18 U.S.C. § 926A — part of the Firearms Owners’ Protection Act — provides (subsection lettering added),
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof,(a) any person who is not otherwise prohibited by this chapter [18 U.S.C.S. §§ 921 et seq.] from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm
(b) for any lawful purpose
(c) from any place where he may lawfully possess and carry such firearm
(d) to any other place where he may lawfully possess and carry such firearm
(e) if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
This in principle is supposed to let people drive and fly through states with their locked and unloaded guns, without having to worry about the laws of those states through which they briefly travel. But, unsurprisingly, this protection isn’t as strong in practice as one might imagine in theory. I blogged about one possible problem with it a few months ago; today I saw another decision, Torraco v. Port of Authority of N.Y. & N.J. (2d Cir. June 30, 2010), that highlights another problem.
Here’s the difficulty in a nutshell: If you’re traveling from Virginia to Vermont, and are going through New York, you might know that your possession is lawful in Virginia and Vermont. If you’re prosecuted for violating New York gun law and move to dismiss under § 926A, the judge should be able to figure out that your possession is lawful in Virginia and Vermont. But how is a police officer deciding whether to arrest you, or seize your weapon, or detain you in a way that makes you miss your flight to know? Police officers are supposed to know the laws they are enforcing (though that can be pretty difficult). But knowing the gun laws of all 50 States is quite a bit harder.
In any event, one can imagine a legal regime that requires the officers — or at least those who routinely encounter such situations, such as airport police in airports where FAA-required declarations that you’re checking a gun in your luggage lead to automatic calls to the police — to have reference works that they can consult on this. But it looks like courts are reluctant to require such a regime; the Torraco panel holds that any interference with § 926A doesn’t lead to liability for the police, because of the difficulty the police would face figuring out the law.
For similar reasons, the panel seems to make it very hard to sue the police for false arrest in such a situation, because a reasonable police officer might think that the terms of § 926A aren’t satisfied — except perhaps in some hard-to-define set of cases in which the officer can be reasonably expected to know the other states’ law, at least in light of whatever licenses or other documents the traveler presents from the other states. Maybe giving concealed carry licenses from both states would suffice to put the officer on notice, so that any arrest despite the presence of the documents would be unconstitutional. But what if the person doesn’t have a concealed carry license, but still lawfully owns the gun, and is free to carry it openly (or even concealed, in the states that don’t require a license to carry concealed, or in certain contexts where concealed carry is otherwise allowed without a license)? Such people might well not have any documents that show this, and the police officer would likely not be expected by a court to know that the other states’ laws allow it.
So police officers seem to have nearly unlimited authority to arrest and otherwise interfere with people who are exercising their § 926A rights, with no threat of damages liability or anything else deterring such arrests or interference. And while I’m sure that most police officers want to follow the law, and don’t want to arrest people who are behaving legally, even well-intentioned officers might well know little about § 926A in the first place and even less about the other state laws that they’d have to apply in order to figure out whether the person is indeed transporting the gun legally. Now perhaps this is a necessary evil, given the police officers’ duty to enforce their state law, and the difficulty of knowing all the other states’ laws. But it is a reminder of how one’s rights on paper might not readily translate into rights in practice, even in the absence of any ill intentions on the part of the police.
Kamal says:
Interesting Eugene, I hadn’t thought of this. What remedies do you recommend? Just more informed police officers? Seems unrealistic,. When California legalizes marijuana, and other states eventually follow, do you think that will face the same issue?
July 2, 2010, 3:41 pmMike P Wagner says:
This posting and the earlier posting make for an interesting read.
Are there any other objects and/or material that have this peculiar property of having wildly different legal status in different jurisdictions?
If there are, is the case law for those cases equally complex?
I am thinking of something like transporting a case of Scotch through a dry county (though I think that dry counties in general prohibit sales, not possession of alcohol).
July 2, 2010, 3:51 pmOrenWithAnE says:
Can you suggest a statutory fix?
July 2, 2010, 3:52 pmJPG says:
Not a remedy, but one way to deter at least a bit such scenario to happen would be to carry proper information yourself either in your luggage or on yourself (in this case, involved States laws’ texts). The authorities would certainly find it easier to validate your claim that you are not abusing the law.
July 2, 2010, 3:54 pmruuffles says:
You think that’s crazy? A panel of the same circuit dismissed false arrest claims because a NY law overturned by NY’s highest court was not updated in the manuals the officers carry.
July 2, 2010, 3:54 pmTim says:
Full federal preemption might not be popular, but I’d bet it’d work quite nicely.
It’d also never pass through Congress, and probably cause a host of other problems.
July 2, 2010, 3:56 pmlimaxray says:
There is a very similar problem here in the wonderful State of NJ. Since we did not have a right to arms until just this Monday, any ownership of a firearm was by exemption – owning a gun was illegal unless you met some criteria. Since a police officer could not always determine if you met one of these exemptions, the SOP is often to arrest anyone found in possession of a firearm.
I wonder now, will McDonald change this? Wouldn’t a right to arms prohibit this type of policy?
July 2, 2010, 4:01 pmQET says:
While I am sympathetic to the poor policeman, let’s see:
Ignorance of the law no excuse for a citizen? Check
Ignorance of the law an excuse for the State? Check.
Typical!
July 2, 2010, 4:06 pmsofa says:
Human being have a right to weapons that “shall not be infringed”.
“all laws repugnant to the Constitution are Null and Void”
- John Marshall, SCOTUS, Marbury vs Madison, 1803
Similarly, Courts and Governments repugnant to the Constitution make themselves Null and Void.
Laws to split hairs and infringe = Workfare project for Lawyers
July 2, 2010, 4:06 pmAllan says:
Welcome to the real world, conservatives.
Conservatives are all for 2d amendment rights. Just like they are for 1st and 4th amendment rights. They just don’t want governments to pay for violating the 1st and 4th amendment rights. Frivolous lawsuits and the exclusionary rule taking a primary position in their arguments.
I propose that there is no effective means for enforcing constitutional rights. Taking money means taking it from your fellow citizens, most, if not all of whom support your position.
There simply is no viable remedy. My proposition is to just throw the Constitution away (more specifically, the bill of rights).
July 2, 2010, 4:07 pmOrenWithAnE says:
But that was not the intent.
Perhaps I’ll be more clear in my query. Can Eugene (or anyone else, but especially him since he posted this) propose a statutory fix that saves Congress’ intent to allow gun owners safe travel without disturbing the current State-based scheme of firearms regulation?
