Who Watches the Watchers? Congress, Jack Smith, and the Constitutional Cloak

There is something particularly uncomfortable about a prosecutor being questioned about whether the government crossed a constitutional line.

The government investigates. Congress investigates the government. And eventually, the investigator himself becomes the subject of the investigation.

That is roughly where former Special Counsel Jack Smith finds himself.

The controversy concerns an FBI investigation known as Arctic Frost, which began in April 2022 and was later folded into the investigation overseen by Smith after he was appointed special counsel in November 2022. Among other things, investigators obtained telephone records belonging to members of Congress, including numerous Republican lawmakers, during an investigation into efforts to interfere with the 2020 presidential election.

The records were generally described as toll records: information showing numbers called, numbers received, dates, times, and duration—not the substantive content of the calls. That distinction matters. 

So does something else.

The Constitution has a provision specifically designed to prevent the executive branch from using its investigative power to interfere with Congress's legislative work.

It is called the Speech or Debate Clause and it is hiding in plain sight.

So, uh, the Speech or Debate Clause. What's That?

The Speech or Debate Clause is found in Article I, § 6, cl. 1 of the United States Constitution.  It provides:

“for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

The provision is not merely a constitutional version of parliamentary courtesy.  It is a separation-of-powers provision.

The Framers understood the danger of allowing the executive or judiciary to intimidate legislators for doing the job the Constitution assigned to them. The Supreme Court has therefore interpreted the clause broadly enough to protect more than words spoken on the House or Senate floor.

In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court explained that the protection extends to acts that are an integral part of the deliberative and communicative processes by which members participate in congressional proceedings.

In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Court likewise recognized congressional investigation—including the issuance of subpoenas—as falling within the legitimate legislative sphere when Congress is exercising its investigative authority.

The principle is therefore broader than:

“Congressmen can't be sued for something they say during a speech.”

Rather, it is closer to:

“The other branches generally cannot interfere with legitimate legislative acts simply because they dislike, disagree with, or want to investigate those acts.”

That distinction becomes important when the government's investigative machinery begins examining a congressman's communications.

So, Does the Clause Protect a Congressman's Phone Records?

This is where the story gets considerably more complicated.  The answer is not automatically.

The Speech or Debate Clause does not place every piece of information belonging to a member of Congress inside a constitutional vault.

The Supreme Court's test is functional and examines whether the particular activity was a legislative act?

That question was squarely presented when the government seized Representative Scott Perry's cellphone during the January 6 investigation.

In In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023), the D.C. Circuit held that the Speech or Debate Clause required a fact-specific examination of Perry's communications. Some communications concerning legislative activity—including communications with other members about the 2020 election-certification vote—could be protected. Other communications were not automatically protected merely because Perry was a member of Congress.

That case is important because it prevents an overly simplistic argument.  So, the constitutional question isn't:

“Was the person a member of Congress?”

But is:

“What was the member doing, and was that activity legislative?”

The D.C. Circuit put it plainly: the inquiry must be conducted communication by communication under the test established in Gravel.

And that brings us back to Arctic Frost.

The Arctic Frost Phone Records

During the investigation, federal investigators obtained telephone records relating to members of Congress.  Some requests covered a relatively narrow period surrounding January 6, 2021. Others reportedly covered considerably longer periods.

The government's stated investigative interest was not simply whether members of Congress were talking to someone. Investigators were attempting to determine who was communicating with whom concerning efforts to influence the electoral-certification process.

That provides the government's side of the constitutional argument.

If investigators were attempting to determine whether a crime had been committed, and the telephone records merely established communications between individuals, the government could argue that it was obtaining ordinary investigative evidence rather than interrogating a member about a legislative act.

But there is an obvious constitutional problem on the other side:  Who a legislator communicates with (and when) can reveal what is happening inside the legislative process.

A phone record showing that a senator spoke with a particular person immediately before a congressional vote does not tell the government what was said.  But it may tell the government something about the legislator's legislative activity.  That is precisely why the Speech or Debate Clause exists.

And it is why the issue is not nearly as simple as saying either “phone records aren't protected” or “Congressmen's phone records are absolutely protected.”

The existing case law requires a much more precise inquiry.

Then Jack Smith Had to Explain It to Congress

Jack Smith was subpoenaed by the House Judiciary Committee and ultimately gave a closed-door deposition on December 17, 2025.  During that deposition, Smith defended the acquisition of toll records and maintained that his office took the Speech or Debate Clause seriously.

He also maintained that the toll records themselves did not contain the content of calls or messages.  That distinction would become extremely important.  Because the controversy eventually moved beyond what the government obtained to what Smith told Congress about what the government obtained.

In July 2026, Chairman Jim Jordan referred Smith to the Department of Justice for possible prosecution. The referral alleges that Smith's sworn testimony created the impression that neither he nor his team had obtained or reviewed the contents of lawmakers' text messages.

Subsequently released records, according to the committee, indicated that Smith's investigative team had in fact accessed the content of messages involving more than 40 members of Congress and White House personnel, including material that had been subject to a DOJ “filter team” intended to screen potentially privileged material.

Smith's attorneys dispute that characterization, arguing that the questioning concerned particular subpoenas and toll records rather than every source of information that investigators might have possessed.

And that distinction is legally significant. Because being incomplete, evasive, confusing, or even misleading is not automatically the same thing as committing perjury or making a prosecutable false statement.

The government would have to prove the elements of an actual offense.

What Law Makes Lying to Congress a Crime?

There are several possibilities.  The most obvious is perjury.

