How to Fail to Make Second Amendment History
A late summer decision from the Sixth Circuit Court of Appeals, which just came to my attention via gun rights and law scholar David Hardy, has a useful lesson for how not to make Second Amendment history: marching around a national state park in camo with a gun with a nearly foot-long barrel and a full 30-round ammo clip magazine across your chest. Even though, yes, you were within the letter of the law.
From the decision in the case of Embody v. Ward:
Tennessee law allows individuals with gun permits to carry handguns in public places "owned or operated by the state" such as "public park[s] and "natural area[s]." The statute defines a "handgun" as "any firearm with a barrel length of less than twelve inches" that is"designed, made or adapted" to be fired with one hand.
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, thirty round clip [sic] 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…And an elderly couple reported to a ranger that a man was in the park with an "assault rifle."
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.
While I grant the impracticality of Embody's approach, I'm not sure he should not have had some legal remedy for being detained for no actual legal reason. Even so, not sure what larger applications the decision would have had that made it worth his time to have deliberately ginned up the case.
A couple of Reason features by me about how to succeed in Second Amendment lawsuits, as in the 2008 Supreme Court case Heller v. D.C. and the 2010 Supreme Court case McDonald v. Chicago. In July 2009 Second Amendment superlawyer Alan Gura talked to me about his various plans for successfully extending Second Amendment protections via the courts.