Obviously the current wording doesn’t.
July 2, 2010, 4:09 pmsofa says:
suggesed statutory fix ?
“shall not be infringed”.
Infringing invalidates the governments authority under the Constitution.
July 2, 2010, 4:09 pmCrunchy Frog says:
Too bad there is no readily acessible device, issued to all police officers (let’s call it, say, a “radio”), that the officer could use to obtain information about the gun laws of the relevant states in question.
That would be like, so cool, you know?
July 2, 2010, 4:17 pmBob says:
I travel by car from Virginia to Michigan several times per year. I have a CHP. I carry several handguns for target shooting outings. The state-to-state firearms laws are a bit confusing. Firearms and ammo are separate and the firearms are unloaded in a locked container that is then chained to the vehicle. I’m still not too certain that a LEO may not think I’ve violated some law.
July 2, 2010, 4:18 pmKCrary says:
I guess when they say that ignorance of the law is no excuse, they’re talking about us, not the authorities. If the authorities are ignorant of the law, it’s our problem.
July 2, 2010, 4:21 pmMike S says:
So, a law enforcement officer, who’s job is to know the law, can get off with an “ignorant of the law” excuse in this situation, although the public can’t. And, they can assume that the citizen is transporting illegally, with no evidence or probable cause otherwise. All while the citizen is exercising what has been decided to be a right. As a non-lawyer, that just seems like bad judging.
July 2, 2010, 4:22 pmruuffles says:
Now that McDonald is decided, I’m going to sit back and watch the collision between the ramping up of 2nd amendment rights and the watering down of 4th amendment rights.
http://sentencing.typepad.com/sentencing_law_and_policy/2008/12/are-the-modern-second-amendment-and-fourth-amendment-on-a-collision-course.html
July 2, 2010, 4:23 pmRowerinVA says:
This is a tad off topic, but:
It would appear that a prudent course would be to print out copies of 926A and the starting and ending states’ laws, and keep them in the gun owner’s possession to discuss with the police if stopped. If the officer is cooperative, it will help the officer check quickly (presumably, via radio) should the officer feel the need. It might also put the officer on notice of the rights involved (I say “help” as it wouldn’t be a total fix) such that the burden might shift to the officer/department in a false arrest case; I’d be curious to see Eugene’s thoughts on that point.
One shouldn’t need to do this; rights should be rights regardless of “prudence.” But all the same, I will be doing this if I ever find myself in the situation.
Thanks for the tip. I was not aware of the existence of 926A.
July 2, 2010, 4:26 pmSebastian the Ibis says:
The FIOPA’s real impact is with FedEx and UPS. If FIOPA did not exist the carrier would be liable whenever firearms are shipped across a non-free state.
Similarly, one way to create a statutory safe harbor is to allow people to mail or ship firearms to themselves. Right now a non-licensee(ordinary person) can only ship out of state to a licensee (firearm dealer, manufacturer, FFL 03 etc.). However, if a non-licensee could ship firearms to be held at the post office or Fedex Office and then sign for them when they arrived, most of the aforementioned issues can be avoided. This would not work in all situations, but it would create a safe harbor for a lot of them.
The alternative is to strike laws for vagueness if they are too complicated for police to understand. After all, how can the average American be expected to understand the laws if trained police cannot?
July 2, 2010, 4:46 pmG.R. Mead says:
To paraphrase Chief Justice Roberts’ memo quoted during his confirmation hearings: “We had that meeting in 1789 in Philadelphia.”
I believe that would be the “and bear” part of the “right of the people to keep and bear arms” that “shall not be infringed.”
But then, I suffer from a bush-league law degree without the Ivy League sophistication necessary to misread plain English … ;->
The only question is full faith — and that tees up P&I — right squarely — and explicitly within Saenz … and Justice Thomas will rise again …
July 2, 2010, 4:59 pmDilan Esper says:
Believe it or not, the best fix for this is one 2nd Amendment zealots would vehemently oppose– if you did a national registry or 50 state registry of firearms, or even of ONLY firearms that were going to be transported across state lines, then it would be straightforward for any cop who came across a firearm in this situation to check the firearm against the registry, see that it is legal, and not arrest.
But if we aren’t going to do that, the second best solution is to simply pass a law preempting state laws that prohibit possession of unregistered locked, unloaded firearms. Would such a law be permitted under the Commerce Clause?
July 2, 2010, 5:02 pmMike S says:
Yes, and this would also eliminate the silly “unloaded and out of reach” requirements, which are anathema to the natural right of self defense.
July 2, 2010, 5:07 pmG.R. Mead says:
It occurred to me that we could have an interesting split — the right to “keep .. arms” incorporated by substantive due process while the right to “bear arms” (at least in interstate travel) incorporated by the P&I clause (per Saenz).
Then I can see some fascinating interstate equal protection arguments arising ..
[Must make more popcorn ...]
July 2, 2010, 5:07 pmcboldt says:
– the second best solution is to simply pass a law preempting state laws that prohibit possession of unregistered locked, unloaded firearms. –
July 2, 2010, 5:13 pmIsn’t that what 18 U.S.C. 926A is? The issue isn’t the presence of the law (which seems to fare well under judicial care), rather it’s the risk of inconvenience when LEO undertakes a precautionary arrest while the courts get to the truth.
My practical solution has always been to pack the firearms in a really inaccessible place, bottom of the trunk, back of the trailer, etc. The chance of them coming to the attention of LEO is nil.
Allan Walstad says:
I say keep them all ramped up, Ruuffles. You?
July 2, 2010, 5:17 pmJosh Bornstein says:
This, of course, is the sensible policy. Putting aside the nice theoretical question of whether or not a law-abiding citizen should *have* to do it; my guess is that this would eliminate a large percentage of police mistakes. (And, in terms of potential subsequent lawsuits, it would seem more difficult for a cop to claim that her ignorance of the varied states’ laws was reasonable if she had been presented with written documentation of those laws, and she had then failed to follow-up.)
I have traveled a lot, and always with scores or hundreds of rolls of 35mm camera film. There is a federal regulation that *mandates* hand-inspection at USA aeroports when the flier requests it. Since I started flying with a printout of this fed code section, I have never had a problem convincing a (formally unwilling) inspector to let me bypass the x-ray machines with my film. (Of course, I make my request with a smile, and continue to smile if I have to persuade the inspector, which probably goes a long way as well.)
An ounce of prevention . . .