Under 18 U.S.C. § 1621, a person who, after taking an oath to testify truthfully, willfully makes a material statement that the person does not believe to be true can be convicted of perjury and face up to five years' imprisonment.

There is also 18 U.S.C. § 1001, the federal false-statements statute.

This statute is particularly interesting because Congress specifically amended it in 1996 to cover false statements made in matters within the jurisdiction of Congress and the legislative branch.

The basic requirements are not simply:

“Someone said something wrong.”

The government generally must establish a knowingly and willfully false statement concerning a material matter within the statute's jurisdiction.  That is a substantially higher bar than proving that congressional testimony was inaccurate.

And that is where the word “knowingly” becomes the star of the show.

If Smith misunderstood a question, forgot something, answered a narrower question than the questioner intended, or accurately described one category of records while failing to volunteer information about another, that is one thing.

If, on the other hand, the evidence established that he knew a material statement was false and deliberately made it anyway, the legal landscape would be very different.

What About Contempt of Congress?

There is another misconception worth clearing up.  Congressional contempt is not simply the statutory penalty for lying.

Under 2 U.S.C. § 192, a witness who is summoned before Congress and willfully refuses to testify or refuses to answer a pertinent question can commit a misdemeanor.  In other words, contempt traditionally concerns things such as:  I refuse to answer.  

It is not simply:  I answered, but Congress believes I lied.

False testimony presents a different legal problem.  Congress can refer alleged criminal conduct to the Department of Justice. It can also use its institutional powers to investigate and, under certain circumstances, employ its contempt authority.  

But a congressional committee does not simply declare:  You lied. You're guilty because criminal guilt remains a matter for the criminal-justice system.

So Should Jack Smith Have Been Sanctioned?

This is where the answer needs a lawyer's annoying but necessary qualifier:

If the evidence establishes that Smith knowingly made materially false statements under oath, then there were (and are) legal mechanisms for holding him accountable.

The existence of those mechanisms is not hypothetical. The House Judiciary Committee has already used one of them: a criminal referral to the Department of Justice.

But whether Smith actually committed perjury or violated § 1001 depends upon facts that must be established, not merely upon the existence of conflicting descriptions of his testimony and the underlying records.

That distinction matters because the law does not criminalize every misleading statement.

For perjury, the government would need to prove the necessary elements, including the oath, falsity, materiality, and the requisite knowing and willful state of mind.  For § 1001, the government would likewise have to establish a materially false statement made knowingly and willfully.

The question therefore isn't simply:  Did Jack Smith mislead Congress?  Rather, the legally useful question is: Did Jack Smith knowingly and willfully make a materially false statement to Congress?

Those are two very different questions.

And Then There Is the Bigger Constitutional Question

The most fascinating part of this story may actually be separate from whether Smith's congressional testimony was truthful.  It is whether the government's acquisition of congressional communications properly accounted for the Speech or Debate Clause in the first place.

The D.C. Circuit's decision in In re Sealed Case demonstrates why.

The constitutional protection is functional. Some congressional communications are protected because they are legislative acts. Others are not.  And when government investigators seize or obtain communications that may contain protected legislative material, the Constitution requires more than simply saying:  Trust us. We'll sort it out later.

In United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007), the D.C. Circuit held that the Executive Branch had to provide a member an opportunity to assert Speech or Debate protection before reviewing materials likely to contain privileged legislative material.

That principle became part of the procedural backdrop to the Perry litigation and is one reason the constitutional issue deserves more attention than the shorthand phrase “phone records.”

Because the real question is not merely whether the government knew who called whom.  It is whether the government's investigative process intruded upon the constitutional sphere Congress is entitled to occupy without executive interference.

The Irony of the Constitution

There is a delicious constitutional irony here.

The Speech or Debate Clause was designed to protect Congress from the other branches.

Congress investigates the Executive Branch.  The Executive Branch investigates people connected to Congress.  Congress then investigates the Executive Branch's investigation. And eventually the investigator is subpoenaed by Congress to explain what happened.

That circularity is not necessarily a constitutional defect.  It is, in part, the constitutional system doing what it was designed to do:  checking power with power.

But the same system also demands something less exciting and considerably more important:  evidence.

The constitutional question surrounding the congressional phone records deserves serious examination and so does the question of whether congressional testimony crossed the line from an incomplete explanation into a knowingly false statement.

Those questions should not be answered by political allegiance. They should be answered by the Constitution, the statutes Congress enacted, and the evidence.

And those three things don't always produce the answer social media wants.

An Uncomfortable Reality Check

The Speech or Debate Clause isn't a congressional invisibility cloak. It doesn't mean a member of Congress can commit a crime and announce, “I'm legislating.” But neither is a congressional badge a constitutional bullseye.

The Framers deliberately built a wall around legitimate legislative activity because they understood that a legislature cannot remain independent if the executive branch can investigate the legislators every time it dislikes what they are doing.

And there is an equally important rule on the other side of that wall:

If you voluntarily walk into Congress, raise your hand, swear to tell the truth, and start answering questions, the Constitution does not hand you a magic eraser for inconvenient facts.

For Jack Smith, that may ultimately be the more uncomfortable constitutional question.  The man who once stood on the government's side of the subpoena is now on the receiving end of one.

And this time, Congress is holding the subpoena.

 

This sounds paranoid but: Trust no one

I really like writing this blog and I've been writing it on and off for about 14 years.

That's right - 14 YEARS! 

Some topics are better than others but what has really been helpful is this new AI set up they have going.  

Specifically, Chatgpt has come in handy helping with identifying topic, cases, and statutes relevant to the topics I'm writing about.

