Episode Transcript
[00:00:00] Speaker A: Hello everybody and welcome to the next episode of the Guardian Mindset podcast here at Daigle Law Group. I'm your host, attorney Eric Daigle. I'm so happy to have you back.
Very, very humbled and honored that you'll give me your time. And as we always do on the Guardian Mindset podcast, the purpose is to give you information as quick as possible, as direct as possible, so that that will assist you in building that Guardian Mindset decision making. And today we're going to discuss a constitutional issue that affects law enfor officers every day, whether they're conducting a traffic stop, responding to a domestic violence complaint, investigating suspicious activity, or encountering someone openly carrying a firearm. We're talking about the Second Amendment and I get a lot of conversations about the Second Amendment, which has been pretty quiet. But it's not going to be quiet anymore. Things are starting to pop. For years, much of the conversation about firearms and the Second Amendment has been dominated by politics, by public safety concerns and disagreements about gun control.
But today I want to approach this discussion differently. I want to look at the Second Amendment from the perspective of the officer on the street, the supervisor reviewing the officer's action, and the police executive responsible for ensuring that department policy and training reflect current constitutional law. Because here's the challenge.
Officers are expected to enforce firearm laws, protect themselves and their communities, respect constitutional rights, and sometimes those responsibilities intersect in different ways.
The United States Supreme Court has significantly reshaped the Second Amendment jurisprudence over the past two decades, particularly since 2022. And the court's 2026 decisions have continued that development.
So we need to understand what these cases actually say, what they don't say, and how they affect police operations.
So let's start with a 2008 case called District of Columbia vs. Heller.
In 2008, the Supreme Court recognized that the Second Amendment protects an individual right to possess firearms for lawful purposes and including self defense within the home, independent of service in a militia.
This was a foundational decision because basically the Court invalidated the District of Columbia's prohibition on handgun possession in the home and its requirements that lawful firearms be rendered inoperable, preventing their immediate use for self defense. But there's another part of Heller the that officers need to understand.
The Court made clear that the right recognized under the Second Amendment is not unlimited. It identified longstanding restrictions, including prohibitions on possession by felons and restrictions in sensitive places. As measured, its opinion was not intended to call into question that language is important. Although it was not a comprehensive ruling on the constitutionality of of Every such restriction. What was the operational takeaway from Heller? The Constitution protects firearm possession, but an officer still must determine whether a particular person, firearm location or manner of possession is subject to a valid legal restriction.
The presence of a firearm by itself does not resolve that question.
We then look at McDonnell vs. Chicago 2010 case. Two years later in McDonnell vs. The City of Chicago, the Supreme Court held that the Second Amendment right recognized in Heller applied to state and local governments through the 14th Amendment. Well, you're like Eric. Why is that significant?
Well, because Heller involved the district of Columbia. McDonald established that states, counties and municipalities and their law enforcement agencies are also constitutionally bound by that protection.
For police executives, this reinforces something that should be fundamental to constitutional policing. A department's policy can create authority that the Constitution prohibits. And a state statute, even when enacted for legitimate public safety purposes, must satisfy constitutional requirements.
Now we arrive at one of the Most significant modern Second Amendment cases. New York State Rifle and Pistol association versus Bruin. This is a 2022 case where New York required applicants seeking unrestricted public carry licenses to demonstrate a special need for self protection beyond that of the general public. Well, the Supreme Court rejected that requirement. The Court recognized that the Second Amendment protects the right of ordinary law abiding citizens to carry handguns publicly for self defense subject to constitutionally permissible regulations. But Bruin did something else that may be even more important for the future of firearm laws. It changed the analytical framework used to evaluate Second Amendment challenges.
Previously, lower courts frequently applied forms of means and scrutiny, balancing the burden imposed on the constitutional rights against the government's public safety interest.
The Supreme Court rejected that approach in favor of an inquiry focused on the Second Amendment's text and the nation's historical tradition of firearm regulation.