July 2, 2010, 5:38 pmG.R. Mead says:
“An Act prohibiting the possession use or transport in interstate commerce of unlicensed internet servers or devices … Internet servers and devices, being notorious elements in terrorist funding, propaganda and coordination of mass casualty attacks, constituting therefore a clear and present danger to national security and the orderly regulation of interstate commerce, compulsory registration and due punishment and forfeiture for those who possess, use or transport unlicensed devices in or affecting interstate commerce or national security is hereby enacted as follows …”
OH wait, that could NEVER HAPPEN …
.. Making them useless for the core reasoning of the right, which is self-defense… I don’t think that really flies… What is the argument that your right of self-defense ends at your doorstep?
July 2, 2010, 5:42 pmMark N. says:
It seems most of the practical solutions would involve some sort of issuance of “yes, this person may have this weapon in these states” certificates. I can see gun-rights advocates opposing those on principle, on the grounds that gun rights should be default “yes”, not default “no”, and issuing certificates starts a slippery slope towards making gun possession illegal without the certificate, even if it didn’t start out that way.
One possibility, though perhaps still objectionable, would be for a group of states with very permissive gun laws, say states that allow anyone except felons and the mentally ill to carry, to issue joint certificates to anyone who asks and complies with those basic requirements (i.e. after checking that they don’t have a felony on their record). The certificates could be issued by any state party to such an agreement, and say something like, “so-and-so may carry a weapon in [list of states], and, if stored in compliance with 18 U.S.C. 926A, in transit between any two such states”.
July 2, 2010, 5:46 pmPersonFromPorlock says:
Simple solution? Make the police responsible for false arrests and subject to individual lawsuits in federal court. I’m sure they’ll figure out a way to be well-informed.
July 2, 2010, 5:51 pmmicrotherion says:
Reading this thread, a different question occurred to me: How does an individual in this situation establish the origin and intended destination of their trip (or the weapon’s trip, at least) ? Conversely, what prevents a gun owner from circumventing state laws by always claiming to be in the middle of a trip between two different states?
July 2, 2010, 6:02 pmOrenWithAnE says:
While a lot of NYS gun laws will go, I’m quite certain some form of permitting scheme (shall-issue, probably) will be upheld. A man traveling from VA to NH will still need exemption from the Heller-compliant NYS gun laws.
Yup.
Presumably Congress intended to prevent the precautionary arrest as well as the eventual conviction. They are 1/2 and need to go back and draft a better law.
But that certificate would have to be printed by a computer, which would mean a record, which would means cries of bloody murder over the routine keeping of administrative records. We’ve been there before.
As I understood, the law does not cover anything other than bona-fide travel through the State — i.e. you better be on the road, filling gas or taking a leak.
July 2, 2010, 6:20 pmzippypinhead says:
I hope Steven Halbrook (counsel for one of the plaintiffs on this appeal and a leading Second Amendment litigator) files a cert petition. Especially after McDonald, this one is worth taking up.
FOPA pre-empts state fireams possession laws for interstate travelers who comply with its requirements. On the facts of these cases, the Port Authority police should be charged with institutionally knowing the relevant laws, or with having procedural mechanisms in place to readily determine whether N.Y. law is, in fact, preempted. We’re not dealing with a one-constable department in Podunkville — these cases involved illegal arrests by the law enforcement agency responsible for some of the busiest interstate air and rail transit hubs in the United States. Millions of passengers transit these hubs every year. Facing regularly-recurring FOPA questions is a fully foreseeable issue, and the Port Authority police should be able to use their standard communications tools to take advantage of publicly-available resources to quickly determine whether there is or is not probable cause to arrest (i.e., call back to HQ where the desk sgt. can look up the relevant state laws in a compendium book or online – no more burdensome than calling in a driver’s license number for a database query to see if there are outstanding warrants).
Side advantage of a successful cert. petition: This could be an outstanding first case for SCOTUS to hold the Second Amendment applies OUTSIDE the home under at least some circumstances. Although if there wasn’t already an allegation that the Port Authority police violated the plaintiff’s Second Amendment rights during the improper firearms seizures and arrests, the plaintiffs might first have to move for reconsideration in light of McDonald to set up a successful cert. petition? Added benefit for this case going up as the first SCOTUS test of RKBA outside the home: since there’s already a Federal law specifically authorizing people to “bear” arms under the facts presented, some of the messy issues raised by trying to invalidate existing laws (e.g., standard of review; whether the restriction falls inside one of Heller’s carve-outs like “sensitive places”) aren’t a problem here.
July 2, 2010, 6:21 pmJ.K. says:
This isn’t nearly the problem (of law) that Prof. Volokh is suggesting it is.
There are a number of laws that allow possession of certain products for legal purposes, or prohibits the possession of those products for unlawful purposes. However, it’s not a common occurrence for police to arrest people purchasing or transporting those objects. Therefore, this is merely an example of overzealous police officers abusing their lawful authority, rather than legitimately attempting to enforce a law.
July 2, 2010, 6:25 pmJohn A says:
But “ignorance of the law is no excuse.”
Law enforcement is in an unfortunate position in this, and in many other circumstances. But then, the average citizen is in an even worse position.
July 2, 2010, 6:36 pmKatahdin says:
If I tell the policeman that I’m taking the AR-15 to or from a state that doesn’t allow them, and he is savvy enough to know those details, then I think an arrest is reasonable – he has probable cause for an arrest, if I am using the terminology right (IANAL). But it I am transporting, say, an unloaded bolt action rifle from VA to VT via NY, how can an NY police officer justify an arrest on the grounds that one of those states might outlaw such a gun, or might require registration, or a FOID, or I might be a prohibited felon, or …? How is that different from arresting me because my socks might be stolen – after all, I can’t prove they aren’t stolen either.
Given the broad pattern of gun laws, and absent specific knowledge to the contrary, how can officer can have probable cause of a crime for that set of facts?
July 2, 2010, 6:42 pmBrandon Combs says:
There are 2 excellent “bear” cases coming up which Mr. Gura is lead counsel for; see Sykes v. McGinness in California and Palmer v. D.C. in the District of Columbia.
July 2, 2010, 6:45 pmAnti Federal Interventionist says:
What’s the point in traveling with an unloaded firearm? The guy shooting at you is already loaded, why should you be at a disadvantage? By the time you load your gun, you are dead.
July 2, 2010, 6:47 pmOrenWithAnE says:
Probable cause? The guy was clearly in violation of the relevant New York statutes, the officer didn’t believe FOPA applied under the circumstances.
Obviously it does and obviously FOPA needs to be rewritten.
