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Dicta from a recent Washington case

Via Gene Volokh--some language in a recent concurring opinion. The defendant was stopped for driving without a license. Police found with drugs in his truck, and a firearm in a case behind the seat where it was quite difficult to get to. The question was whether an 18 month sentence enhancement for committing an offense "while armed" applied.

The conclusion was no, with the majority applying a test where "armed" means either a firearm is readily accessible, or else it bore some nexus or connection with the offense, and citing strings of cases determining whether a firearm was or was not sufficiently accessible, and whether the required nexus had or had not been proven.

Judger Sander's concurring opinion argued the test was too ambiguous, and cited a constitutional issue:

And should constitutional rights turn on these minute distinctions?
'{A}y, there's the rub.' In Schelin, four judges stated that '{r}equiring
a nexus between the defendant, the crime, and the weapon protects against
violation of the right to bear arms.' Schelin, 147 Wn.2d at 575 (opinion
of Ireland, J.). But this was a mere plurality. I stated that allowing the
imposition of a firearms sentence enhancement for other than use of the
'firearm to aid the commission of the crime charged' violated the state
constitution. Id. at 595 (opinion of Sanders, J.).

This court has not yet resolved whether the state constitution requires
more than a nebulous 'nexus' to infringe on the specific constitutional
right to keep and bear arms. Allowing innumerable factual distinctions
that make no difference to control the exercise of a constitutional right
that is absolute within its scope, leaves our citizenry blowing in the
proverbial wind, unable to discern whether their constitutionally protected
acts will be recognized by the courts.

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