The problem with these AI search engines like ChatGPT is that you can't really depend on them for accuracy when researching law or things of a legal nature.  Sometimes, it even creates cases out of thin air.

Wait, what?!  

You mean to tell me that AI search engines spit out caselaw that doesn't even exist or out and out misleads researchers?!

Called Hallucinations and yes, that's exactly what I mean.  

Because LLMs (i.e. "Large Language Models" which is the official classification for AI platforms) create hallucinations with reckless abandon, you have to be extra careful when using anything you find on an AI search engine.

For example, do you remember Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023)?  In Mata, lawyers submitted a brief with six case citations (and quotes) that did not exist; they were generated/made up by ChatGPT.  The court imposed a $5,000 fine on the lawyers and their firm (which is peanuts).  The judge found they acted in bad faith, including conscious avoidance of verifying the non-existence when there were signs the cases might be fake.  

Or how about United States v. Cohen, 724 F. Supp. 3d 251 (S.D.N.Y. 2024).  In that case Michael Cohen admitted he had given his lawyer fake citations generated by Google Bard. The lawyer then submitted them.  The court called the inclusion of the fake cases “embarrassing and certainly negligent, perhaps even grossly negligent.” But the judge determined there was no intention to deceive, i.e., not in bad faith, so no sanctions were imposed.

Other cases where attorneys used holographic cases (ie. cases generated by AI search engines that don't exist) include:

Garner v. Kadince, 20250188-CA (Utah Ct. App., filed May 22, 2025): Their petition included case-citations that were found to be fabricated or “hallucinated” by AI (ChatGPT). One example: Royer v. Nelson, 2007 UT App 74, 156 P.3d 789, a case that does not exist in any legal database except in AI outputs.

Wadsworth v. Walmart (D. Wyo. 2025): Three lawyers cited fake cases that were AI-generated in a personal injury lawsuit against Walmart. 

Alabama Prison Litigation (2025): Butler Snow firm cited entirely fabricated Eighth Amendment cases.

My personal opinion is that any attorney that doesn't Shepardize ALL cases cited in legal documents should be, in the very least, suspended for at least a 6 months.  They should also be required to pass the Multistate Professional Responsibility Exam (aka MPRE) before being again allowed to practice law. 

But how does this all affect me, the legal blogger?

Over the last year, I've blogged about a whole range of legal topics.  In a few instances, I've found, through ChatGPT and other AI search engines, not a few discrepancies.

For example, recently I wrote a blog about tailgating and after running a search in ChatGPT for cases related thereto, I got a number of cases back presumably on the subject.

One case in particular, Shuck v. Means, was particularly difficult to locate on the Internet and I asked ChatGPT:

 is Shuck v. Means, 302 P.2d 217 (Okla. 1956) a real case and does it have anything to do with tailgating

To which ChatGPT responded:

You're in for a quick clarification—“Shuck v. Means, 302 P.2d 217 (Okla. 1956)” does not appear to be a real case, at least not under that name or citation. 

A few paragraphs later, I ran into a similar problem when after a query ChatGPT returned a case (in this instance, Baker v. Rushing).  After an extensive search on the Internet of not finding that case, I asked ChatGPT:

is Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) correct in this format

To which Chatpgt responded: 

Yes — that citation format is correct. Here’s the breakdown:

• Case Name: Baker v. Rushing

• Reporter Volume: 104

• Reporter Abbreviation: S.E.2d (South Eastern Reporter, Second Series)

• Page Number: 165

• Court and Year: (N.C. 1958) → North Carolina Supreme Court, 1958

So it should appear as:

📖 Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958).

That is a valid, properly formatted Bluebook citation.

Now, to the untrained eye, that would look like this is a real/actual case and a rookie researcher would stop there.  I mean, it says it's the right Bluebook format - so that should mean it's a real case.  However, after I couldn't find Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958), I went back to ChatGPT and again asked:

is Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) a real case

 To which Chatgpt responded:

Great question — “Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958)” does not appear to be a valid or real case citation, at least based on available legal databases and authoritative sources.

...which is annoying - and definitely misleading - given that ChatGPT first said the case was in the correct Bluebook citation format (which was technically true) but then acknowledged that it screwed up and returned a case that was neither valid or real.

Soooooo aggravating! 

Not wanting to drop the issue, I again asked ChatGPT:

if Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) is not a valid or real case, why did you return it in my initial query 

To which ChatGPT responded:

That’s a very fair question — and you’re right to call this out.

Here’s what likely happened:

When you first asked about tailgating-related cases, I tried to retrieve examples of real case law, but I sometimes draw from patterns in legal writing rather than verified court databases. “Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958)” looks like a perfectly plausible citation (correct reporter, correct jurisdiction, correct year), but after checking, there’s no record of such a case.

This is what’s known as a hallucination (or “holographic case”), where I construct something that looks real based on legal citation formats and similar case names — but it doesn’t actually exist.

The main reasons this happens are:

• Predictive nature of my training: I was trained to generate text that follows patterns, including how case citations are written, but I don’t have perfect access to every case law database.

• Similarity to real cases: There are real cases with names like Baker v. [Someone] and reporters like S.E.2d from 1958, so it can produce something that seems legitimate.

• Overconfidence in early responses: Without doing a real-time case law search (like we just did for your follow-ups), I might give examples that aren’t verified.

This tends to happen more and more and as I use AI to help with blogging, I now ask whether particular cases returned are real before including them in my blog.

But this got me to thinking and I asked ChatGPT:  

why does chatgpt return cases in a search that don't exist?

To which ChatGPT responded:

That’s a great question — and it’s one of the most important issues when using AI for legal research.

