Gun Control

How to Fail to Make Second Amendment History

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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.

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  1. Detaining people just because isn’t permissible. Repeal the stupid permit requirements and carry restrictions.

  2. The Second Amendment Foundation is actually soft on individual liberty. Good to know.

    1. Because they don’t want to be the equivalent of Richard Mourdock on the abortion question?

      1. Because they don’t want to be the equivalent of Richard Mourdock on the abortion question? idealists.

        1. Yes, that’s what I said.

          1. I wasn’t disagreeing with you, per se. I was just offering my opinion as well.

      2. They’re not running for office, they’re a single issue organization. Some people already have the notion that a firearm openly displayed is automatically cause for alarm. Better for the foundation to stay silent on the subject than to feed into that idea.

  3. 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.”

    These people need to get over themselves.

    1. clip

      I know, right?

    2. Ugh, the right angle bracket is not available for me to mock your ignorance of firearm terminology. Cure you Reason!

      ?
      ?

      1. For future reference, “›” may be used to mock reason’s cosmotarian firearm jargon ignorance.

        ?clip

      2. Welcome, “magazine” people! Enjoy your show!

        1. Also, it’s a “pistol” or “rifle”, not a “gun”, unless you have a very long johnson.

          1. Et tu, Brute?

            1. Military boot camp punishment for calling one’s rifle a “gun”: running around alternately hoisting one’s rifle and grabbing one’s junk, shouting at the top of one’s lungs, “This is my rifle, this is my gun; this is for fighting, this is for fun.”

              1. The military is pretty much the only place I encountered that are like that, though.

                Hell, two of the three firearm stores in my city are named GUN something or other. Guns is just a catch-all word for man-portable firearms.

              2. You joined the wrong service. Now that’s a GUN!

              3. I’m not in the military. When I go home I’m not Romeo-Tango-Bravo, I “go home” and I give somewhat less than two craps what the military calls it. Same here.

          2. I think that using “gun” for small arms is common usage outside of the military.

        2. Anyone getting upset over the use of the word clip instead of magazine…

          IS A FUCKING ASSHOLE! Get over it. The meaning of words evolve. Every gun owner I know uses the word clip. I never knew it was an issue until corrected by some uppity shithead. Know how I responded? I looked him in the eye and said…

          …YOU’RE A FUCKING ASSHOLE!

          see 4

          clip
          1. A device, typically flexible or worked by a spring, for holding an object or objects together or in place
          2. A device such as this used to hold paper currency
          3. A piece of jewelry fastened by a clip
          4. A metal holder containing cartridges for an automatic firearm

          1. I realize that language evolves. I just hate when it happens because people are dumbasses who don’t know the actual meanings of the words they use.

            And keep in mind that a clip for an M1 Garand or SKS fits that definition perfectly. Yes, those guns both use “clips,” but they’re just pieces of metal that feed internal magazines, which allow for the actual loading of the cartridges into the chamber.

          2. I guess it depends on where you live. Every gun owner I know does make a distinction between a clip and a magazine.

            Sometimes in a technical discussion–for instance the parts of a mechanical device–it’s better to be precise.

            1. I suspect it’s more a function of the type of shooting one does. I think people who shoot tactical type weapons are generally more precise in their terminology. I grew up hunting…with guns and clips.

              1. I think too if the person is heavily involved in gun rights politics they tend to be touchy, and with good reason: anti-gunners (and the journalists who love them) are extremely sloppy with their language, and this seems to be done on purpose to confuse and scare people.

                1. ^^^^^^^^^^^
                  THIS

            2. I guess it depends on where you live. Every gun owner I know does make a distinction between a clip and a magazine.

              When I was in the Marine Corps, any Marine heard referring to his “clip” was immediately tossed in the brig, basted down to E-1, and dishonorably discharged. And the only proper use of the word “gun” was in reference to artillery or naval guns. You carried either your “rifle,” your “pistol,” or your “weapon.” While I”ve been pargely deprogrammed of that shit, it’s still like nails on a chalkboard to hear someone use “clip” in place of “magazine.”

              1. I call it a “bullet slider” to avoid insulting anyone.

                1. +1 cartridge feeder

                2. “Can’t we all just get along?”

