Ways To Damage The Right To Keep And Bear Arms

Go out of your way to draw attention to yourself while openly carrying a firearm, and one that produced legitimate questions about whether the gun was legal, whether you might have had a criminal intent, and then file a sec. 1983 suit against the police officers who detained you while trying to figure out if you were breaking the law.  From Embody v. Ward (6th Cir. 2012) is a description of Tennessee law which allows one to carry pistols in public parks, but not long guns:

Armed with knowledge of this law  and one thing more—a Draco AK-47 pistol—Leonard Embody went to Radnor Lake State Natural Area, a state park near Nashville, Tennessee, on a Sunday afternoon.  Dressed in camouflage, he slung the gun with its eleven-and-a-half-inch barrel across his chest along with a fully loaded, thirtyround clip attached to it.

Embody anticipated his appearance at the park would attract attention—he carried an audio-recording device with him—and it did.  One passer-by spontaneously held up his hands when he encountered Embody.  Two park visitors reported to a park ranger that they were “very concerned” about Embody and the AK-47.  R.22-3 at 5.  And an elderly couple reported to a ranger that a man was in the park with an “assault rifle.”  Id. at 6. 

Two more predictable things happened.  A park ranger disarmed and detained Embody to determine whether the AK-47 was a legitimate pistol under Tennessee law, releasing him only after determining it was.  And Embody sued the park ranger, claiming he had violated his Second, Fourth and Fourteenth Amendment rights.

For his troubles, Embody has done something rare:  He has taken a position on the Second and Fourth Amendment that unites the Brady Center to Prevent Gun Violence and the Second Amendment Foundation.  Both organizations think that the park ranger permissibly disarmed and detained Leonard Embody that day, notwithstanding his rights to possess the gun.  So do we.

Before you say, "He was just trying to protect the right to open carry."  I don't think so, or he would not have gone out of his way to create circumstances to create uncertainty about whether he had some criminal intent.

The barrel was a half-inch shy of the legal limit,  and, when coupled with the thirty-round ammunition clip, it reasonably could look more like a rifle than a handgun.  All of this explains the reactions of visitors to the park, who became frightened at the sight of a man in camouflage carrying an AK-47 across his chest, including one couple who reported a man with an “assault rifle.”  R.22-3 at 6.  Making matters worse (or at least more suspicious), Embody had painted the barrel tip of the gun orange, typically an indication that the gun is a toy.  An officer could fairly suspect that Embody had used the paint to disguise an illegal weapon.  On this record, an officer could reasonably suspect something was amiss. 

Oh, and Embody actually mailed me a copy of the decision in which he lost, but fortunately, did not damage the Second Amendment.  With a less friendly set of judges, the results could have been worse.