July 2, 2010, 6:54 pmMike in MN says:
The fix to this is money, specifically cutting off Federal funding, for airport and transit police that infringe on 962 without compensating the victim. In situations it’s not random, then even with compensation, their funding is jeopardized.
July 2, 2010, 6:58 pmLarryA says:
Except that the laws in 36 of those states are identical. Any person not federally prohibited may possess a firearm without any silly registration/licensing requirements.
Step A would be to give the cops a list of the 14 states where a person might not have permission, and tell them not to bother the rest of us.
Because the firearm in question is for hunting or target shooting, and not self-defense? Or because I’m travelling from one of the 31 states where I can concealed carry to another, and I have to spend a couple of hours in one of the few states where I can’t?
July 2, 2010, 7:04 pmnotaclue says:
I hope Heller and McDonald will help normalize firearms ownership in general. Part of our problem stems from some people’s belief that gun possession is automatically a suspicious act. Why should an officer or anyone else assume I’m up to no good because he sees my .38? At least it’s not Sudafed.
/sarc
July 2, 2010, 7:05 pmJay says:
Hard to see any basis for a 2nd Amendment cert petition, since plaintiffs don’t appear to have been relying on any such claims below, but rather on a violation of the 4th Amendment/the federal statute. Even if there was a preserved 2nd Amendment claim, the qualified immunity issue would keep SCOTUS from taking it; there’s no way it was clearly established at the time these arrests happened that anything these officers did violated the 2nd Amendment.
July 2, 2010, 7:17 pmMark says:
Crunchy Frog says:
Too bad there is no readily acessible device, issued to all police officers (let’s call it, say, a “radio”), that the officer could use to obtain information about the gun laws of the relevant states in question.
That would be like, so cool, you know?
Or maybe they can hire my 10 yr old to look it up on this new fangeled thing called the ‘internet.’ (Oh wait….that’s what we’re on now!!)
July 2, 2010, 7:27 pmKatahdin says:
Sorry, I’m slow :-). Let’s say we’re in a state that outlaws possession of prescription drugs unless prescribed by a doctor, but doesn’t specifically prohibit carrying legal drugs outside of the original container. An officer encounters someone with a nitroglycerin pill in one of those single pill containers angina patients carry on their keyrings. Is an arrest justifiable?
To my untutored mind, no – I expect that way less than 50% of people that fit that fact set are breaking the law. In the same way, I think that less than 50% of the people who, say, have their flight diverted to the Chicago airport after having checked a rifle in their baggage are not going to be legal owners in the source and destination states. If you are arresting under a set of facts that is, say, less than 1% likely to sustain a conviction, how can that be ‘probable’?
One can come up with fact sets where an arrest might be justifiable – the guy with the drugs has 500 Oxycontin pills in a baggie, or the guy with the gun is covered with prison tattoos – but it seems the officer ought to be able to explain why he thought this particular guy was more than 50% likely to be breaking the law. I don’t think arresting people who checked a gun and had their flight diverted to Chicago can meet that test.
July 2, 2010, 7:37 pmRoy W says:
I was chatting with a friend that just graduated from the local police academy. In passing he mentioned that a 70% score on the “law” portion of their final certification was a passing score. I said “so you can be wrong about 30% of the law and be a cop??” he says “Yup”.
July 2, 2010, 7:46 pmnotaclue says:
Katahdin, you’re right. I carry some meds in one of those key ring cases, and I make sure I have a drug store label for each in my wallet. I’ve never had to show the labels and probably never will, but it takes only one incident to ruin your day.
We live in an environment where carrying guns or prescription pills leads some to assume the worst. Such an environment lacks freedom.
July 2, 2010, 7:55 pmGaunilo says:
I think the obvious attack on this problem would be a vigorous and well-funded attack on the qualified immunity of officers making an arrest under conditions where the defendant was clearly in legal possession of the firearm under the origin and destination state laws.
After enough precedents are established, and enough damages extracted from the arresting officers and their departments, the ignorance of the law and the subsequent violations should make a natural and well-understood decline. The purpose of law enforcement is both to punish and to deter.
The tree of liberty may need to be watered from time to time with the chattels of law enforcement officers.
July 2, 2010, 8:02 pmAnti Federal Interventionist says:
LarryA says:
Because the firearm in question is for hunting or target shooting, and not self-defense? Or because I’m travelling from one of the 31 states where I can concealed carry to another, and I have to spend a couple of hours in one of the few states where I can’t?
You may think the rifle or shotgun you are carrying is for hunting or target shooting only, but the gunman pointing his gun at you doesn’t care. (The best kind of hunting or target shooting is killing a criminal in the act.) And as far as non-conceal carry states are concerned, hopefully their laws will be overturned forthwith. Banning concealed carry (and loaded guns) only protects criminals.
July 2, 2010, 8:33 pmGaunilo says:
I just read Torraco v. Port of Authority of N.Y. & N.J. What an incredible pile of steaming horse pucky.
The essence of the case is that notwithstanding the clear language of the law, an officer that arrests you under state law in a clear interstate travel situation is in no way liable to you because the 50 state laws are just way to complicated for a poor law enforcement officer to understand or apply. So as long as he can show that “he had a GUUN!!” he can arrest you and your only recourse is to use the Federal law as a defense in court. And if I read the opinion correctly, the state court could still legitimately convict you, and as long as you had the right to appeal the conviction in Federal court, then all is well, nothing to see here.
But of course we subjects are obligated to know of the thousands of Federal statutes that we may be violating, as well as the huge mass of state and local laws that we never heard of. Ignorance of the law is not excuse, ya know.
Your time, the $200,000 minimum you would spend in the process, and the un-expungable record you would acquire is just too bad. Justice has been served.
I do hope that someone is appealing this opinion. It reduces the statute to a complete nullity.
July 2, 2010, 8:43 pmMalvolio says:
I’d be the last person to defend the competence or qualifications of police in general, but this is unfair.
The questions in this test, in any tests, are naturally the ones you expect people to get wrong. I’m guessing, for example “Murder? (a) legal, (b) illegal” is not on the test.
It wouldn’t be impossible to design a test such that a 70% score guaranteed the taker had an adequate knowledge of the subject.
That said, the passing level was almost certainly set so as to pass a sufficient number of candidates to meet preset quotas.
July 2, 2010, 8:50 pmMike S says:
What if I’m traveling from the midwest to California (OK, bad example :-) ). Don’t I get to sleep?
July 2, 2010, 9:10 pmOrenWithAnE says:
You can sleep, but you better comply with State firearm laws while you do so.