Now this is a legal test primarily directed towards courts evaluating the Constitution of firearms restrictions. It is not a historical research exercise that officers are expected to perform during a traffic stop.
But police executives, policymakers, legal advisors, instructors need to understand it. Because the test is changing which restrictions may survive constitutional review.
Consider what that means.
A legislature may identify a serious public safety concern. It may enact a law designed to address that concern.
And the law may have substantial public support.
But those considerations standing alone, do not establish constitutionality. Under Bruin, the government may demonstrate consistency with the nation's historical traditions of firearm regulations. When the Second Amendment's plain text covers the the regulated conduct, the guardian mindset principle. We don't measure constitutional compliance simply by whether the officer's objective was reasonable or well intentioned. We examine whether the government's action were legally authorized and constitutionally permissible. That principle applies across constitutional policing, and the Second Amendment is no exception.
Lets turn to a question that officers encounter regularly.
Where can someone lawfully carry a firearm?
After Bruin, several states revisited their licensing and public carry statutes. Some created new restrictions on carrying firearms in particular locations, while others established rules concerning private property. The Supreme Court addressed an important aspect of those efforts. In its June 25, 2026 decision called Wolff v. Lope, Hawaii adopted a law that generally prohibited licensed concealed carry permit holders from carrying firearms onto private property open to the public unless the property owner provided affirmative authorization.
Think about that for a moment. A person could lawfully possess a concealed carry permit, but entering a business open to the public while armed could be prohibited unless the owner expressly authorized it.
The Supreme Court held that Hawaii's default prohibition violated the Second and Fourteenth Amendment. The Court emphasized that constitutional right to carry public carry cannot effectively be eliminated through a broad presumption against carrying on private property open to the public.
The decision did not eliminate private property rights or established that firearms must be permitted everywhere.
Property owners can still exercise lawful authority to exclude firearms and constitutionally valid location specific restrictions remain possible.
Well, what does this mean for an officer? Let's imagine a scenario. An officer receives a call from a customer who sees another individual carrying a concealed handgun in a restaurant. The individual has a valid carry permit. The business is open to the public. No threatening conduct has been reported.
What is the officer's legal authority? The answer requires more than simply identifying that a firearm is present.
The officer must consider the applicable jurisdictions law, any valid restrictions on that location, whether the property owner has prohibited firearms, and whether there is evidence of an independent offense.
A complaint involving a firearm does not automatically establish criminal conduct, but importantly, the officer should distinguish a business owner's request that someone leaves from a statutory prohibition on possessing a firearm. These are different legal standards.
What about sensitive places?
Bruton also acknowledges the restriction on carrying firearms in historically recognized sensitive places such as schools and courthouses, which they may be unconstitutionally permissible. But the Court cautioned against expanding that category so broadly that essentially every public location becomes a sensitive place for police departments. This creates a continuing obligation to track changes in state statutes and federal court decisions.
Officers should not be expected to independently resolve constitutional challenges in the field. They should, however, receive current guidance on the laws they are authorized to enforce.
By the way, supervisors should make certain that enforcement decisions are based on identifiable statute provisions and legally sufficient facts rather than assumptions about where firearms ought to be prohibited training should reinforce a fundamental distinction. Lawful firearm possession is not itself threatening conduct.
Let's examine two decisions that illustrate how the Supreme Court is distinguishing between firearm possession and the government's authority to disarm individuals under particular circumstances.
These cases are specifically and especially important for patrol officers, domestic violence investigators, narcotic officers, and supervisors in The United States vs Rahim R A H I M I the Supreme Court considered a challenge to 18 USC section 922, subsection G, subsection 8. This is a 2024 Supreme Court decision that federal statute prohibited firearm possession by individuals subject to certain qualifying domestic violence protective orders.
