self-defense cases and dispel some of the commonly perpetuated myths. No one wants to hit an innocent bystander when acting in self-defense, but it happens.

At Legal Heat our goal is to train our students for any danger they may encounter, both in the real world and the courtroom. Properly understanding how theories of civil liability work is one part of that training.

___________________

Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

 

 

 

 

 

Effective May 9th, Utah will begin issuing “provisional” concealed firearm permits to anyone age 18-20 years old. The new law will require that those seeking a provisional permit complete the same training as the standard Utah permit, and will enable permit holders to carry a concealed (or open) firearm everywhere in Utah where a standard permit does, with the singular exception of K-12 schools.

Utah_border_signNon-Utah residents aged 18-20 may also obtain the Utah permit, however the rules for obtaining a non-resident provisional permit are not as straight forward.

First, if the non-resident lives in a state that honors (or reciprocates) with Utah’s provisional permit, they must first have their home state permit prior to applying for the new Utah provisional permit. This is no problem for anyone living in states like Montana or Maine (which also issue permits to 18 year olds), but creates a significant problem for those living in states where the minimum age to obtain a permit is 21.

Second, if the non-resident lives in a state that does not honor Utah’s provisional permit (like California or Illinois) then anyone age 18-20 years old may simply apply for Utah’s provisional permit once they have completed the mandatory training class (even without obtaining their home state permit first). Naturally, a non-Utah resident must verify they are complying with their home state’s laws prior to attempting to use the provisional permit to carry.

All provisional permits can be automatically converted to standard Utah permits when the permit holders turns 21, without any additional training.

This is a big win for college age students wishing to defend themselves, according to the law’s sponsor Rep. Karianne Lisonbee.

“A group of 18- to 20-year-old women brought this bill idea…They wanted to be able to defend themselves.”

Utah is not alone in issuing permits to 18 year olds, several states have been doing it for years. In fact, many 18 year olds, myself included, have taken advantage of the “Maine Loophole”, wherein they obtain a Maine non-resident permit as an 18 year old and use that permit to carry in their home state even though their home state does not issue permits to anyone under 21. This “loophole” only works, however, if your home state (Utah in my case) honors the Maine permit and does not have a law requiring you to have your home state permit or a minimum age requirement to carry. As Utah’s permit is one of the most popular in the nation, it can be assumed many 18 year olds will be signing up for training and sending off applications shortly.

For those looking for training, an 18 year old may take a training course any time after April 1, 2017 and may submit their application anytime after May 9, 2017. The cost to apply for Utah’s permit is $37 for Utah residents, and $47 for non-residents. The permit is valid for 5 years and requires a simple $15 renewal fee. Additionally, the state of Utah has published a FAQ page regarding the provisional permit you can review here.

Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat: 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

 

DISCLAIMER TO OUR LEO FRIENDS: This article is not meant to offend or insult anyone in law enforcement. It is meant to apprise the readers of their constitutional rights. Like all law enforcement, while in uniform you are an actor of the state. However, when you take off the uniform you are also a citizen fully equipped with all the same constitutional liberties as those you interact with on your job. As such, this information should be appreciated by you in your individual capacity, and hopefully respected by you when acting on behalf of the state. The readers of this article are mainly concealed firearm permit holders. Meaning, they are exceptionally law abiding citizens. It is not our intent to help criminals conceal firearms during traffic stops, we simply want to help the law abiding remain law abiding while navigating a very complicated spiderweb of firearm laws. 

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Let’s have a very blunt conversation about interacting with law enforcement while in possession of a firearm. This article is not meant to focus on when a police officer has a legal right to stop you, but instead is meant to cover the less analyzed issue of what are the legal implications of informing an officer that you are carrying a firearm? I am going to offer this article from a purely legal standpoint, the same way I would advise a client. There are obviously differing opinions on how you should handle a police stop. It is not my intent to address how you should, but instead to analyze what the legal implications are of certain conduct during a stop.

Let’s start at the beginning. Relating to police stops of concealed permit holders there are three categories of states, namely:

  • Duty to Inform States: States where you are required by law to affirmatively disclose the presence of your firearm (e.g. Ohio, Michigan, etc.).
  • Quasi Duty to Inform States: In these states you do not have to affirmatively inform the officer of the presence of your firearm, but state law requires you to still do something, such as respond if you are asked if you have a weapon, or provide your permit if it is requested of you. The range of requirements for these states varies significantly (e.g. Iowa, Texas, etc).
  • No Duty to Inform States: In these states you have no legal obligation to inform the officer if you are carrying and you generally have no legal obligation to respond if you are asked (e.g. Utah, Georgia, etc.).

This article is not meant to be a state by state summary, we sell a book and mobile phone app that contains that information and Concealed Nation also has a great article on that topic here. Instead, I want to walk you through what the legal implications are of disclosing the presence of your weapon to a police officer.

IMPLICATION NUMBER 1: WAIVING YOUR FOURTH AMENDMENT RIGHTS

A potential outcome of informing an officer that you have a firearm is that the officer might then have the ability to perform what is called a Terry Stop or a Terry Frisk. The Terry Doctrine stems from a 1968 Supreme Court case, Terry v. Ohio. In Terry, the United States Supreme Court held that an officer may perform a protective frisk and search pursuant to a lawful stop when the officer reasonably believes a person is “armed and presently dangerous to the officer or others.” (see: 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This also gives the officer authority to temporarily disarm the permit holder “in the interest of officer safety.” The Court did caution that a search “is a serious intrusion upon the sanctity of the person” and should not be taken lightly. Still, the basis for the search itself is largely left up to the officer’s discretion once he is made aware of the presence of a weapon.

