Armed and Not Dangerous? A Mistaken Treatment of Firearms in Terry Analyses

Beginning with the Supreme Court’s decision in District of Columbia v. Heller in 2008, federal constitutional law has expanded to recognize constitutional protections for the individual possession of firearms. These new protections have profoundly affected Fourth Amendment law as well, as seen in the two-pronged analysis for conducting an investigatory stop pursuant to Terry v. Ohio. Particularly, police officers’ ability to use the first Terry prong to stop a person on suspicion of carrying an illegal firearm has been greatly weakened, and their ability to protect themselves from armed, suspected criminals using the second Terry prong has also been weakened, as the “blanket assumption” that those who carried firearms were dangerous has begun to crumble.

This Note analyzes the soundness of this trend towards treating “armed and dangerous” as two separate requirements in a Terry analysis. Wilkins’s main thesis is simple—that this trend is a horrible mistake. He argues that treating “armed and dangerous” as two separate requirements misinterprets the Supreme Court’s treatment of firearms and the “armed and dangerous” standard in Terry and other contexts, mistakenly uses state criminal law as a measure for dangerousness, and ignores the simple fact that guns are dangerous instruments used to kill people, including police officers.