July 2, 2010, 9:48 pmFûz says:
“anything other than bona-fide travel through the State — i.e. you better be on the road, filling gas or taking a leak.” I disagree. Does not a hotel room qualify as one’s ‘home’ for other legal purposes, therefore under Heller’s self-defense in the home? A rental property just like any other, just very short term. I have CCW permit, and I do travel, and I do take it with me when I know that the CCW permit is valid where I’m going.
” ‘. . . to simply pass a law preempting state laws that prohibit possession of unregistered locked, unloaded firearms.‘
Isn’t that what 18 U.S.C. 926A is?” That’s how it was intended, on plain reading. And I’m a plain reader.
Hoping someday a flight doesn’t cancel and force me to board and check luggage in NY, NJ, or IL. My WY motor vehicle and CCW licenses, plus my electronic ticket for airline travel to another State where my CCW is valid (I often print the destination State’s CCW laws and bring them) do not suffice under 926A to demonstrate my origin and destination?
I already know from reading here at VC and elsewhere that NY violates McClure-Volkmer, for the same reason a dog licks its genitalia—because they can.
Maybe McDonald means they can’t any longer.
July 2, 2010, 11:00 pmKatahdin says:
Is there precedent about that? Filling your gas tank, emptying your bladder, buying a cup of coffee or eating lunch, and spending the night at a roadside motel all seem to be points on a continuum.
July 2, 2010, 11:05 pmvinnie says:
OK IANAL!!! But please explain how your ignorance of say Idaho and Vermont gun laws are a “reasonable suspicion”
July 2, 2010, 11:30 pmRicardo says:
I don’t think it is. Federal law still allows states to arrest and convict a non-resident for transporting a firearm that would be illegal in either his source state or destination state. So if a Virginia resident illegally possesses a firearm in Virginia and then transports it through New York (where it would also be illegal if he was physically present in the state for reasons other than interstate transit), the state of New York can arrest him for violating New York law.
I think the suggestion is to remove states from the equation entirely and make cases like this exclusively federal in jurisdiction.
July 3, 2010, 12:11 amJay says:
Right, this is especially true given s. 927, which explicitly disavows an attempt at field preemption.
July 3, 2010, 1:17 amPES says:
I’d love to find one LAWYER who is not wrong about more than 30% of the law.
July 3, 2010, 1:27 amDavid Schwartz says:
How about a generic “lawful possession” Federal law. The law would basically say that if any person is transporting any object for a lawful purpose, and where his possession would be lawful both in his originating and his intended destination, intermediary jurisdictions cannot criminalize such possession. An additional law would prohibit police from arresting or detaining people for violating local possession ordinances unless they have either an arrest warrant or a reasonable belief based on specific facts that such possession was unlawful at their intended destination or such transportation was not for a lawful purpose.
July 3, 2010, 2:05 amwhit says:
but for the record, there are very few of these laws that you NEED to know instantaneously w/o reference to book(s) in your car or the internet.
for example, we arrested a guy the other day for picking up a drug with a forged prescription. i pointed out to the arresting officer that the specific drug he had forged a prescription for was in fact not a controlled substance, but was in fact a legend drug (prescription required), thus the actual possession of it was a gross misdemeanor, not a felony. he had no idea. but it was irrelevant to the proper actions he took, because both the forgery and the possession were still arrestable offenses, etc. and he could check the exact charges when he got the guy back to this car. he turned out doing the case by “investigation” and releasing the guy pending charges, because it was such a low grade offense, we had good i.d. on the guy, and the guy was cooperative (yes, it may suck, but attitude counts).
i have no idea off the top of my head, the $ amounts that differentiate different grade of malicious mischief, for instance. so what? i can look them up. despite the fact that i’ve made dozens of those types of arrests, i just don’t care. i can look them up. it never affects a FIELD decision.
it’s a good idea to know a lot of laws in their essence because then you can recognize them WHEN you see them, but it is hardly necessary to memororize the vast majority of what’s inthe criminal law books.
fwiw, i have found that cops know a lot more laws than prosecutors (on average), which is why it’s good to spell those out in the reports. i know a cop who got a case nolle prossed because he stopped a guy for an infraction the prosecutor was unaware existed. if he had pointed out oin the report WHY (the RCW) he stopped the guy, the prosecutor could have looked it up.
July 3, 2010, 3:50 amLarryA says:
My single-shot deer rifle is pretty much for hunting, and it’s unloaded unless I’m actively looking for a deer. I’ll use my Glock or one of my semiauto rifles for self-defense.
I agree about concealed carry.
July 3, 2010, 4:00 amOrenWithAnE says:
Oh absolutely.
I also think that, consistent with Heller, a State may enact a shall-issue permitting scheme for the possession of firearms within the home so long as it is not conducted in a discriminatory or arbitrary fashion.
18USC926A, on plain reading, applies only to travelers through a State — it does not preempt those laws entirely.
As I understand, the bright line excludes the latter and includes the rest.
July 3, 2010, 10:00 amSuperSkeptic says:
On the other hand, it could lead to greater protection for both. After all, Terry and its subsequent interpretation couldn’t provide much less protection under the Fourth as it is.
July 3, 2010, 2:16 pmMack says:
ahhh…so ignorance of the law IS an excuse…?
July 3, 2010, 5:21 pmWendy Weinbaum says:
As a Jewess in the US, I can only say that now is the time for all REAL Americans to put our 2nd Amendment FIRST!!
July 3, 2010, 6:19 pmMark Jones says:
Only for agents of the state or the politically-connected, of course.
July 3, 2010, 7:21 pmReasoner says:
I can’t believe it was 30 comments before Katahdin finally got the correct answer here. The answer is that it is perfectly legal for a traveler to transport a firearm in a locked container from one legal state to another, and therefore when a cop finds someone transporting a gun in a locked container, the cop doesn’t even have reasonable suspicion to detain the person for questioning. Unless the circumstances indicate otherwise, the cop doesn’t even have the authority to require an answer to whether the person is traveling interstate, or what the origin or destination are. That’s your personal business. To be sure, this makes it hard to enforce the preempted local law, but preemption can have that effect. If you think I’m going too far by saying cops can’t even ask if you’re an interstate traveler, then fine, lets just say for the sake of argument that cops can require your origin and destination. Then what reasonable suspicion would they have to detain you any longer if they don’t know if what you are doing is illegal? If they don’t know there is a law making your act illegal, then they’re not supposed to detain you. We’re not supposed to have to, and we can’t, prove our innocence. Cops aren’t supposed to detain people who MIGHT be breaking the law, while the cops educate themselves on the law.