ChatGPT (and other LLMs) sometimes return cases that don’t exist because of the way large language models work:

• Pattern Matching, Not Databases:
  I don’t have a built-in legal case database. Instead, I was trained on lots of legal writing and I generate responses by predicting what looks like a plausible answer. If you ask for a case citation, I try to produce one that fits the pattern of a real case — correct reporter, volume, page — even if it’s made up.

• Pressure to Be Helpful:
  If you ask for “a case where X happened,” I try to fulfill that request. If I don’t have a known case in memory, I may invent one that sounds right rather than say “I don’t know,” especially if your prompt suggests that such a case must exist.

• Legal Citations Are Predictable:
  Because case citations follow a rigid format (e.g., Smith v. Jones, 123 F.3d 456 (9th Cir. 2020)), I can generate something that looks very convincing — even to experienced lawyers. But if you check the reporter, the case might not exist.

• Contextual Merging (Hallucination):
  Sometimes I blend real cases. For example, I might take facts from Case A and a holding from Case B and give it a citation that matches neither. This is not intentional — it’s a statistical artifact.

This problem is exactly what led to the high-profile Mata v. Avianca (S.D.N.Y. 2023) case — where lawyers used ChatGPT to write a brief, it cited six fake cases, and the court sanctioned them.

✅ Best Practice When Using AI for Legal Research:

• Treat all AI-supplied case names and citations as leads, not authorities.

• Verify every case in a trusted source (Westlaw, Lexis, Fastcase, Casetext, etc.) before using it.

• If you can’t find it in an official reporter or database, assume it doesn’t exist.

And there you have it - even ChatGPT knows it lies to/misleads people.  Well, maybe not out and out lie but returns results that are not accurate or existent.

 

For this reason, 

• always verify results, 
• always recheck results, and 
• never trust that the bot you're talking to is telling you the truth

...because what does an artificial intelligence know about "truth" when any/all information is true to an AI bot?

 

 

Word of the Month for September 2026: Identification

I've recently noticed something about myself.

I've noticed that when I walk up to people and start talking to them, the first question that comes out of my mouth is not always, "What is your name?"

Even if I don't know them, their name is not the most important part of the conversation.  Which is odd because every time (I mean, EVERY time) in every video I've ever seen of a police/private person interaction, the name is the one thing that police need to hear.

That's "need" as in NEEEEEEEED IT, they do.

In fact, police need to hear a person's name right up front so bad that they'll perseverate on that one thing for hours until they get it.  Can't relax until they hear it. 

For our purposes here, IDENTIFICATION (or "ID") is defined as: the act of recognizing, establishing, or proving who a person is or what a thing is.  In the context of a police/civilian interaction, it is the act of providing information that reasonably allows law enforcement to ascertain who a person is, typically including name, and sometimes additional details such as address, date of birth, or government-issued ID number.

The key points to keep in mind when examining IDENTIFICATION ("ID") is/are:

1. Purpose: To verify a person’s identity for investigative, safety, or legal reasons.

2. Forms of acceptable ID:

   • Verbal: stating your full name (and sometimes other personal details).

   • Documentary: showing an official ID (driver’s license, state ID, passport).

3. Legal Implication: Giving identification does not inherently imply wrongdoing; it simply establishes who you are.

4. Limitation: Except where authorized by law (state “stop and identify” statutes, traffic laws, or during arrest), you cannot be compelled to provide identification absent a lawful stop or reasonable suspicion.

So, why, exactly, do police ask for a person's ID?  When officers are interacting with the public, they often want to quickly determine:

1. Who you are: this helps check records (warrants, criminal history, protective orders, etc.).

2. Whether you are wanted: outstanding warrants or alerts.

3. Whether there are safety concerns: warnings tied to your identity.

4. Whether the encounter escalates to an enforcement action: arrests, citations, or release.

Officers often ask for ID not because you’ve committed a crime, but because identity is foundational to investigative and safety decisions (at least, and here's where the paranoia kicks in, that's what they tell everyone).

Now, this is all well and good but, this being a legal-esque blog, what I'm wanting to know is where to police get off demanding a person's ID.  I mean, do they have any legal authority to demand a person's ID or are they just winging it hoping no one will catch on and realize that they don't know what they think they know?!

Turns out, there are several legal doctrines in U.S. law that allow police to ask for a person's Identification. The principal reasons include are:

A. “Stop and Identify” Statutes

A minority of states have laws often called “stop and identify” statutes that require a person to identify themselves to police in specific circumstances; usually during a valid Terry stop.  

Under Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that police can perform a brief investigative stop if they have reasonable suspicion that criminal activity may be occurring. They are also allowed to ask questions “reasonably related in scope” to the stop.

Then in 2004, the SCOTUS ruled in Hiibel v. Sixth Judicial Dist., 542 U.S. 177 (2004) that:

• Where a state has a “stop and identify” statute, police can require a suspect to give name during a Terry stop.

• The Court did not require documentary ID; just a reasonable explanation for refusal.

• The authority comes from the state statute and the Court’s interpretation that it doesn’t violate the Fourth or Fifth Amendments in that context.

So, essentially, the rule from we get from Hiibel is that if a person is being detained during a lawful Terry stop, and if state law requires it, said person may be legally obligated to provide your name.

This, of course, raises another round of questions not the least of which is: can police demand ID without reasonable suspicion or probable cause?

Short answer - No. Police cannot legally force you to identify yourself absent a lawful stop or applicable law. Two key cases illustrate that:

In Brown v. Texas, 443 U.S. 47 (1979), the SCOTUS struck down a conviction based solely on refusal to identify, because the encounter (meaning that without reasonable suspicion or an applicable statute, police don't have authority to demand ID).

