Applying Social Norms Theory and the Vienna Convention on the Law of Treaties 1969 to National Open Carry
PART 3. Introduction
1. Extrapolating a New Precedent on Open Carry in Intrastate Travel for Open Carry in Interstate, Nautical, and Maritime Travel
Citing excerpts from Matthew A. St. John v. David McColley and The Six Unknown Officers of the Alamogordo Department of Public Safety, U.S. District Court for the District of New Mexico (Santa Fe), No. 08-994 BDB/LAM (September 8, 2009) (a case for open carry in public places):
(1) lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention.
(2) individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
(3) United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), (The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure. In Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that he was carrying a gun. Id. at 214. Officers did so even though no applicable law prohibited Ubiles from carrying a firearm during the celebration. Id. at 218. Holding that the search violated Ubiles’ Fourth Amendment rights, the court noted that the situation was no different than if the informant had told officers “that Ubiles possessed a wallet . . . and the authorities had stopped him for that reason.” Id. Nor, the court continued, could the officers rely on the fact that Ubiles possessed the weapon while in a crowd. Id. at 219. “[Otherwise], citizens farming under the open skies of Washington or Vermont would generally have greater Fourth Amendment protections than their compatriots bustling to work in Manhattan or Boston. As a general proposition of constitutional law, this cannot be so . . . .” Id.
(4) The Tenth Circuit has also dealt with this question. In United States v. King, 990 F.2d 1552 (10th Cir. 1993) the Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity. In King, an Albuquerque police officer seized and searched King when, concerned that King’s honking would cause an accident, he approached King’s vehicle and observed a loaded firearm under King’s thigh. Id. at 155. Recognizing that King was allowed to carry a loaded, concealed firearm in his vehicle under New Mexico law, the court explained that—in light of the legality of King’s actions—permitting such detentions would render the Fourth Amendment functionally meaningless:
In a state such as New Mexico, which permits persons to lawfully carry firearms, the government’s argument [that the officer’s investigatory detention of defendant was justified by concern for his safety and the safety of bystanders] would effectively eliminate Fourth Amendment protections for lawfully armed persons. Moreover, the government’s “reasonableness” standard would render toothless the additional requirement that the scope and duration of detention be carefully tailored to its underlying justification. For example, if a police officer’s safety could justify the detention of an otherwise lawfully armed person, the detention could last indefinitely because a lawfully armed person would perpetually present a threat to the safety of the officer. King, 990 F.2d at 1559 (internal citations and quotations omitted).
Defendants nonetheless seek to rely on King in asserting that, if Mr. St. John’s seizure was not justified by reasonable suspicion, it was at least permissable as part of Defendants’ performance of their role as community caretakers. Under the community caretaker exception, officers may seize an individual in order to “ensure the safety of the public and/or the individual.” Id. at 1560. Such stops are permissible when “articulable facts indicate the need to assure the safety of the public or the individual being detained.” U.S. v. Luginbyhl, 321 Fed.Appx. 780, 783 (10th Cir. April 16, 2009) (unpublished); King, 990 F.2d at 1560.
Defendants’ reliance on King is misplaced. Though the King court ultimately found that King’s detention was non-investigatory and could, thus, be justified under the officer’s community caretaker function while he advised King of the hazardous conditions that his honking created, the King rationale does not apply here because Defendants had no legitimate reason to engage Mr. St. John in the first place. Id. (“In short, while the safety of police officers is no doubt an important government interest, it can only justify a Fourth Amendment intrusion into a person’s liberty so long as the officer is entitled to make a forcible stop.”) (emphasis added)).
More broadly, Defendants’ actions are not protected by the community caretaker exception because they had no basis for believing that anyone’s safety was at risk. Defendants simply received a report that an individual was carrying a firearm in a location where individuals could lawfully carry firearms. They received no indication that Mr. St. John was behaving suspiciously or in a threatening manner. When Defendants arrived, they found Mr. St. John sitting peaceably in the Theater preparing to watch a movie. They had no basis for believing that Mr. St. John’s use of the weapon was likely to become criminal, cause a public disturbance or pose a threat to safety. Nor did anyone seem particularly alarmed by Mr. St. John’s weapon. Indeed, the record does not reveal that anyone—including the lone customer who spoke to Officer McColley about Mr. St. John’s gun—was even concerned enough to have left the Theater as a result.