Also, staying the night in a hotel is a normal part of interstate travel, and thus the preemption must exist to, from, and at the hotel as well. And since the interruption of your vehicle transport plans may be unavoidable, you must be able to carry them in a locked box on your person, which is no more readily accessible than in a locked box on the seat next to you in a vehicle with no trunk.
I’m not a lawyer so I could easily be wrong about this. Don’t take this as legal advice.
July 3, 2010, 8:06 pmAllan Walstad says:
Is having an out-of-state license plate significant here? Say if I have a PA plate and (claim) I am merely driving through NY to VT, and the pistol is locked, unloaded and in the trunk, then there’s no reason for the officer to suspect me. But if I have a NY tag…?
July 3, 2010, 9:31 pmRicardo says:
The fact that an act is perfectly legal does not mean it cannot arouse reasonable suspicion in police. Reasonable suspicion is just that — a police officer given his own professional experience and intuition looks at a situation and says to himself “maybe a crime is taking place here or is about to.” A police officer has the power to investigate if he can articulate the reasons for his suspicion.
A campus police officer once gave a good example of what constitutes reasonable suspicion in her job: seeing someone walking on campus at night with two bicycles. Maybe there is a perfectly legitimate reason for him to have two bicycles. Maybe there is not. The cop has the authority to make a Terry stop.
Transporting a locked and unloaded gun across state lines is sometimes a crime and sometimes not. That seems to be enough to trigger reasonable suspicion. The officer then attempts to ascertain facts to determine whether possession is legal or not.
July 3, 2010, 10:06 pmKatahdin says:
Sure – but when his investigations results in the person saying ‘I live in WY and am transiting IL on my way to Camp Perry, OH’, and all the available facts agree with that, is it still reasonable to make an arrest, just because it is remotely possible the transit isn’t legal?
If Ma, Pa, and the kids are in the station wagon and say they are driving to Disneyland, is it OK to arrest the lot in case the $422.57 in cash is really drug proceeds instead of the vacation fund? It’s possible, but not probable.
Your campus police officer shouldn’t be stopping and arresting everyone he sees riding a bike, should he? Some of them might be stolen, after all. Probably very few of them happen to have the bill of sale with them. Arrest them all and let the DA sort it out?
July 3, 2010, 10:56 pmJeff Dege says:
All the discussion of carry laws is irrelevant. The federal law doesn’t turn on whether the gun is legal to carry, only over whether the gun is legal to possess.
There are only a very few of states that require licensing or permits for simple possession, and some of those few make exceptions for non-residents.
And as for transporting a locked and unloaded gun across state lines, it’s a perfectly innocuous act, that is never a crime in and of itself.
The presumption should be that if an individual is not forbidden to possess under federal law, he is legal to possess in his states of origin and destination. And that the FOPA protections apply.
July 3, 2010, 10:59 pmReasoner says:
The big failure of the court’s reasoning is entirely in this section:
July 4, 2010, 12:11 amme says:
I disagree with the implications of the article. When transporting firearms I contend that one must be allowed to traverse through a state where the firearms are banned under Federal Law. It is clear that Congress has spoken on this issue. Therefore, at least according to the Commerce Clause, if not the dormant commerce clause, any state law in contravention to this statue would have to fail. As for the evidentiary standards, I would suggest treating movement of a vehicle in which firearms are carried like flying a private airplane. Clearly have an itenerary and maps showing the intended path of travel. Were one questioned by the police and the subject of weapon transportation to arise have the evidence of the route one is traveling available to the officer. In this manner, arrest of the individual would be a risky endeavour for the officer, because qaulified immunity would probably not be present. Moreover, any distract attorney or officer or other complaining witness that provided testimony in support of the criminal nformation would not have qualified immunity were for the prosecution, were it found that the evident provided demonstrated that no reasonable preson would find that the travel arrangments by the arrseted party were not covered by Federal legislation.
July 4, 2010, 2:51 amIn short, if someone traversed came from Nevada, traversed California with the intent to proceed into Washington state with an assault weapon, any arreast of the person in California by the authorites would place the arresting parties at risk for personal liability.
Ricardo says:
I’m not defending the police here. What the court decided was that a police officer making an arrest in violation in 18 U.S.C. 926 cannot be held liable under 42 U.S.C. 1983. I’m not sure if the decision is right but Congress could fix the problem by adding provisions for damages to 926. Absent any such fix, you cannot sue the police in federal court for such an arrest.
The term strawman is overused on the internet but the rest of your comment is a perfect example of strawman rhetoric. Nowhere did I say police should go around making arrests without probable cause.
July 4, 2010, 3:14 amRicardo says:
New York appears to be one such state with no exception for non-residents (and people who do not work in the state), isn’t it? These three cases came out of airports in New York.
That would be nice if that was the law but it isn’t at the moment.
July 4, 2010, 3:20 amReasoner says:
The idea that a person who is lawfully checking in a gun at an airport can be arrested because it’s hard for the officer to tell if the person is in compliance with the federal law, is absurd. If the officers can’t tell if the law is being broken, then they should assume it’s not being broken and they have no business making the arrest.
July 4, 2010, 6:52 amJeff Dege says:
Yes, but that’s irrelevant. It’s the laws of the states of origin and destination that determine whether the federal preemption applies. It’d not be all that hard for the Port Authority to put together a list, so that they’d know to check for licenses for travelers to or from Hawaii or Massachusetts, and to leave everyone else alone. If they don’t have a list, they should presume legality.
July 4, 2010, 9:17 amReaderY says:
As I understand it here, the difficulty is that:
1. The statute merely provides a defense which is non-obvious to someone giving a cursory look at the situation. This means there is always probable cause, so one is always forced to be arrested and go to court to assert the defense, Probable cause always protects the police from liability. One can be repeatedly arrested, and hence harassed, despite complete innocence, and one has no recourse.
2. One often has the burden of asserting the defense, and it may be difficult to prove, particularly when one is travelling by automobile where there are no travel documents. If one is headed away from ones state of residence, how does one prove that one was traveling to a state where possessing the gun is legal? This means there may be a risk of conviction despite the existence of a constitutional right.
July 4, 2010, 10:31 amReaderY says:
I am surprised by the ruling as applied to air travel where there are travel documents establishing origin and destination.
Ordinary people are expected to know the law, but police officers aren’t?
Why are police officers held to a lower standard?
