“Armed and Dangerous” a Half Century Later: Today’s Gun Rights Should Impact Terry’s Framework

By Alexander Butwin

Over fifty years ago, in Terry v. Ohio, the U.S. Supreme Court established a two-part framework in which police officers may, without a warrant, stop and search an individual for weapons without violating the Fourth Amendment’s protections against unreasonable searches and seizures. Officers must (1) suspect that criminal activity has occurred, or will soon occur, and (2) have a reasonable fear that the individual is “armed” and poses a threat to the responding officers or to others—i.e., “dangerous.” The second prong’s exact meaning is disputed and has created a split among the circuits as to whether merely being “armed” inherently makes a gun carrier “dangerous” and thereby justifies a search.

This Note examines how various courts have approached the issue, analyzes the split among these approaches, and ultimately argues that, in light of the significant developments in gun rights, state gun laws should dictate Terry’s interpretation. Because gun rights are considerably more expansive today than they were back in 1968, an individual carrying a firearm, without more, should be insufficient to justify a search under the Fourth Amendment in states that allow their citizens to publicly carry firearms.