Gray areas

Sebastian posted a very important piece about what MAIG is up to. It’s important stuff but that is his domain and I don’t have the time to get up to speed on MAIG enough to contribute anything of importance to his analysis. But I do want to outline a thought experiments a point from his post brought up:

Require REAL ID compliant identification for all gun purchasers. Those in non-complying states, which are many, will no longer be permitted to buy firearms.

If a person is walking down the street with no suspicious behavior or other reasonable cause to detain that person they are not allowed to demand identification, correct? People go jogging without ID all the time right? The police don’t stop you and demand, “Papers!” in this country. I’m pretty sure that is unconstitutional.

Most states have no laws against open carry and the Second Amendment may even guarantee that as a specific enumerated right.

Therefore, you must be allowed to openly carry a firearm without carrying identification. The police must presume someone is innocent until they have probable cause to believe you are a suspect in a crime or have intent to commit a crime. Right?

If the police cannot demand identification from a person for engaging in what appears to be a legal activity then a private citizen cannot do that either, correct? And for the legislature to demand a private citizen do that as a proxy for the police would be unconstitutional as well, correct?

So when a person, who appears to be of legal age, walks into a store and buys some ammunition can the store owner be compelled to demand identification? If so, then what is the difference that enables this?

Taking this one step further, change the ammunition purchase to a firearm purchase.

At what point did a threshold get crossed and what is the constitutional principle that allowed the legislature to compel a private citizen to demand ID for someone apparently engaging in a specific enumerated right?

11 thoughts on “Gray areas

  1. In Texas, if I am carrying (concealed – only option) not only must I identify myself; I actually have to show my Concealed Handgun License.

    It doesn’t matter if I’m doing anything wrong or not, doesn’t matter if I’m doing anything suspicious or not– because the state has granted me “permission” to exercise my right I must show identification.

  2. “At what point did a threshold get crossed”? A long long time ago.
    An interesting perhaps criminal character called Murph the Surf
    (Jack Roland Murphy – a movie called Murph the Surf starred Robert Conrad, Burt Young, and Don Stroud as Murphy)
    in Miami used to get harrassed by police demands to prove his draft registration (in the mid 1960’s with Vietnam in progress) by producing his draft cards while in his bathing suit on Miami Beach. I very much doubt he was the only one though likely the only one so famous as to make the police blotter news for failure to produce his draft card on police demand.

  3. For runners or bicycle riders in particular, RCW 46.61.021 (3) states all we’re required to do in Washington is provide our name, address, and sign an acknowledgement during a traffic infringement. So if they stop you for reasons other than traffic infringement, i.e. probable cause and request ID that you don’t have, I don’t know how that would play out. Failure to provide ID to a law enforcement officer is a misdemeanor in this state. I generally don’t carry “real” ID with me when I’m out running/riding, so I have to exercise this if I get stopped for any reason.

    For what it’s worth, don’t try this in Renton, those cops apparently don’t know anything about the previously mentioned RCW section, and will detain you.

  4. And yet the same party — and MAIG is fairly partisan — would never, never, never require RealID to exercise your right to vote.

  5. Correction to previous message: Failure to follow directions of the law enforcement officer is covered by RCW 46.61.020 (misdemeanor) which is what they usually ping runners/riders for when they don’t have ID, also relates to traffic infringements, and if you actually have a driver’s license you can take it to court and have to show it to them.

  6. Kris, RCW 46.61.020 (Washington State for others not necessarily following closely) applies to “any person while operating or in charge of any vehicle”. I know driving is considered a privilege and you must show your drivers license on demand. So is carrying concealed. This is why I avoided those scenarios in my little thought experiment.

    A Federal Judge in GA may have ruled that open carry of a firearm constitutes reasonable suspicion, but a Federal Judge in NM has ruled just the opposite.

    I was unable to find any Idaho law requiring you to have identification with you. If you do not have your drivers license with you while driving you can be charged with driving without a license but if you can produce it in court and demonstrate it was valid at the time you were caught there is no penalty.

    The scope of the situation where my thought experiment is applicable may be reduced but it appears to me to still be valid in many jurisdictions.

  7. Some states just change the charge to driving without physical possession of a license in cases where you were driving but did not have the license on your person. Most states have laws making a misdemeanor. Since they can’t say you weren’t qualified to drive as the state certified, they had to find a way to still levy the same fine. Most did.

  8. Actually in many states you are legally required to ID yourself upon police request.

    IIRC in many of those states you must ID yourself upon request, but that does NOT mean you must provide a DL or other form of physical ID. What it means is that you must provide basic identifying information to the officers (full name, DOB) If I were legally required to provide ID upon request then it would effectively be a crime to go out in public without some form of official state ID.

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