The question of what the law is in each state is a question of law, not fact.
Everyone is expected to know what the relevant law is. Even police officers.
July 4, 2010, 10:36 amsofa says:
“the right of the people to keep and bear arms shall not be infringed”
Any infringement is unlawful, and Nullifies the Authority of the infringer (Congress, Court, Police, Lawyers, most every comment on this post).
Infringing violates the agreement that created this government.
Discussions that nuance “shall not be infringed” brings us back toward another founding document, and “unalienable Rights”:
“.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
If “shall not be infringed” is to hard to understand, then consider that 1775 was hard for the Kings Court to grasp. How dare these people believe they have ‘Unalienable Rights’! Don’t they know we will force them to comply? That we will hire armed goons to destroy their lives and confiscate their property? Why do these poor huddled masses yearn to be free? Why did they kill the hired goon Hessians in their beds, as they slept, on Christmas morning? Because the government and bureacrats and lawyers of the time would not stop infringing.
Infringing is repugnant to the Constitution.
“Sic Semper Tyrannis”. Death to Tyrants. Thus Always unto Tyrants.
July 4, 2010, 10:51 amThe Virginia State motto, and a remionder that we have been here before.
sofa says:
“The question of what the law is in each state is a question of law, not fact.
Everyone is expected to know what the relevant law is.”
“shall not be infringed”
All Laws repugnant to the Constitution are Null and Void”
-John Marshall, 1803, Marbury vs Madison
All other laws, and lawyers mis-educated are Null and Void.
July 4, 2010, 10:59 amKatahdin says:
The conversation may have wandered to a point where we are confused about what each of us is saying, so let me clarify: there have been actual examples where people transport firearms in their checked baggage, in full compliance with the law, but the flight is diverted from the original destination to Chicago or whatever, and the airline declines to keep the checked baggage pending a flight out tomorrow. The traveler has the choice of leaving their luggage in the carousel, perhaps to be eventually stolen, or taking possession and being arrested then or when they try to recheck the bag tomorrow.
Some people on this thread have opined that such arrests are good policy – if there is the slightest possibility that the possession might not be legal in the source or destination state, then better to arrest them all and sort it out in subsequent legal proceedings.
My point is that that policy – that, faced with a set of facts that reasonably indicate the chance that a crime has been committed is, say, 1% or less, the police should arrest and then investigate – is very bad policy.
Probably all of us have borrowed a car at some point – a neighbor’s pickup truck, or your brother-in-law’s car. If you are stopped for a burned out tail light, your name isn’t going to match the registration. I’m going to guess that if you don’t seem especially twitchy, didn’t use a screwdriver in lieu of the ignition key, and the car hasn’t been reported stolen, that you are very unlikely to be arrested on that set of facts. To me, that set of facts does seem analogous to our stranded traveler – both present a fact set which indicates it is possible, but improbable, that a crime is being committed. Adopting a policy of always arresting people in either of those situations does not seem justifiable to me on any legitimate law enforcement basis.
July 4, 2010, 11:16 amOrenWithAnE says:
But the officer is quite certain that NYS law is being broken as the owner doesn’t have a NYS permit. The Federal law is one that, under certain conditions, exempts him from NYS law — not one under which he is being charged with noncompliance.
July 4, 2010, 11:28 amsofa says:
The officer, courts, lawyers, and country would be saved so much trouble if they read the law: “the right of the people to keep and bear arms shall not be infringed”.
Arguing about permits and policies is nonsense, and irrelevant.
The law is simple enough for police to understand: “the right of the people to keep and bear arms shall not be infringed”.
Courts and Congress will need regular arrests to stop them from infringing.
July 4, 2010, 11:35 amsofa says:
18 U.S.C. § 926A is about infringing. All such laws are Null and Void under the Constitution.
All the complications are nuances of the tyranny to suppress unalienable rights. It’s tough and complicated – Just the sort of thing to keep lawyers,courts, cops, and jailers employed forever. Oath Breakers. Self serving Traitors to the Constitution.
“shall not be infringed” – Everything else is against the law.
July 4, 2010, 12:26 pmvinnie says:
I don’t have time to find the link but I think Ne Jersey has paid several people six figure settlements for wrongful arrest of people checking in guns at airports under the FOPA.
July 4, 2010, 12:28 pmKatahdin says:
Forgive me for thinking like an engineer, but what sort of probability makes an arrest acceptable? If the totality of the facts make it 90% likely a person has committed a crime, then an arrest is pretty uncontroversial. What is your view of what the lower bound where an arrest is permissible? Isn’t there some lower limit?
Consider, again, a state that forbids possession of prescription drugs unless prescribed by a doctor. Is it reasonable to arrest people who have a nitro pill in a keychain holder? Isn’t this a direct analogue – the person is in possession of a prohibited item, but may raise the affirmative defense that he actually has a prescription? Is arresting him and letting him produce his doctor to testify at trial a remotely reasonable (in the general sense of the word) policy?
July 4, 2010, 12:44 pmilbob says:
Similarly, one way to create a statutory safe harbor is to allow people to mail or ship firearms to themselves. Right now a non-licensee(ordinary person) can only ship out of state to a licensee (firearm dealer, manufacturer, FFL 03 etc.). However, if a non-licensee could ship firearms to be held at the post office or Fedex Office and then sign for them when they arrived, most of the aforementioned issues can be avoided. This would not work in all situations, but it would create a safe harbor for a lot of them.
IANAL so take this with a grain of salt. You can ship a gun to yourself across state lines. There is no transfer to another person involved so it is not illegal. You can’t ship a handgun by USPS unless you are a dealer licensee because USPS regulations prohibit doing so.
As for FOPA, its another horribly written law that in practice is meaningless. The states where it was intended to provide some relief against routinely ignore it and the other 40+ states it was not an issue in the first place.
I would point out something that might well be non-obvious. Everyone is assuming that FOPA only applies interstate. It does not actually say that in the text.
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if,…
July 4, 2010, 4:07 pmV4Fan says:
I was threatened with arrest at the border. I am a U.S. citizen currently residing in Canada. I am licenced to carry in 33 states. I have all required Canadian licencing and travel authorizations. I do not have a NYS pistol permit, but 926a has always covered me when I crossed NYS to Pennsylvania.
This last time, a customs officer threatened to have me arrested under violation of NYS pistol laws. His phone calls were unsuccessful. Although he has to admit me, he does not have to admit my firearm. He turned me around. Later in the day, I crossed again, with no firearm. I was subjected to a full pat down at the primary and a full car search at secondary before I could proceed.
