Will Bruen Kill Cops? Probably Not. But Officer Safety May Kill Bruen.

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

As many are deeply familiar, New York State Rifle & Pistol Association, Inc. v. Bruen left many commenters confused on what kinds of gun regulations pass constitutional muster. Indeed, the confusion extended to even the proper method that judges should use to determine what kinds of regulation are allowed. The Court’s recent decision in United States v. Rahimi did little to resolve the uncertainty. Indeed, some commentators think Rahimi was in fact a polite mea culpa, recognizing that Bruen—or at least Justice Thomas’s understanding of that case—is not practically workable.

Much has been written about how the Bruen framework will or will not impede various statutory gun laws. But what has gone mostly unnoticed is how Bruen will affect a body of unwritten law—the criminal procedures authorizing police officers to disarm citizens for the officers’, and the public’s, safety. There is simmering tension, we contend, between the post-Bruen Second Amendment and the Fourth Amendment.

The Fourth Amendment commands that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” Through a number of cases, including Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California, the Court has determined that the Fourth Amendment allows law enforcement to frisk ordinary individuals for weapons, when officers reasonably suspect that the individuals may be engaged in criminal activity and may be armed. This has been understood as a low bar for a rather high intrusion on individual privacy. But, the Court has held, this is justified by the importance of officer safety and, critically, the dangerousness of firearms.

This creates a doctrinal logjam between the Second and Fourth Amendments: Are firearms, as Bruen teaches, fundamental bulwarks of individual and societal liberty? Or are they, as the Fourth Amendment case law says, so inherently dangerous that their mere presence constitutes a regulable threat to the safety law enforcement?

Something has to give. If the Court wishes to preserve officers’ power to disarm for the sake of public safety, any plausible doctrinal path to that conclusion would appear to also authorize much broader gun regulation. The alternative is to bite the bullet and curtail the police’s power to disarm—which would, the Court has repeatedly claimed, seriously endanger officers’ lives. In our work-in-progress we explore this tension and its implications for the individual right to firearms and the constitutional limitations on police conduct.

Putting on our prediction hats, we think that the Court is unlikely to hold that Terry frisks are unconstitutional. The Court has emphasized over and over the importance of ensuring officer safety in the course of their patrolling duties, and that when officers are in contentious interactions with armed individuals they are at special risk. The important question then is what will be the reasoning to render Terry stops and frisks within the scope of Bruen.

Perhaps individuals who are reasonably suspected of committing a crime fall under Heller’s exception for “dangerous” persons. But reasonable suspicion is among the lowest of evidentiary standards. So if that’s the reasoning, the government’s power to disarm for dangerousness is rendered quite broad. Moreover, Rahimi probably requires greater process than a patrolling officer’s reasonable suspicion.

Maybe police business is special in some way. Maybe anywhere a public official goes becomes a “sensitive place,” akin to a courthouse. In such places, per Heller, guns may be forbidden. But this theory would authorize disarmament far beyond Terry. After all, the U.S. Marshals do not need reasonable suspicion of a crime to disarm visitors to a federal courthouse.

Suppose it is instead the dangerousness of the geographic areas that officers patrol that justifies disarmament under Terry. Those areas, of course, remain dangerous to civilians when no officer is present. Could lawmakers therefore forbid the carrying of firearms in high-crime neighborhoods? What about carrying them during contentious one-on-one interactions? This sort of logic ultimately risks authorizing broad gun regulations of the kind struck down in Heller and McDonald.

We are left where we started: confused about Bruen. Perhaps Rahimi is really the best guide—the strongest reading of Bruen is unworkable and must be softened. And it very well might be the Fourth Amendment, and the Court’s commitment to officer safety, that makes this pellucid.