Further, in Delaware v. Prouse, 440 U.S. 648 (1979), the SCOUTS again held that police cannot stop a vehicle and demand ID (driver’s license) without any objective basis for the stop.

As a side note, and because so many of these YouTube videos talk about probable cause when it comes to whether police can stop a person and ask for their ID with/without it:

• Probable cause is a higher standard.  It is a reasonable belief, based on specific facts, that a person has committed a crime (needed for arrest or search warrants).

• Reasonable suspicion is a lower standard and means having enough objective facts and evidence—not just a hunch—to lead a reasonable person to believe a crime has been committed (justifies brief stops).

• Hiibel applies at the reasonable suspicion level.

So, Police can ask for ID during a lawful Terry stop (reasonable suspicion) where state law requires it but Officers cannot lawfully compel ID when there is no reasonable suspicion at all of a crime being committed.

Now, you may be asking, what states have stop and identify statutes?

Well, that's a really good question because not all states in the Union have such statutes.  The ones that do include:

• Alabama – Ala. Code § 15‑5‑30

• Arizona – Ariz. Rev. Stat. § 13‑2412

• Arkansas – Ark. Code § 5‑71‑213 (loitering context)

• Colorado – Colo. Rev. Stat. § 16‑3‑103(1)

• Delaware – Del. Code Ann. Tit. 11 §§ 1902, 1321(6)

• Florida – Fla. Stat. § 901.151 & loitering statute § 856.021

• Georgia – Ga. Code Ann. § 16‑11‑36(b) (loitering)

• Illinois – 725 Ill. Comp. Stat. 5/107‑14

• Indiana – Ind. Code § 34‑28‑5‑3.5

• Kansas – Kan. Stat. Ann. § 22‑2402(1)

• Louisiana – La. Code Crim. Proc. Ann. Art. 215.1(A)

• Missouri – Mo. Rev. Stat. § 84.710(2) (Kansas City only)

• Montana – Mont. Code Ann. § 46‑5‑401

• Nebraska – Neb. Rev. Stat. § 29‑829

• Nevada – Nev. Rev. Stat. § 171.123

• New Hampshire – N.H. Rev. Stat. Ann. § 594:2

• New Mexico – N.M. Stat. Ann. § 30‑22‑3

• New York – N.Y. Crim. Proc. Law § 140.50(1)

• North Dakota – N.D. Cent. Code § 29‑29‑21

• Ohio – Ohio Rev. Code § 2921.29

• Rhode Island – R.I. Gen. Laws § 12‑7‑1

• Utah – Utah Code § 77‑7‑15

• Vermont – Vt. Stat. Ann. Tit. 24, App. § 113(c)

• Wisconsin – Wis. Stat. § 968.24

So, in these 24 states, the statute might say officers may require information; in others it says officers may demand it (at their discretion).  Some states make refusal to provide ID a misdemeanor if the officer properly informs you of the law.

B. States that DON'T have stop-and-identify statutes. 

The other 26 states which don't have stop‑and‑identify laws include:

• California

• Alaska

• Connecticut

• Hawaii

• Idaho

• Iowa

• Kentucky

• Maine

• Maryland

• Massachusetts

• Michigan

• Minnesota

• Mississippi

• New Jersey

• North Carolina

• Oklahoma

• Oregon

• Pennsylvania

• South Carolina

• South Dakota

• Tennessee

• Texas

• Virginia

• Washington

• West Virginia

• Wyoming

In these states, there is no statute that justifies police to compel identification during a Terry stop (meaning an officer usually cannot charge you with a crime simply for refusing to identify yourself unless you are driving or have been otherwise arrested).

Put plainly, in these 26 states, absent another legal basis for a stop (reasonable suspicion) or a specific context (traffic stop, arrest), you typically do not have a statutory obligation to provide your name or ID.

I guess a practical takeaway from all this is:

• Police ask for your ID for investigative and safety purposes.

• The authority to compel your identity hinges on:

  • a lawful stop (reasonable suspicion),

  • and applicable statute in your respective jurisdiction.

I guess, then, what you (the non-police person) needs to do is get smart on the laws in your state.  If you live in a state that as a stop and identify statute (see above), then failing to so identify will probably result in your being charged with a misdemeanor.

If, however, if you live in a state that does NOT have stop and identify statute, keep your nose clean, don't piss anyone off, make sure there are no witnesses, and you should be in the clear.

Should be - but no guarantees.  

 

Legal Myth Monday: 15 Of The Second Amendment’s Greatest Hits and Misses

You know what's funny?

It's how people use legal words and concepts like they think they know what legal things mean.

They don't - or, at least they don't mean what they think they mean.

You know what I mean?

Probably not - which is why I'm creating a new blog section - "Legal Myth Monday" to cover what things legal mean and how they're applied in real time.

In today's episode, we're dealing with all things Second Amendment which has spent a long time lurking in the constitutional shadows. Then came District of Columbia v. Heller, McDonald v. Chicago, New York State Rifle & Pistol Ass’n v. Bruen.  

Suddenly, the right to keep and bear arms (and particularly the right to armed self-defense) was no longer something courts could simply treat as constitutional background scenery.

Heller recognized an individual right to possess a firearm for lawful purposes, with self-defense at its core. McDonald made that right applicable to the states. And Bruen changed the rules for evaluating restrictions.  When the Second Amendment's text covers the conduct, the government must show that its regulation is consistent with the Nation's historical tradition of firearm regulation.

So let's pull back the curtain, turn on the constitutional flashlight, and expose 15 myths about what the Second Amendment actually protects.