In sum, Defendants had no reason for seizing Mr. St. John other than the fact that he was lawfully carrying a weapon in a public place. Because New Mexico law allows individuals to openly carry weapons in public—and Mr. St. John had done nothing to arouse suspicion, create tumult or endanger anyone’s well-being—there were no articulable facts to indicate either criminal activity or a threat to safety. Accordingly, Defendants’ seizure of Mr. St. John violated his Fourth Amendment rights.
2. St. John v. David McColley and Article 64 Emergence of a New Peremptory Norm of General International Law (“jus cogens”) of the Vienna Convention on the Law of Treaties 1969
Citing Eric A. Posner, Law and Social Norms, Harvard University Press, Cambridge, Massachusetts and London, England (2002) at 32–33:
Government actors can serve as norm entrepreneurs. Authoritarian leaders have often succeeded in creating holidays, memorials, and even ideologies about the nation that force people to take a public position that is consistent or inconsistent with the goals of the authorities. When people pool around the newly minted signals, the government has succeeded in its norm entrepreneurship. But governments do not always succeed, and governments in democracies often fail because leaders must always satisfy their followers. Nancy Reagan’s “Just Say No” campaign against drugs was a failure. As often happens with failed norm entrepreneurship, the result was ridicule, not conformity. Instead of leading, politicians in democracies must conform to signaling equilibriums or risk expu8lsion from office. The officikal who argued in favor of communism in the 1950s was not sending the right signal; nor is the official today who says that people should be permitted to burn flags.
From a normative perspective, it will often be desirable for the state to modify signaling equilibriums[.] … The cooperation game can produce two kinds of collective goods. The internal collective good consists of the mutual gains that two people obtain when they match up and cooperate. Notice that the actions that serve as signals are not themselves valuable; they are valuable only insofar as they facilitate cooperation. The externalcollective good consists of any value (positive or negative) that is, as a side effect, produced by the fact that many people engage in identical signaling behavior, whether it be separating or pooling. … It is important to recognize that the existence of one signal … and the existence of another [signal] … can be arbitray, so in theory a bad equilibrium, one that produces external collective bads, can collaspse ;and be replaced with a good equilibrium without the loss of internal collective goods.;
… When a law changes an equilibrium, it has two separte effects. The first effect t is behavioral: the law affects the actions people take. If the law taxes an action thast has served as a signal, and as a result people engage in that action less frequently and substitute some other action, then the law has influenced their behavior. It has affected the amount of signaling and the kinds of signals that are issued. The second effect is hermeneutic: the law changes beliefs that people have. If the taxation of a signal results in the collapse of a separating equilibrium, then people will no longer infer that a person who sends that signal belongs to the good type.
Citing Michael Hechter and Karl-Dieter Opp (editors), Social Norms, Russell Sage Foundation, New York, (2001), Chapter 1: Sociological Perspectives on the Emergence of Social Norms, at 6–7, and applying it to the emergence of National Open Carry of a handgun worn as a sidearm in intrastate, interstate, nautical, and maritime travel:
How Do Patterns of Behavior Become Normative? It has been argued that once certain behaviors are adopted they become associated with a sense of oughtness, but which behaviors?
One possibility is that, indeed, any action that is observed comes to be expected. Because individuals value certainty, they will be upset by deviation from what is usual. Thus all behaviors that are reasonably frequent or consistent will become normative. If this is the case, then norms aye synonymous with what is typical—there is no distinction between the term as referring to patters of behavior and as referring to a rule. To the extent that this is so, one might reasonably wonder whether the concept is useful. Surely it would be more straightforward simply to focus on behavior rather than complicate matters by bringing in notions of norms.
 George C. Homans, The Human Group, New York: Harcourt, Brace. (1950), at 122, 266, and 412; see also Russell Hardin, One for All: The Logic of Group Conflict, Princeton: Princeton University Press (1995), at 60–65, for a discussion of the is-ought relationship).
 Karl-Dieter Opp, The Evolutionary Emergence of Norms, British Journal of Social Psychology 21(2): 139–49 (1982).