Rahim argued that the prohibition violated the Second Amendment. The Supreme Court rejected his what we call as applied challenge. The court concluded that when an individual has been found by a court to pose a credible threat to another person's physical safety, temporary disarmament can be consistent with the Second Amendment. The reasoning matters.
The court in this case looked at historical law as addressing individuals who threaten violence and misused weapons. It explained that historical analogies need not be identical to contemporary regulations.
The relevant question is whether the modern restriction reflects principles underlying the historical regulation tradition or regulatory tradition for officers. Rahim confirms that the Second Amendment does not categorically prevent government from temporarily disarming individuals who have been just judiciously determined to pose a qualifying threat. But it does not mean that every protective order automatically triggers a federal firearm prohibition that the officer or investigator must determine whether the particular order satisfies the application in the applicable statutory requirement.
This includes reviewing the order's terms, the notice and hearing requirements, and the specific statutory basis for the prohibition.
Let's consider the operational implications.
An officer responds to a domestic violence incident. During the investigation, the officer learns that the subject is under an active protective order and possesses several firearms. The officer needs to ask, what kind of order is it? Does it satisfy the requirements of federal or state firearms law? Is there an independent criminal offense? Does the order authorize surrender or seizure? Is there an immediate threat requiring protective action?
And if the firearm are seized, what is the lawful process for their retention or return?
These are not administrative details. They affect constitutional rights, victim safety, evidence handling, and, in my world, potential civil liability.
The next decision is United States vs Khamani H E M A N I. In June 2026, the Supreme Court addressed the federal prohibition involving firearm possession by an unlawful user of controlled substance under 18 U.S.C. subsection 922, subsection G, subsection 3.
The underlying facts involved an individual who acknowledged using marijuana several times per week and who possessed a firearm in his home, the federal government prosecuted him under the unlawful user provision.
The Supreme Court concluded that the prosecution under the circumstances presented was inconsistent with the Second Amendment. Importantly, the Court did not hold that every person who uses controlled substances has an unrestricted constitutional right to possess firearms.
The ruling addressed a particular application of the unlawful user prohibition. The Court distinguished that provisions from the statute separate language concerning persons addicted to controlled substances and left room for restrictions supported by sufficient historical justification, including appropriately individualized findings of dangerousness. The decisions in this case was unanimous, and it reinforces that the modern firearm restrictions must satisfy the constitutional framework established by Brun and clarified by Rohini.
Law Enforcement's implication well, this creates an important question for officers involved in narcotics investigations.
Let's do a hypothetical Suppose an officer discovers marijuana in a firearm during a lawful search.
Historically, some investigations may have treated evidence of unlawful drug use and firearm possession as sufficient to support a federally prohibited person charge. Following Jimene, the conclusions require more careful analysis. Investigators need to distinguish among unlawful drug use, addiction, intoxication, dangerous conduct, and other legally relevant facts.
They also need to distinguish federal firearms restrictions from independent state offenses and other federal prohibitions.
A person who possesses marijuana and a firearm may still violate other applicable laws. But Khamenei means officers and prosecutors should not absorb the evidence of periodic marijuana use alone. Establish the constitutional sustainable prosecution under the unlawful user provision.
For police supervisors, this is an important opportunity to review investigative practices.
Are officers trained to document specific facts supporting the elements of a firearm offense? Are they distinguishing evidence of use from evidence of addiction or dangerous conduct? Are investigative reports precise enough for prosecutors to evaluate the applicable statute and constitutional limitations? And our officers consulting prosecutors? When a charging decision raises a developing Second Amendment issue, these are questions that matter.
The lesson from Rimini and Khamenei is not that government has lost the authority to regulate firearms. It is that the justification for restricting an individual's constitutional right matters, and the scope of that restrictions must be supported by law.
Well, what's next? The next constitutional battleground we see it starting right now. AR15s and semiautomatic rifles I want to turn to what may become one of the most consequential Second Amendment decisions since Bruin.