Myth #1:  The Second Amendment protects a collective right connected only to militia service.

Reality:  The Second Amendment protects an individual right to keep and bear arms, including for lawful self-defense.

Explanation:  The Supreme Court settled the individual-right question in Heller. The militia language announces a purpose; it does not transform the operative right into a collective privilege.

Related Authority:  District of Columbia v. Heller, 554 U.S. 570 (2008).

What the Case Is About:  District of Columbia law effectively prohibited handgun possession in the home and required lawful firearms to be kept inoperable.

Holding:  The Court held that the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditionally lawful purposes, including self-defense in the home.

Cheeky Reality Check:  The Second Amendment may mention a militia. That doesn't mean you need to show up at the armory with a membership card. 

Myth #2:  The Second Amendment applies only to the federal government.

Reality:  The Second Amendment right applies to state and local governments through the Fourteenth Amendment.

Explanation:  The Second Amendment was originally understood as a limitation on the federal government. Through the Fourteenth Amendment, however, certain rights protected by the Bill of Rights have been incorporated and made applicable to the states. As a result, the Second Amendment places constitutional limits not only on federal action, but also on state and local governments.

Related Authority:  McDonald v. City of Chicago, 561 U.S. 742 (2010).

What the Case Is About:  Chicago maintained extremely restrictive handgun laws after Heller was decided.

Holding:  The Court held that the Second Amendment right recognized in Heller is fundamental and is incorporated against the states through the Fourteenth Amendment. Consequently, state and local governments are also bound by the Second Amendment and may not infringe that right in violation of the Constitution.

Cheeky Reality Check:  After McDonald, a state cannot simply say, “Nice constitutional right you've got there. Unfortunately, we don't recognize it.”

Myth #3:  The Second Amendment protects self-defense only inside the home.

Reality:  The right to bear arms for self-defense extends into public spaces.

Explanation:  The Supreme Court expressly rejected the notion that the Second Amendment's protection disappears when a law-abiding citizen walks out the front door.

Related Authority:  New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

What the Case Is About:  New York required applicants for unrestricted concealed-carry licenses to demonstrate “proper cause,” effectively requiring a special need for self-defense.

Holding:  The Court held that the Second and Fourteenth Amendments protect an individual's right to carry a handgun publicly for self-defense.  Therefore a state may not require a person to demonstrate a special need for self-defense before obtaining a license to carry a handgun in public.

Cheeky Reality Check:  Apparently the constitutional right to self-defense doesn't expire when your front-door mat ends. 

Myth #4:  A citizen must prove some special or extraordinary need before exercising the right to carry for self-defense.

Reality:  Ordinary, law-abiding citizens do not have to prove that they are unusually endangered before exercising the right.

Explanation:  A licensing system that gives the government discretion to decide who has a “good enough” reason to protect himself is precisely the type of system Bruen rejected.

Related Authority:  Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017).

What the Case Is About:  Washington, D.C., required applicants to demonstrate a “good reason” before receiving a concealed-carry license.

Holding:  The D.C. Circuit held that the requirement effectively limited public carry to a privileged class of citizens who could demonstrate a special need, and therefore concluded that the District's licensing requirement violated the Second Amendment.

Cheeky Reality Check:  “I'm worried about being attacked” is apparently enough to worry about an attack but not, according to D.C.'s old system, enough to prepare for one. 

Myth #5:  Any licensing requirement for carrying or possessing a firearm is unconstitutional.

Reality:  Objective, nondiscretionary “shall-issue” licensing regimes can be constitutional.

Explanation:  The Second Amendment does not mean that a person must be allowed to acquire or carry a firearm without any screening or licensing process. What matters is how the licensing system operates. A “shall-issue” system uses objective requirements—such as a background check or safety training—and requires the government to issue the license when those requirements are satisfied. 

That is fundamentally different from a “may-issue” system in which officials can decide whether an applicant has a sufficiently good reason to exercise the right. Bruen treated objective, nondiscretionary licensing systems as presumptively constitutional, while rejecting systems that give officials the power to decide which ordinary citizens have a sufficiently compelling need for self-defense.

Related Authority:  Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc).

What the Case Is About:  Maryland required prospective handgun purchasers to obtain a Handgun Qualification License after satisfying objective requirements.

Holding:  The en banc Fourth Circuit upheld the licensing system, concluding that Bruen recognized the presumptive constitutionality of objective “shall-issue” licensing regimes, provided they do not operate abusively.

Cheeky Reality Check:  The Constitution apparently doesn't object to paperwork. It objects when the paperwork becomes a constitutional obstacle course. 

Myth #6:  The government can make you wait indefinitely to obtain a firearm because the Second Amendment protects possession, not acquisition.

Reality:  The right to keep and bear arms necessarily includes meaningful access to acquiring arms.

Explanation:  A right to possess something becomes rather theoretical if the government can simply prevent you from acquiring it.

Related Authority:  Ortega v. Grisham, 148 F.4th 1134 (10th Cir. 2025).

What the Case Is About:  New Mexico imposed a seven-day waiting period on most firearm purchases.

Holding:  The Tenth Circuit concluded that the plaintiffs were likely to succeed in showing that the waiting period violated the Second Amendment because the right to bear arms necessarily includes a right to acquire arms, and the government failed to identify a sufficient historical tradition supporting the waiting period.

Cheeky Reality Check:  “Sure, you have the right to own a gun. We'll let you know when you can actually get one.”  

Myth #7:  The government can require firearm training while simultaneously making meaningful training practically impossible.

