JURIST Contributing Editor Stephen Halbrook, Counsel for the National Rifle Association in the case of Messerschmidt v. Millender, argues that the police violated clearly established gun ownership rights in seizing the guns of all those present within the searched premises without verifying that the suspect was among those persons…

In Messerschmidt v. Millender, the victim of an assault gave the police photographs of the assailant and the black shotgun with a pistol grip he used in the assault. She also said that the assailant “might” be hiding at the house of Augusta Millender, who had been his foster mother years before. Police obtained a general warrant to seize all firearms from the Millender residence, claiming to the magistrate that the assailant actually lived there and not relating that 10 people resided in the house.

An amici curie brief was filed by the National Rifle Association and the California Rifle and Pistol Foundation arguing that the warrant and search violated clearly established rights under the Second Amendment, which guarantees the right to keep and bear arms, as well as the Fourth Amendment, which requires probable cause to seize things that must be particularly described.

When the search took place in 2003, it was clearly established that possession of firearms by residents of a house gave rise to no enhanced probable cause that would loosen the particularity requirement. No “automatic firearm exception” exists to the Fourth Amendment; a prior case, Florida v. JL, the US Supreme Court had already held warrantless searches to be unlawful in such a situation.

An even earlier case, Staples v. United States, the Court held that authorization to seize all firearms flies in the face of the fact that “owning a gun is usually licit and blameless conduct. Roughly 50 percent of American homes contain at least one firearm of some sort.”

The warrant here authorized a night search, similar to typical no-knock warrants. In Gould v. Davis, the US Court of Appeals for the Fourth Circuit rejected a qualified-immunity defense for obtaining a no-knock warrant based on the mere presence of firearms in a house — “If the officers are correct, then the knock and announcement requirement would never apply in the search of anyone’s home who legally owned a firearm. This clearly was not and is not the law, and no reasonable officer could have believed it to be so.”

In United States v. Bates, US Court of Appeals for the Sixth Circuit held that “[e]vidence that firearms are within a residence, by itself, is not sufficient to create an exigency to officers when executing a warrant.” More recently, in Bellotte v. Edwards, the Fourth Circuit rejected qualified immunity regarding a no-knock warrant based on the residents of a house having permits to carry concealed firearms. “It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act.” The court further noted that the officers admitted that “most people in West Virginia have guns.”

In obtaining the warrant in Millender to seize all firearms in what they knew to be Millender’s residence and other non-suspects, and without taking reasonable steps to verify that the suspect might actually be there, the officers violated clearly-established rights.

The Second Amendment provides that “the right of the people to keep and bear arms, shall not be infringed.” District of Columbia v. Heller invalidated a handgun ban with the explanation: “[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.”

General warrants are to be particularly condemned regarding constitutionally-protected property, mere possession of which cannot give rise to probable cause to search. As the Supreme Court explained in Zurcher v. Stanford Daily: “Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.” As applied in that case, this meant: “Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.'”

Given that “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books,” Stanford held it to be an invalid general warrant. In so doing, the Court noted that the First, Fourth and Fifth Amendments are “closely related, safeguarding not only privacy and protection against self-incrimination but ‘conscience and human dignity and freedom of expression as well.'”

A similar statement could be made about the First, Second and Fourth Amendments, in that the Heller Court explained: “it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”

Given that the search here took place before this Court’s 2008 decision in Heller, petitioners might suggest that the right to keep and bear arms, with attendant restrictions on search warrants, would be clearly established only in post-Heller cases. This would ignore the clear text of the Second Amendment as well as prior decisions of the Court recognizing the rights therein. See, for example, United States v. Verdugo-Urquidez, holding that “‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, … refers to a class of persons who are part of a national community,” and Planned Parenthood v. Casey, which refers to “the specific guarantees elsewhere provided in the Constitution [such as] … the right to keep and bear arms.”

Even without any constitutional recognition, lawful firearms are and have always been widely possessed in American homes, rendering a general warrant to seize all of them from all residents, none of which was a suspect in anything, violative of clearly established rights.

Stephen Halbrook, author of the NRA amicus brief in Millender, is author of The Founder’s Second Amendment: Origins of the Right to Bear Arms, and related books and articles. He has argued numerous constitutional issues in federal courts nationwide, including the US Supreme Court. In addition to his legal education, Halbrook holds a PhD in Philosophy from Florida State University.

Suggested citation: Stephen Halbrook, Gun Ownership Rights Violated in Messerschmidt v. Millender, JURIST – Hotline, Dec. 16, 2011, http://jurist.org/hotline/2011/12/stephen-halbrook-gun-rights.php.