On December 2, 2026, the United States Supreme Court is scheduled to hear oral arguments in two consolidated cases for Amantes vs Cook county and Grant vs Higgins. These cases involve restrictions on AR15 style and similar semiautomatic rifles, and the outcome could significantly affect firearm laws in multiple jurisdictions. The Court's official December calendar confirms that the cases will be argued together with one hour allotted for argument.
Well, let's get into understanding the legal dispute. The Veramontes case challenges Cook County, Illinois, restrictions on firearms defined as assault weapons.
The 7th Circuit upheld the restriction, relying on an earlier analysis distinguishing certain AR style rifles from firearms protected by the Second Amendment. The consolidated Grant case challenges Connecticut's assault weapons restriction.
The 2nd Circuit upheld Connecticut's law, reasoning that restrictions were consistent with the nation's historical tradition of regulating unusual dangerous weapons.
Now here's where the legal disagreement becomes particularly important.
The challengers argue that AR15 style semi automatic rifles are widely owned by Americans for lawful purposes and therefore fall within the Second Amendment's protection of arms and in common use.
The governments defends their restrictions by emphasizing the characteristics of the regulated weapons, their asserted similarity to military weapons, and the historical tradition of regulating particularly dangerous arms. The Supreme Court will have to address how these competing arguments fit within Heller, Bruen, and the Court's most recent decisions.
What is an arm in common use? Let's examine that phrase.
In Heller, the Court discussed protections for weapons commonly possessed by law abiding citizens for lawful purposes while recognizing a historical tradition of regulating dangerous and unusual weapons. But applying these principles to contemporaneous semiautomatic rifles has generated significant disagreement among federal courts.
One of the questions is whether widespread civilian ownership is sufficient to bring a particular class of firearms within the Second Amendment protection.
Another is whether a firearm's features, capabilities, or even relationship to military weapons can justify restrictions notwithstanding its civilian popularity. Those questions have enormous consequences for the legal treatment of AR15 style rifles.
We should also recognize a technical distinction.
A civilian semiautomatic AR15 is not mechanically identical to a military M16 capable of automatic or select fire operation.
Whether other similarities justifies comparable constitutional treatment is part of the legal controversy. It would be premature to suggest that the Supreme Court has already resolved that dispute.
So why do police executives need to pay attention?
If the Supreme Court determines that the challenged rifles are constitutionally protected in a manner that invalidates these prohibitions, numerous state and local restrictions may require reconsiderations.
If the Court upholds the restrictions, its reasoning could clarify the permissible scope of firearm regulations under the Second Amendment.
The impact will depend on the precise holding, the breadth of the Court's reasoning, and how the decision applies to particular statutes.
For police agencies, the practical implication may include changes in enforcement authority, criminal investigations, firearm seizures, evidence retention, and always training.
But until the Court issues its decisions, officers must operate under the currently controlling law and in allowing including applicable court orders and injunctions, the Granting of Supreme Court review does not by itself invalidate a statute. That is a very, very important distinction. Officers cannot simply disregard a law because its constitutionality is being challenged.
At the same time, police executives should ensure their personnel understand whether any court has has restricted enforcement in a particular provision.
Here's a question for supervisors. Consider this scenario. An officer encounters an individual possessing a semiotic rifle that falls within a state statutory definition of a prohibited assault weapon. The individual claims that the prohibition is unconstitutional because the Supreme Court is reviewing similar laws.
How should the officer respond?
Well, the officer should not attempt to adjudicate the constitutional dispute on the roadside. That's the first part. The officer should identify the controlling law, determine whether the facts satisfy the elements of an enforceable offense, follow the applicable department guidance, and consult a supervisor or maybe even a prosecutor when necessary.
The encounter must still satisfy the applicable Fourth Amendment standards.
An officer should not mistake a constitutional argument, even a mistaken one, for evidence of criminal intent or dangerousness. It is an opportunity to demonstrate professionalism. The guardian mindset requires officers to understand the distinction between enforcing existing laws and deciding what the law should be.
