Adams v. Williams, 407 U.S. 143 (1972)

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.

My views have been stated in substance by Judge Friendly, dissenting, in the Court of Appeals. 436 F.2d 30, 35. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Conn.Gen.Stat.Rev. §§ 295, 29-38. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer’s tip on the narcotics. Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

Id. at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to "possessory offenses" is a serious intrusion on Fourth Amendment safeguards.

If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows "that criminal activity may be afoot."

436 F.2d at 39, quoting Terry v. Ohio, supra, at 30.

1. App, 997.

2. Terry v. Ohio, 392 U.S. 1 (1968), makes it clear that a stop and frisk is a search and seizure within the meaning of the Fourth Amendment. When I use the term stop and frisk herein, I merely intend to emphasize that it is, as Terry held, a lesser intrusion than a full-scale search and seizure.

3. In Sibron v. New York, 392 U.S. 40 (1968), the Court held that the action of the policeman could not be justified as a stop and frisk. In Peters v. New York, 392 U.S. 40 (1968), the Court sustained the validity of a search and seizure by holding that it was incident to a legal arrest.

4. Terry v. Ohio, 392 U.S. at 29; Sibron v. New York, 392 U.S. at 64.

5. The fact that the respondent carried his gun in a high-crime area is irrelevant. In such areas, it is more probable than not that citizens would be more likely to carry weapons authorized by the State to protect themselves.

6. See Conn.Gen.Stat.Rev. § 29-35.

7. Connecticut permits possession of certain narcotics under specified circumstances -- e.g., pursuant to a doctor’s prescription. See Conn.Gen.Stat. Rev §§ 19-443, 19-456(c), 1481.

8. The Court virtually ignores the requirement that the suspect be dangerous, as well as armed. Other courts have followed Terry more closely. See, e.g., Commonwealth v. Bourke, 218 Pa.Super. 320, 323, 280 A.2d 425, 427 (1971); Commonwealth v. Clarke, 219 Pa.Super. 340, 343, 280 A.2d 662, 663 (1971); Finley v. People, 176 Colo. 1, 488 P.2d 883 (1971). See also State v. Goudy, 52 Haw. 497, 505, 479 P.2d 800, 805 (1971) (Abe, J., dissenting).

9. The Court appears to rely on the fact that the existence of the gun corroborated the information supplied to the officer by the informant. It cannot be disputed that there is minimal corroboration here, but the fact remains that the officer still lacked any knowledge that respondent had done anything illegal. Since carrying a gun is not per se illegal in Connecticut, the fact that respondent carried a gun is no more relevant to probable cause than the fact that his shirt may have been blue, or that he was wearing a jacket. Moreover, the fact that the informant can identify a gun on sight does not indicate an ability to do the same with narcotics. The corroboration of this one fact is a far cry from the corroboration that the Court found sufficient to sustain an arrest in Draper v. United States, 358 U.S. 307 (1959).