Commentators have predicted that the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago could hamper police efforts to seize guns on the street. Many police officers have understood the Fourth Amendment to permit stopping and frisking anyone who appears to possess a handgun in public. But that understanding is rooted in laws that made handgun possession a crime, the kinds of laws struck down in Heller and McDonald. The doctrinal collision that this appears to set up between the Second and Fourth Amendments will likely be less meaningful on the streets—particularly in low-income, minority neighborhoods—than commentators suggest. This is because the Fourth Amendment affords police many opportunities to dodge the collision. The aggressive forms of policing associated with gun interdiction in minority neighborhoods will likely continue, but now with added constitutional gravity. If gun rights advocates care about the fair distribution of Second Amendment rights, they should worry about the formal and practical opportunities the Fourth Amendment creates for the aggressive policing associated with firearm interdiction in poor minority communities. These advocates should make police reform and racial justice a core part of their agenda, something they have not done to date.
Nirej Sekhon, Associate Professor of Law, Georgia State University. Thanks to Russel Covey, Caren Morrison, Jonathan Todres, and Deepa Varadarjan for comments on earlier drafts.
Copyright 2018 by Nirej Sekhon
Cite as: Nirej Sekhon, The Second Amendment in the Street, 112 Nw. U. L. Rev. Online 271 (2018), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1260&context=nulr_online&preview_mode=1&z=1524245638