I hope it was an isolated case.
July 4, 2010, 5:11 pmNI says:
Maybe the wrong party is being sued. If an airline agent in New Jersey calls the police because someone gives the required Homeland Security report that there’s a weapon in his checked baggage en route to a state where that weapon is legal, sue the airline. Unlike the police, the airlines don’t have qualified immunity.
July 4, 2010, 7:58 pmReasoner says:
OrenWithAnE wrote:
New York law isn’t being broken by someone properly relying on the federal law because the federal law effectively changes the state law. The state law doesn’t exist under the circumstances. When an officer is considering an arrest, he has to ask: is this person in violation of the law which controls in these circumstances? If the officer doesn’t know the laws of the state of origin or destination well enough to know if the law is being broken, then the officer shouldn’t make the arrest. It’s just basic common sense that officers shouldn’t be arresting people when they don’t even know if what the person is doing is illegal or not because of their own ignorance of the law. At most they should just investigate the law until it’s time for the person’s flight to leave. The only reason these judges didn’t hold that way is because they’re so hostile to gun rights that they’re willing to break the law.
July 4, 2010, 9:24 pmcboldt says:
– The only reason these judges didn’t hold that way is because they’re so hostile to gun rights that they’re willing to break the law. –
July 4, 2010, 10:43 pmNot all of ‘em. But most of ‘em, and as far as those are concerned, they CAN’T break the law, on account of they believe their role in our ordered society is to make the law.
Kozinki’s written at least one blistering dissent, and the dissent in Kalidomos (IL Court, not federal) is pretty good. But there is another word for “dissent,” and that is “loser.”
OrenWithAnE says:
Not exactly, the State law exists but it does not bind that particular individual.
In fact, this distinction is precisely the one that the CoA made — the fact that the State law is not preempted on its face but only with regards to particular individuals.
Which they did and then answered (incorrectly) in the affirmative. Are you seriously implying that S1983 applies every times an officer arrests someone for conduct that, on closer inspection, is not illegal?
You want to create a presumption of lawfulness, something that is simply not evident in the statute — you know, that actual law that Congress wrote as opposed to your ideal on how you believe that law should operate.
I would have no problem whatsoever supporting a followup bill declaring a presumption of lawful travel. That would be a fine law. It is just not the law as it stands now.
July 5, 2010, 1:38 pmKatahdin says:
I think that something ought to be done to restrain an officer who is in the habit of making arrests where the available fact set indicates that the likelihood of a crime being committed is sufficiently small. To my untutored mind, that is implicit in the whole reasonable suspicion/probable cause thing. I don’t care if the deterrent is a S1983 claim, his Sergeant telling him that doing that again will result in pulling every unpleasant detail that comes along, or derision in the locker room, but I don’t want people who are almost certainly innocent being arrested.
This isn’t a gun thing – I don’t want likely innocent people being arrested for anything, whether it is possessing a gun, cash, prescription drugs, or photography in public.
July 5, 2010, 2:02 pmOrenWithAnE says:
Prescription drugs are on the same system — a citizen carrying them must have proof of prescription. He is not entitled to a presumption that they are lawful.
Let’s think of how it might work otherwise — the officer has no way to determining whether the person has a prescription of not. Under your proposed scheme, he must simply take the person’s word that they are lawful as final. That state of affairs is quite plainly not what Congress intended, at least with regards to schedule 2 drugs like most synthetic opiates.
July 5, 2010, 2:31 pmKatahdin says:
With respect, people commonly carry prescription drugs without any proof of their legality. The obvious examples are the little keyring containers for nitroglycerine pills, and any of my elderly relatives who go somewhere for a week with all their drugs in one of those Mon-Tue-Wed-Thu-Fri plastic containers.
Not at all – the officer evaluates the totality of the evidence – Gramps w/ a nitro pill, Granny with the Mon-Tue-Wed case, they are very likely to be able to produce a prescription if needed: arrest not warranted. Nervous guy with expired license and a couple of priors and a baggie of 500 oxycontin pills – unlikely to be able to provide prescription: arrest warranted.
July 5, 2010, 3:28 pmOrenWithAnE says:
Those are schedule III or IV (i.e. prescription but not often abused). That said, it is still a crime and an officer would be well within the law to arrest them.
As a practical matter, there is a big different between nitroglycerin and other drugs — I would certainly not recommend that a person with a lawful prescription for oxycodone (schedule II) do so.
(1) Possession of prescription drugs not in original container dispensed by the pharmacy
(2) Violation of the law.
That’s the entire chain of reasoning here.
July 5, 2010, 3:42 pmKatahdin says:
The absence of jailed Grannies with Mon-Tue-Wed containers leads me to think that police are using a little more discretion than that.
July 5, 2010, 3:49 pmOrenWithAnE says:
Indeed, but that discretion is not a matter of law. For the purposes of conviction (let alone probable cause to arrest), that chain of reasoning is more than sufficient. It passes with flying colors.
July 5, 2010, 4:28 pmOrenWithAnE says:
I should add that if your charge is that the New York Port Authority overreacted, you are absolutely correct. They certainly should have, as a matter of discretion, let the travelers continue on.
July 5, 2010, 5:09 pmJeff Dege says:
Maybe that’s the core of the problem. Where, exactly, does Congress get the authority to pass laws that remove or reverse the burden of proof?
What happened to presumption of innocence?
July 6, 2010, 8:25 amOrenWithAnE says:
You are presumed innocent until proven in a court of law that you carried a prescription in a container other than the one dispensed by the licensed pharmacy.
July 6, 2010, 12:05 pmOrenWithAnE says:
Also, it stands to reason that if Congress can ban possession of a substance outright, it can likewise ban its possession without proper identification.
July 6, 2010, 12:18 pmMike M. says:
“Any person who shall pass, attempt to pass, enforce, or attempt to enforce a law pertaining to the posession of firearms or ammunition not enacted by the Congress of the United States shall be imprisoned for not less than three nor more than ten years. Any State or local government whose employees are convicted under this statue shall be ineligible to receive Federal law enforcement assistance for three years.”
Problem solved.
July 7, 2010, 10:11 amsofa says:
Many gun laws are cited in the comments. They are all illegal and repugnant to the COnstitution.
Read the law: “the right of the people to keep and bear arms shall not be infringed”.
Unalienable Rights. If you don’t grasp that, then you are not an American. Really.
(sorry about how many of you were miseducated by communists apperatchiks.)
“–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
July 7, 2010, 10:35 pm