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First Page

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Keywords

Second Amendment; Fourth Amendment; criminal procedure; police; public safety; individualRights; Terry; Bruen

Abstract

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, the U.S. Supreme Court first recognized that the Second Amendment protects an individual right to possess firearms. And more recently, in New York State Rifle & Pistol Ass’n v. Bruen, the Court substantially expanded the scope of that right.

Thus, the tension: the Fourth Amendment treats firearms as inherently dangerous, subject to regulation on the basis of such dangerousness alone. But Second Amendment doctrine now explicitly rejects that assumption, enshrining a right to possess firearms unless one of a few non-firearms-related risks is present. In this Essay, we argue that something has to give: either Second Amendment rights will have to give way to officer and public safety, or traditional Fourth Amendment doctrines protecting the police and public will fall to the expanding Second Amendment. We expect the Court to prioritize police discretion to protect themselves and the public. But, we argue, such police exceptionalism is doctrinally difficult to justify without also justifying a much broader range of gun regulations.

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