What every law enforcement officer needs to know. Let's bring all these cases together and discuss what they mean for daily police operations. Because constitutional law becomes meaningful when officers understand how it affects their decisions, I want to focus on five practical areas. Ready? Number one. First, firearm possession does not automatically establish reasonable suspicion. Imagine an officer observes someone openly carrying a handgun in a jurisdiction where open carry is generally lawful. And please be aware, I do know some of you might be listening. From states like my own state in Connecticut, where open carry is not lawful, the individual is walking along a public sidewalk. There is no threatening behavior, no reported criminal activity, and no other suspicious conduct. Can the officer stop that person simply because a firearm is visible? Well, the answer depends on the applicable law and totality of the circumstances. But the mere observation of conduct that is lawful generally cannot, without more, establish reasonable suspicion of criminal activity. This is where the Second and Fourth Amendment intersect. The Second Amendment informs whether the conduct is protected or lawful. The Fourth Amendment governs whether the officer has legal justification to detain, search, or seize the person. Officers must be able to articulate the facts and supporting their actions. A firearm may present an important officer safety consideration, but the officer must distinguish a legitimate safety concern from the legal justification required for a detention.
Let's go to number two. Second, distinguish lawful possession from dangerous conduct. A person may lawfully possess a firearm while nevertheless engaging in conduct that justifies police intervention.
Consider someone carrying a handgun who begins threatening others, pointing the weapon, or acting in a manner that reasonably suggests imminent violence. The Second Amendment does not immunize threatening or assaultive conduct. Officers should focus on behavior, context, credible threats, and the facts establishing their legal authority. And here's another very critical the authority to investigate or or temporarily secure a firearm is not the same as the authority to use deadly force. Deadly force remains governed by the Fourth Amendment objectively reasonableness standard, including Graham v. Connor, Tennessee v. Gunner, and the Supreme Court's most recent clarification in Barnes v. Felix that courts must evaluate the relevant totality of the circumstances rather than artificially limiting their analysis to the final moments before the force.
The fact that someone possesses a firearm does not standing alone establish an imminent threat justifying deadly force.
Third, firearm stops and protective searches require independent Fourth Amendment analysis. This is an area where training can become dangerously oversimplified. Officers are sometimes taught that when they encounter a firearm during a lawful detention, they automatically have the authority to frisk the person or seize the weapon.
That is too broad.
Under Terry vs Ohio, a protective frisk requires a lawful stop and reasonable suspicion that the person is armed and dangerous. Courts had disagreed in some circumstances about how lawful firearm possession affects that analysis, particularly when an officer has confirmed that the detained person is armed. For example, a Fourth Circuit en banc decision in the United States versus Robinson in 2017 adopted an approach permitting protective frisk of an armed person during a lawful traffic stop, even where the firearm possession might be lawful.
Other courts have approached the relationship between lawful possession and dangerousness differently. The important operational point is that Brun did not eliminate Terry, and Terry does not create unrestricted authority to search every armed citizen.
Officers need training on controlling circuit precedent, state law, and the facts necessary to justify a protective search.
Fourth, firearm seizures and firearm forfeitures are different legal events. Let's consider another scenario. An officer responds to a domestic violence incident and lawfully secures a firearm to address an immediate threat. What happens next?
The officer's authority to temporarily secure the weapon does not necessarily establish authority to retain it indefinitely.
Continued retention may require a warrant, statutory authorization, court order, evidentiary justification, or other recognized legal basis.
Department should have clear procedures and policies addressing documentation, notice, property rights, evidentiary holding, and firearm return.
Supervisors should understand that an initial lawful seizure may create additional legal questions if the department continues retaining property after the original justification has expired.
Fifth, police training must evolve as the law evolves. This is where I want to challenge all of you officers, police executives, and supervisors.