Reality:  The Second Amendment protects conduct necessary to the meaningful exercise of the right, including firearm training.

Explanation:  Training and proficiency are closely connected to the lawful use of a firearm for self-defense.  A right to possess a firearm for self-defense would be of limited practical value if the government could simultaneously prevent people from learning how to use that firearm safely and effectively. 

The Second Amendment protects the meaningful exercise of the right, not merely possession of an object that its owner has never been permitted to practice using. That does not mean every firearm-training facility, course, or practice session receives absolute constitutional protection; reasonable regulation of ranges and training may still be permissible. The important distinction is between regulating firearm training and effectively eliminating the ability to obtain it.

Related Authority:  Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).

What the Case Is About:  Chicago required residents to complete firing-range training before obtaining a handgun permit while simultaneously prohibiting virtually all firing ranges in the city.

Holding:  The Seventh Circuit held that the range ban severely burdened the Second Amendment right and granted preliminary relief.

Cheeky Reality Check:  “Here's your constitutional right. Now here's your mandatory training. And here's a law saying you can't train.”  That's not regulation. That's constitutional hide-and-seek. 

Myth #8:  The Second Amendment protects only firearms that existed when the Amendment was ratified.

Reality:  The protection extends to modern bearable arms, not merely eighteenth-century weapons.

Explanation:  The constitutional right did not come with an expiration date tied to the last musket manufactured in 1791.

Related Authority:  Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam).

What the Case Is About:  A woman possessed a stun gun for self-defense. Massachusetts courts concluded that stun guns fell outside the Second Amendment because they were not in existence in 1791.

Holding:  The Supreme Court rejected that reasoning, explaining that the Second Amendment protects arms that are commonly possessed for lawful purposes, not merely weapons that existed at the time of the Founding. The fact that modern technology has produced new types of firearms does not, by itself, remove those weapons from the Amendment's protection.

Cheeky Reality Check:  If the Founders had intended to constitutionalize only muskets, somebody forgot to put “muskets only” in the fine print. 

Myth #9:  If a firearm is commonly used for lawful self-defense, the government can ban it simply because it considers the weapon unusually dangerous.

Reality:  The government faces a serious constitutional problem when it bans arms that are commonly possessed for lawful purposes.

Explanation:   Heller distinguished protected weapons in common use from “dangerous and unusual” weapons. That distinction remains central to modern Second Amendment litigation.

Related Authority:  Barnett v. Raoul, Nos. 24-3060 et al., slip op. at 55–65 (7th Cir. July 9, 2026).

What the Case Is About:  Illinois's Protect Illinois Communities Act restricted AR-15-style rifles and thirty-round magazines.

Holding:  The Seventh Circuit ultimately upheld the restrictions under the Bruen/Rahimi historical-tradition framework, concluding that the challenged restrictions were consistent with the principles underlying the Nation's firearm-regulation tradition.

Cheeky Reality Check:  Here's the important twist: “Commonly used” does not automatically mean “immune from regulation.”  The Constitution may protect the arm, but the government can still have a historical argument to make. And sometimes, surprisingly, it wins. 

Myth #10:  Once Bruen was decided, virtually every firearm regulation became presumptively unconstitutional.

Reality:  No. Bruen created a historical-tradition test not a constitutional demolition derby.

Explanation:  The government may still regulate conduct covered by the Second Amendment if it can demonstrate that the regulation is consistent with the Nation's historical tradition.

Related Authority:  United States v. Rahimi, 602 U.S. 680 (2024).

What the Case Is About:  Rahimi possessed firearms while subject to a domestic-violence restraining order that included a finding that he posed a credible threat to another person's physical safety.

Holding:  The Supreme Court held that an individual found by a court to pose a credible threat to another's physical safety may be temporarily disarmed consistent with the Second Amendment.

Cheeky Reality Check:  Bruen did not say, “History shall be used only when the government loses.” History is the referee here, not the government's designated pinch hitter.

Myth #11:  The Second Amendment gives you an unrestricted right to manufacture your own firearm including a 3-D-printed “ghost gun.”

Reality:  The Second Amendment does not automatically exempt privately manufactured firearms from regulation.

Explanation:  The right to keep and bear arms does not necessarily mean that every method of acquiring or manufacturing an arm is constitutionally immune from regulation. Bruen requires courts to examine whether a challenged restriction fits the Second Amendment's text and the Nation's historical tradition. 

Thus, the fact that someone wants to make a firearm for personal self-defense does not, by itself, answer whether the government may regulate how that firearm is manufactured, serialized, or transferred. The constitutional question is whether the particular regulation impermissibly burdens the protected right—not simply whether the firearm was made by its owner.

Related Authority:  Defense Distributed v. Attorney General of New Jersey, No. 23-3058, 2026 WL 465147 (3d Cir. Feb. 12, 2026).

What the Case Is About:  Defense Distributed and the Second Amendment Foundation challenged New Jersey restrictions involving computer files used to manufacture 3-D-printed firearms. They argued, among other things, that the restrictions infringed a Second Amendment right to “self-manufacture firearms.” The district court dismissed the claim, and the plaintiffs appealed.

Holding:  The Third Circuit affirmed dismissal. It held that the plaintiffs had not alleged an actual Second Amendment injury because they did not allege that they (or their members) had actually attempted to 3-D print a firearm and been prevented from doing so. The court therefore did not decide that the Second Amendment categorically protects or does not protect self-manufacture of firearms.

Cheeky Reality Check:  The Second Amendment may protect your right to have an arm. But that doesn't necessarily mean the Constitution hands you a 3-D printer, a spool of polymer, and a constitutional permission slip.