 Plaintiff’s Note: Applying a State’s Open Carry law nationally with the Open Carry Movement is becoming normative by resurrecting a long dormant constitutional norm so that it can emerge as a “new” social norm. This is evidenced by the online Websitge: http://OpenCarry.org. Their moto is “A Right Unexercised is a Right Lost”; Political comments: “There’s even an organization whose raison d’etre is promotion of open carry . . . OpenCarry.org. These are the shock troops of the gun lobby. And, they are not going away.” Ceasefire New Jersey Director Brian Miller, NJ.com, August 20, 2009; “The anti-gun right’s lobby furor over the presence of guns near the president . . . is an attempt to somehow reverse the normalization of guns.” Professor Brandon Denning, Cumberland School of Law (Birmingham, AL), Christian Science Monitor, August 8, 2009.
It may be, however, that there is something different about behavior that is merely typic al and that which has an additional normative component. … There seems to be at least an intuitive distinction between behavior that is merely habitual and that which is normative.
Why is it that some behaviors are associated with a stronger sense of oughtness than others? One possibility is that the salience of a behavior—for example, the frequency with which it is observed—matters. Another is that actions that have greater effects on others may be more likely to be subject to disapproval than those that create onlyh minimal externalities. … Finally, it may be that when individuals have more intense personal preference for a behavior, the perceived negative consequences of others’ deviance are greater.
 Karl-Dieter Opp, The Evolutionary Emergence of Norms, British Journal of Social Psychology 21(2): 139–49 (1982).
Scholars have suggest at least some potential mechanisms through which behavior that is typical may be distinguished from that which is normative. Although explanations have been proposed, however, they have not been fully developed. The ego-centered approach, does not enable us to distinguish between those behaviors that become normative and those that do not.
At What Point Do Individuals Engage in New Behaviors? This weakness in the argument points to another challenge—identifying the points at which, and the reasons that, norms change. How do individuals weigh the oughtness of an existing norm against the interests that motivate new behaviors? Maqny arguments of the structure described here predict initial behaviors based on the assumption that individuals try to advance their own welfare. In seeking to explain continued obedience, they then shift to the assumption either that individuals internalize notions of oughtness or that they act from a desire for social approval. New norms are thought to emerge when the costs of compliance with existing norms become too high relative to the rewards. There often, however, is no explanation of how to weigh concerns about the costliness of the normative action (which encourages experimentation with new strategies) aginst concerns with morality or social opinion (which reinforce the status quo). Presumably, this balance shifts when social change occurs. Without further specification, however, we have no means of determining the circumstances under which individuals will simply follow the existing norm or will begin to explore other possibilities. Thus we are left to wonder when new norms will emerge and how long they will persist.
 Necessitas facit licitum quod aliàs non est licitum (Necessity makes a thing lawful, which otherwise is unlawful). Necessitas non habet legem (Necessity Lath no law). Necessitas quod cogit, defendit (What necessity compels to do, it defends). Necessitas sub lege non continetur, quia quod alias non est licitum necessitas facit licitum (Necessity is not bound down under law; because what in other cases is not lawful, necessity makes lawful). Necessitas vincet legem, — legum vincula irridet (Necessity will overcome the law, — baffles the restraints of law). In casu extremae necessitatis omnia sunt communia (In a case of extreme necessity everything is common). Quod necessitas cogit, defendit (What necessity forces it justifies). “This saying, but the sentence of the sage, Nothing is stronger than necessity.” Euripides (480–406 B.C.)—Helena. (A Greek tragedy) Line 560. (412 B.C.)
 See James D. Montgomery, Toward a Role-Theoretic Conception of Embeddedness, American Journal of Sociology 104(1): 92-125 (1982) for a relevant discussion.
In the Vienna Convention on the Law of Treaties 1969, Article 64 Emergence of a New Peremptory Norm of General International Law (“jus cogens”) states: (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”) then the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials; the United Nations’ Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (UN Document A/CONF.192/15); 18 U.S.C. § 926A Interstate Transportation of Firearms become void and terminates in accordance with the United Nations Universal Declaration of Human Rights; the United Nations Convention Against Corruption, the International Covenant on Civil and Political Rights; the American Declaration on the Rights and Duties of Man; the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (A/RES/53/144) (also known as the Declaration on Human Rights Defenders).