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I previously posed the question of whether the exercise of a constitutional right can trigger reasonable suspicion or probable cause. Owning a firearm is a constitutional right. Can a person exercising that right (just having a gun, not brandishing it) provide probable cause or reasonable suspicion?

The Fourth Circuit recently addressed a similar issue–whether open carrying a firearm in a place where that is permitted by law generates reasonable suspicion. The court said no in United States v. Black.

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen. Stat. §§ 14-415.10 to 14-415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. Additionally, even if the officers were justified in detaining Troupe for exercising his constitutional right to bear arms, reasonable suspicion as to Troupe does not amount to, and is not particularized as to Black, and we refuse to find reasonable suspicion merely by association.

The Times suggests that some in the White House feared this, and that is why the President chose to enforce the law, but not defend it.

When President Obama decided that his administration would no longer defend the Defense of Marriage Act in court, he was presented with an obvious question with a less obvious answer: Would he keep enforcing a law he now deemed unconstitutional?

A debate in the White House broke out. Some of his political advisers thought it made no sense to apply an invalid law. But his lawyers told Mr. Obama he had a constitutional duty to comply until the Supreme Court ruled otherwise. Providing federal benefits to same-sex couples in defiance of the law, they argued, would provoke a furor in the Republican House and theoretically even risk articles of impeachment.

Two years later, that decision has taken on new prominence after Chief Justice John G. Roberts Jr. accused Mr. Obama from the bench on Wednesday of not having “the courage of his convictions” for continuing to enforce the marriage law even after concluding that it violated constitutional equal protection guarantees. The chief justice’s needling touched a raw nerve at the White House. “Continuing to enforce was a difficult political decision,” said an aide who asked not to be identified discussing internal deliberations, “but the president felt like it was the right legal choice.”

It’s funny. Today a student asked me if the President could be impeached for failing to defend the law and I kinda chuckled at his question. Is failing to defend a law violating the “take care” clause in the circumstance where he is still enforcing it? Probably not.

Some at the Justice Department argued that the administration should continue to defend the law. But Attorney General Eric H. Holder Jr. decided the law did not meet the higher standard. He talked the issue through with Mr. Obama, who once taught constitutional law at the University of Chicago, and the president agreed. They would no longer defend the law against court challenges.

But administration lawyers researched the matter and concluded that the president should still enforce it while the courts deliberated. Even then, not every lawyer agreed. One Justice Department lawyer thought the administration should refuse to enforce the law as well.

Of course, if the President failed to enforce it, and Edie Windsor got her tax refund, there would be no suit.

“I’m sure there are people in our community who would agree with the chief justice that the president should go farther and not enforce” it, said one leader in the fight forsame-sex marriage, who declined to be named while the case was pending. But leaders in the fight came to accept the decision “because without enforcement, there’s no means to challenge the law” in court.

If the President doesn’t enforce the law, then it goes into some bizarre state of limbo.

I’m looking forward to the Windsor opinion to see what the Court does here.

The President seemed surprised that the post-Newtown momentum (for lack of better word) to advance gun control laws has faded.

“The notion that two months or three months after something as horrific as what happened in Newtown happens and we’ve moved on to other things? That’s not who we are. That’s not who we are. And I want to make sure every American is listening today. Now, I want to make sure every American is listening today. Less than a hundred days ago that happened. And the entire country was shocked, and the entire country pledged we would do something about it and that this time would be different. Shame on us if we’ve forgotten. I haven’t forgotten those kids. Shame on us if we’ve forgotten.”

He’s wrong. That’s exactly who Americans are. Passing laws in the heat of the moment, with passions aflame, is bad policy. Waiting till tempers cool, and thinking things through, is much more beneficial. Laws never go into effect right away (you have to pass laws to find out whats in them nowadays). The President certainly knows that. An immediate law would provide no immediate relief. Now, with time (barely 100 days) we see that when people have had a chance to reflect, and the President’s desired laws are no longer popular.

The President understands the power of urgency very well. He knew that if he did not pass the Affordable Care Act when he did, he never would. The opposition and unpopularity did not deter him. He will likely try to stir up passions for his laws again.

Does anone else think its odd that WaPo was able to talk to the person who works at the Starbucks JGR munches at, and HuffPo talked the barber who crops the Chief’s bob?

Washington is a horrible place.

First:

Roberts usually uses a credit card to buy his morning coffee at his local Starbucks in suburban Maryland.

But on Tuesday, when he needed to be extra sharp for the arguments that day over California’s ban of same-sex marriage, he had to pay in cash.

Seems someone had gotten his credit-card numbers, he told the cashier, and he was obliged to cancel the card.

Second:

Roberts was overheard by The Huffington Post making a similar claim at a D.C. barber shop on Wednesday, noting that the theft had apparently originated from a suspect in Kentucky.

It’s unclear why the chief justice felt the need to explain his reason for paying in cash.

Seriously. And no one could get the source of the ObamaCare leak?

On that note, I will be posting a preview of my book next week talking about the source of the leak. Stay tuned.

Fascinating inside scoop from National Journal: If the Republicans took the Senate in 2012, McConnell was prepared to repeal ObamaCare through the reconciliation process:

And while McConnell thought calling the mandate a tax was “a rather creative way” to uphold the law, it also opened a new front in his battle to repeal it.

McConnell, a master of byzantine Senate procedure, immediately realized that, as a tax, the individual mandate would be subject to the budget reconciliation process, which exempted it from the filibuster. In other words, McConnell had just struck upon how to repeal Obamacare with a simple majority vote.

The Kentucky Republican called a handful of top aides into his office and told them, “Figure out how to repeal this through reconciliation. I want to do this.” McConnell ordered a repeal plan ready in the event the GOP took back control of the Senate in November — ironic considering Democrats used the same process more than two years earlier in a successful, last-shot effort to muscle the reforms into law.

In the months that followed, top GOP Senate aides held regular strategy meetings to plot a path forward. Using the reconciliation process would be complicated and contentious. Senate rules would require Republicans to demonstrate to the parliamentarian that their repeal provisions would affect spending or revenue and Democrats were sure to challenge them every step of the way. So the meetings were small and secret.

“You’re going in to make an argument. You don’t want to preview your entire argument to the other side ahead of time,” said a McConnell aide who participated in the planning. “There was concern that all of this would leak out.”

By Election Day, Senate Republicans were ready to, as McConnell put it, “take this monstrosity down.”

“We were prepared to do that had we had the votes to do it after the election. Well, the election didn’t turn out the way we wanted it to,” McConnell told National Journal in an interview. “The monstrosity has … begun to be implemented and we’re not giving up the fight.”