Myth #12:  Anyone who has ever used marijuana is automatically outside the Second Amendment.

Reality:  Not necessarily. The government cannot automatically disarm a regular marijuana user solely on that basis without the historical justification the Second Amendment requires.

Explanation:  The Second Amendment does not permit the government to disarm an entire category of otherwise law-abiding people simply by labeling that category dangerous. When a person's conduct falls within the Amendment's protection, the government must show that the restriction is consistent with the Nation's historical tradition of firearm regulation. That does not mean drug users have an unlimited right to possess firearms.  

Restrictions involving addiction, current intoxication, or individualized evidence of dangerousness may raise different questions. The important point is that drug use alone does not automatically answer the Second Amendment question.

Related Authority:  United States v. Hemani, 608 U.S. 2 (2026).

What the Case Is About:  The government relied solely on Hemani's admitted marijuana use to prosecute him for possessing a firearm.

Holding:  The Court affirmed dismissal of the prosecution, while expressly leaving open questions involving addicts, people presently intoxicated, individualized proof of dangerousness, and other firearm restrictions.

Cheeky Reality Check:  The constitutional question is apparently more complicated than: “Pot? Gun? Prison.”  Imagine that. 

Myth #13:  Being between ages 18 and 20 automatically gives you an unrestricted Second Amendment right to purchase any firearm.

Reality:  The question is constitutionally contested, and at least one federal circuit currently upholds age-based purchase restrictions.

Explanation:  The Second Amendment does not contain a specific age at which the right to keep and bear arms begins, so age restrictions have to be evaluated under the constitutional framework established by Bruen. 

That means the government cannot simply declare that people under 21 are too young to exercise Second Amendment rights; it must demonstrate that the restriction is consistent with the Nation's historical tradition of firearm regulation.

Related Authority:  Nat'l Rifle Ass'n of Am. v. Bondi, 133 F.4th 1108 (11th Cir. 2025) (en banc), cert. denied, 2026 WL 1871313 (U.S. June 30, 2026).

What the Case Is About:  Florida prohibited persons under 21 from purchasing firearms.

Holding:  The en banc Eleventh Circuit upheld Florida's 21-year purchase age.  The court concluded that, historically, people under 21 were treated as minors who lacked the legal capacity to independently acquire property, including firearms.  

NRA v. Bondi noted that although 18-to-20-year-olds are adults for many purposes today, the Eleventh Circuit concluded that their constitutional rights concerning firearm purchases could still be treated differently from those of older adults because of the historical treatment of young adults and minors. 

Florida's law was therefore sufficiently analogous to that historical tradition under the Second Amendment's text-and-history framework.  The Supreme Court denied review on June 30, 2026, leaving the Eleventh Circuit's judgment in place.  

Cheeky Reality Check:  The Second Amendment may say “the people,” but courts are still arguing about exactly where adolescence ends and constitutional adulthood begins. 

Myth #14:  Once a government labels a location a “sensitive place,” the Second Amendment automatically disappears there.

Reality:  Sensitive-place restrictions can be constitutional but the government still has to stay within the historical tradition recognized by Bruen and Rahimi.

Explanation:  The Supreme Court has identified places such as schools and government buildings as traditional examples of sensitive places. But that doesn't mean a legislature can simply slap a “sensitive” sticker on half the state and declare the Second Amendment closed for business.

Related Authority:  Kipke v. Moore, 165 F.4th 194 (4th Cir. 2026).

What the Case Is About:  Maryland's SB 1 (the Gun Safety Act of 2023) designated numerous locations as places where firearms could not be carried, including private property open to the public and various public locations.

Holding:  The Fourth Circuit examined the challenged restrictions under Bruen and concluded that some restrictions could be historically justified while rejecting Maryland's broad presumptive prohibition on carrying firearms on private property open to the public without the owner's permission. The court's mandate was subsequently stayed while the parties sought Supreme Court review.

Cheeky Reality Check:  Calling someplace “sensitive” is a legal argument.  It isn't a magic word. 

Myth #15:  The government can regulate firearm acquisition, sales, and transfers however it wants because the Second Amendment protects only possession and carrying.

Reality:  Regulations governing acquisition can implicate the Second Amendment when they meaningfully constrain the ability to possess and bear arms.

Explanation:  Courts have distinguished between ordinary commercial regulations and regulations that effectively prevent ordinary citizens from acquiring firearms.

Related Authority:  Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025).

What the Case Is About:  California prohibited most people from purchasing more than one firearm within a 30-day period.

Holding:  The Ninth Circuit held that California's one-gun-a-month law facially violated the Second Amendment because the right to keep arms includes the ability to acquire firearms and the restriction was not supported by the Nation's historical tradition.

Cheeky Reality Check:  The government can't necessarily say, “Sure, you have the right to own one. We're just going to make buying another one practically impossible.”  At some point, “regulation” starts looking suspiciously like “denial.”

 

After Heller, McDonald, and Bruen, the Second Amendment is no longer the constitutional wallflower. The Supreme Court has made clear that the right to keep and bear arms is an individual right, that self-defense sits at its core, and that the right extends beyond the front door. 

Government may regulate firearms but it cannot simply declare a regulation reasonable and call it a day. Under Bruen, history gets a seat at the table.

Of course, the Second Amendment isn't a constitutional “Do Whatever You Want With a Gun” card. Rahimi makes that clear. 

The real question isn't whether a firearm regulation sounds sensible. Rather, it's whether the regulation is consistent with the text, history, and tradition that define the right. In other words: when it comes to the Second Amendment, the Constitution has receipts and the government better bring some of its own.