When the Supreme Court issues a decision like Bruun Ronan, Heminy, or Wolford? What happens inside your organization? What happens inside your agency? Does someone evaluate this decision? Does your legal advisor determine whether it affects state policy? Does the department review its firearm policies? Are supervisors briefed on the operational challenges? Are officers given examples of how the decision applies to actual calls for service?
Or does the case simply become another legal bulletin that gets distributed and forgotten? Well, I won't let that happen. Here at the Guardian Mindset podcast, you can guarantee that with training in our Path of the Guardian and our weekly updates, you will get notice Constitutional policing requires more than distributing case summaries. Officers need to understand what the law permits, what it is prohibits, and how to apply those rules under pressure. This means training must connect legal standards with decision making. It means scenario based instruction, it means supervisory enforcement, and it means policies that accurately identify enforcement authority without attempting to reproduce every criminal statute or predict every possible constitutional development.
A Final scenario the Armed First Amendment Auditor before we close, I want to connect this discussion to another issue. Agencies are increasingly encountering an individual standing outside a government building recording police activity while openly carrying a holstered firearm. The individual is verbally challenging officers, questioning their authority, and refusing to engage in a voluntary conversation.
What constitutional protections are involved?
Potentially several the First Amendment may protect recording and verbal criticism of government officials. The Second Amendment may protect lawful firearms possession and carry. The Fourth Amendment limits the officer's authority to detain, search, or seize the individual. The analysis becomes more complicated if the location is a legally restrictive, sensitive place, the firearm is carried in a prohibited manner, or the individual engages in threatening behavior.
But the presence of multiple constitutional rights does not automatically convert lawful activity into criminal conduct. An officer must identify the specific conduct that creates legal authority to intervene. And a person does not lose constitutional protections simply because they are argumentative, confrontational, or attempting to provoke an officer into making a mistake.
This is where professionalism, legal knowledge, and tactical discipline intersect. Officers must be capable of maintaining situal awareness, protecting public safety without treating the exercise of constitutional rights as misconduct. As you know, that is a central component of the Guardian mindset.
Let's wrap this all up as we close today's episode. I want to leave you with something to consider.
The Second Amendment is not simply a constitutional issue for judges, legislatures, or firearm owners. It's an operational issue for every police officer who may encounter an armed citizen. It affects traffic stops, domestic violence investigations, firearm licensing, prohibited persons investigations, searches, seizures, and use of force decisions. And the Supreme Court has made clear that the Second Amendment is is an individual constitutional right that government must respect.
But The Court has also recognized that firearms may be regulated under constitutional permissible circumstances.
Our responsibility in law enforcement is not to take sides in the political debate. Our responsibility is to understand the constitutional framework, apply the law correctly, and make sound decisions based on facts. Think about the progression of these cases. Heller recognized the individual right McDonald applied the protection to state and local governments Brune recognized public carry for self defense and established historical tradition framework. Rahani clarified the government's ability to temporarily disarm individuals found to pose qualifying threats and Khomeini addressed the constitutional limits of applying federal firearms restrictions to unlawful drug users.
Wolford reinforces the protection of lawful public carry on private property open to the public.
And Fermontes and Grant will ask the Supreme Court to address another major question concerning semiautomatic rifles. The law continues to develop for police executives. This creates an obligation to evaluate training policies and supervisory practice for officers. It reinforces the importance of understanding the difference between a firearm and a threat, between a constitutional right and a criminal offense, between lawful intervention and unjustified intrusion. The best officers are not simply those who know how to respond to danger.
They are those who recognize when intervention is legally justified, when restraint is required, and when protecting constitutional rights is itself the mission.
That's the Guardian Mindset.
[00:35:29] Speaker B: That concludes this episode of the Guardian Mindset podcast. Thank you for joining us. Before we wrap up, check out our supervisors continuing education and weekly Path of the Guardian video training for your agency or as an individual student@dlg learningcenter.com and as always, help those who need your help, protect those who need your protection, and most importantly, keep yourself and others safe. Thank you.
