When it comes to deciding Second Amendment cases, there’s probably no appellate court more cognizant of the fundamental nature of the right to keep and bear arms than the Fifth Circuit Court of Appeals. Judges on the court have, among other things; ruled several ATF rules out of bounds, upheld the right of “unlawful” users of marijuana to possess firearms (so long as they’re not actively under the influence), and declared that adults under the age of 21 have a Second Amendment right to purchase handguns from firearm retailers.
Now the court has issued another common sense decision in favor of our right to keep and bear arms: police don’t have the authority to stop and search someone just because they were carrying a gun.
That ruling came from a three-judge panel in a case called U.S. v. Wilson. From the decision:
On March 16, 2022, federal agents stopped Damion Wilson pursuant to Terry v. Ohio, 392 U.S. 1 (1968). As he was approaching Wilson, Deputy U.S. Marshal Michael Atkins “noticed a bulge in [Wilson’s] waist area” that seemed like “a hard object.” ROA.252 (alteration in original). Based on his training, Deputy Atkins believed the object was a concealed firearm. Atkins and other federal agents then ordered Wilson to stop and put his hands up. Wilson complied. The agents asked Wilson if he was armed, and he replied that he was. The agents ordered Wilson to drop the backpack he was wearing, to turn around, and to place his hands behind his back. The agents handcuffed him. While Wilson was being cuffed, Deputy Atkins asked him if he had a concealed weapons permit. Wilson admitted that he did not.
The agents took the gun—which was loaded with an extended magazine—from Wilson.Deputy Atkins told Wilson that he was not under arrest and that agents wanted to talk to him about Wilson’s friend—a federal fugitive named Malik Fernandez. Wilson denied having seen or spoken to Fernandez in six years. However, on Wilson’s public Instagram account, officers found a photo of Wilson and Fernandez together that had been posted approximately four months earlier.Local police then arrested Wilson for carrying a firearm without a permit. Incident to that arrest, officers searched Wilson’s backpack and found marijuana. Officers then obtained a search warrant for Wilson’s apartment and found more marijuana, drug paraphernalia, and approximately$1,700.
Wilson ended up being charged by DOJ with several crimes, but he moved to suppress all physical evidence and statements stemming from his stop and arrest. While a district court judge rejected his argument, the Fifth Circuit found it more persuasive… though in the end their decision didn’t help his case. The key takeaway for gun owners, though, is this:
Undoubtedly, obtaining a driver’s license is more difficult than acquiring a concealed carry permit in a shall-issue State. Based solely on the observation that someone is driving a car, does an officer have reasonable suspicion that the driver is unlicensed?
Obviously, no: “[S]topping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment” without “articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered.” This was true even though driving, like carrying a firearm, is “subject to state regulation.”
… Put differently, officers cannot assume that citizens engaging in an activity subject to licensing are unlicensed. Without more facts, it is “[in]sufficiently probable that the observed conduct suggests unlawful activity.”
… If anything, the Constitution’s prohibition on presuming illegality should be stronger for gun owners than for car drivers. Unlike driving on public highways, which is a State-created and State-regulated privilege, “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” So regardless of how States’ permitting schemes are set up, keeping and bearing arms is presumptively lawful nationwide. We therefore refuse to “single out the Second Amendment for disfavor,” ), and we reject the district court’s categorical rule that presumes Louisiana gun owners are committing crimes.
The panel, though, concluded that Wilson’s stop was justified under Terry because there were other factors that created a “reasonable suspicion that criminal activity may be afoot”; primarily his relationship with Fernandez, who was a federal fugitive allegedly involved in a shootout related to drug trafficking.
For those of us who don’t regularly pal around with drug traffickers or violent offenders, the Fifth Circuit’s decision offers real protection against unlawful searches just because we’re exercising our Second Amendment rights… at least in those states under the court’s jurisdiction. It’s unclear whether Wilson will appeal the decision to the Supreme Court, but even if he does the Court will most likely be able to respond without discussing the Second Amendment implications of the appellate court’s decision.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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