The sole purpose for allowing the frisk/search is to protect the officer and other prospective victims by neutralizing potential weapons. (see: Michigan v. Long, 463 U.S. 1032, 1049 n. 14, 103 S.Ct. 3469). As an example, a Terry Stop allows a police officer to remove you from your vehicle, pat down all occupants of the vehicle (using the sense of touch to determine if they are armed), as well as search the entire passenger compartment of the vehicle including any locked containers that might reasonably house a weapon. In other words, telling a police officer you have a firearm on you or in your vehicle can serve as a waiver of your Fourth Amendment rights and allow the officer to conduct a warrantless search. 

This issue was recently highlighted in a recent 4th Circuit Court of Appeals case United States v. Robinson. In Robinson, the court extended the Terry Doctrine further than it previously had. In its ruling, the court stated that because firearms are “categorically dangerous

an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.” (source)

Or as Judge Wynn ominously wrote in his concurring opinion, “those who chose to carry firearms sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms.”

The waiver of your Fourth Amendment rights is why states with “duty to inform” laws create such a constitutional dilemma. If, as a condition to carrying a firearm, I am required by law to inform an officer that I have a firearm in my vehicle, then I am simultaneously required to waive my Fourth Amendment privacy rights. That is a violation of the unconstitutional-conditions doctrine and is long overdue for a legal challenge.

BUT PHIL, POLICE OFFICERS ONLY PUT CRIMINALS IN JAIL, AND I’M NOT A CRIMINAL!!! WHY WOULD I CARE IF I GET SEARCHED?!?

IMPLICATION NUMBER 2: YOU ARE A CRIMINAL, YOU JUST DON’T KNOW IT…YET

You are a criminal, we all are from time to time. Do you have any idea how many gun laws there are out there? No? Neither does our own department of justice. If you don’t even know how many gun laws there are, how can you possibly know you are abiding by all of them simultaneously? Justice Robert Jackson (U.S. Supreme Court Justice) once said, “any lawyer worth his salt will tell the suspect [his client], in no uncertain terms, to make no statement to the police, under [any] circumstances.” The reasoning behind Justice Jackson’s quote isn’t because police officers are bad, it is simply because the average civilian has no idea how many laws they may be breaking at any given time. As a prosecutor, and later a defense attorney, I deal with clients routinely that are charged with crimes they had no idea they were committing.

Here is a simple example of how the “I have nothing to hide” mentality can land you in jail. Let’s imagine you are a Utah resident and a Utah concealed permit holder. Your Utah permit is valid in well over 30 states so you decide to take a road trip with your firearm. As you’re driving through Idaho (where your permit is valid) you get pulled over for speeding in a school zone. Because you are an upstanding citizen and you have nothing to hide, you tell the officer that you have a firearm in the vehicle. Aaaaannd now you’re a felon. Wait, what?  How did that happen? Let’s review why you’re now a felon.

18 U.S.C.A. § 922(q)(2)(A), otherwise known as the Federal Gun-Free School Zones Act (GFSZA), states that:
It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

The term “school zone” means in, or on the grounds of, a public, parochial or private school; or within a distance of 1,000 feet from the grounds of a public, parochial or private school. The term “school” means a school which provides elementary or secondary education, as determined under State law (see 18 U.S.C.A. § 921).

There are a few narrow exceptions to this law, one of which is:

“if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;” 18 U.S.C.A. § 922 (emphasis added)

You have a permit from Utah which is valid in Idaho, but was not issued by Idaho, which means this federal law is in full force against you. See how fun that is? Don’t worry, the penalty for violating the law is only 5 years in prison and a $5,000 fine. If you would like more details about this law you can read the ATF’s analysis of it here.

Of course, as is often the case, the Idaho police officer may sympathize that you are not intending to violate the law and may choose not to escalate the situation beyond a mere traffic stop. Millions of people violate the GFSZA every year and few are prosecuted. Given the harsh penalty, however, it’s not a gamble I personally want to take.

IMPLICATION NUMBER 3: SEARCHES ARE ALMOST ALWAYS BAD.

I would challenge anyone reading this to think of any instance where someone waiving their rights, or consenting to a search/seizure, has made their life better. In my career I certainly haven’t seen it. I have, however, seen a significant amount of good people get charged with serious crimes because they were overly generous with the amount of information they shared with law enforcement. It is my experience that nothing good can come from waiving your rights. Consider the wording of the the oft cited Miranda warning:

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966) (emphasis added).

Can and will be used against you. The best case scenario of waiving your rights is you get to go home. The worst case scenario is you go to prison.

Once again, it is not our intent to tell you how you should interact with law enforcement or imply in any way that law enforcement are villains or out to get you. As a prosecutor I worked with law enforcement every day, and as a firearm instructor over the past decade I can say some of the best people I know are police officers. Police officers, by and large, support the shooting sports community and are members of it themselves. We strongly encourage everyone to treat law enforcement with respect. Very little is accomplished in life by acting belligerent, rude or demeaning.

Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com