              2. I’ve been in this man’s Army for thirteen years, and its just fine to say “gun” and “clip”, and people who freak on this point are choads.

          3. “Clip” = En-Bloc (M1 garand/carcano/etc)

            “Magazine” =/= “Clip”

            Semantics ..hell yeah

          4. It’s simple. A clip is for feeding a magazine, while a magazine is for feeding the weapon.

          5. 4. A metal holder containing cartridges for an automatic firearm

            “Cartridges”? You mean, like, bullets?

          6. And definition #4 is perfectly correct. And it doesn’t mean what you think it means.

            http://www.proguns.com/ar15-stripperclips.asp

            There is a stripper clip for an AR-15. It is used to load rounds into an AR-15 magazine. A magazine has a spring in it and is used to feed rounds into the chamber of a firearm.

            1. I am perfectly aware of the technical difference between a magazine and a clip.

              AND I DON’T FUCKING CARE!

              The words are now interchangeable, and have been for at least the last 48 years. Let it go. 😉

              1. If you know the difference then why did you post the dictionary definition for a clip and attempt to say that it is identical to a magazine?

                1. Because that definition fits both.

  4. That ranger had no more right to disarm and detain Mr. Embody than Mr. Embody woud have had to disarm and detain the ranger.

  5. The more acclimated we become to what the 2A guarantees, the better. Think Switzerland.

    1. Unless you’re going to or from militia exercises, Switzerland’s carry laws are way stricter than most US states’.

      1. Ever since 1999 and 2008 (Schengen). Prior to that a carry permit wasn’t necessary.
        They’re of course incredibly difficult to get, except for those who are more equal than the rest (naturally).

        1. I didn’t realize it changed 🙁 I was there in the mid 90’s and I knew everyone was used to it because of compulsory service. But they still have shooting ranges everywhere (unless that’s changed too) so I don’t think the militia exercises restriction is accurate

  6. This was the guy who painted the muzzle orange so it looked like an air soft gun.

  7. As others have noted, the correct term is magazine, not clip.

    Second, you guys left out the part where the moron painted the tip of the gun orange, which is usually used to mark realistic-looking fake guns.

    Third, this paragraph:

    marching around a national park in camo with a gun with a nearly foot-long barrel and a full 30-round ammo clip across your chest

    is sensationalist, ignorant ninnyism. Most firearms of that type of 16-18″ barrels. This particular firearm was designed to get around the National Firearms Act of 1934*, which regulated short-barreled rifles. Because of the seriously messed up gun laws, you cannot take a rifle and make its barrel shorter than 16″, but if you take a new reciever that has never been in a rifle configuration and build it so that it has a less than-16″ barrel and don’t put a buttstock on it, you can call it a pistol and it will still be legal, despite it essentially being the same exact thing.

    *The NFA was originally intended to ban pistols as well, but they couldn’t get that included. This makes the ban on short-barreled rifles and shotguns completely and utterly idiotic, but for some reason its still around.

    1. I should say, you can’t do it without going through a lot of paperwork. It wasn’t a complete ban, but you need to get a BATFE permission slip and pay $200 to do it.

    2. Really? I thought the ban on short barreled rifles/shotguns was intended to prevent those (usually) more powerful firearms from also easily concealable.

      (yes, I know a .50 S&W handgun is more powerful than a 10/22, but I’m talking about the usual cases. Plus a .50 is not terribly concealable in its own right, and you can’t put a foregrip or buttstock on a handgun to help with the recoil of more powerful rounds)

      1. I bet this would be easily concealed . . .

        1. You ever picked one of those up at a gun show or the gun store? They’re so huge and heavy that it’s stupid. What a retarded gun.

          1. Just cause you’re a wuss with no upper body strength is no cause to diss a pistol you can’t wield. =)

          2. Designed as bear guns.

          3. You ever picked one of those up at a gun show or the gun store? They’re so huge and heavy that it’s stupid. What a retarded gun.

            Never held one. The longer-barreled one is probably useful for hunting, and I believe it even comes with a sling. As for a short-barreled version, that’s the last thing a person is going to carry for personal defense. Still reasonably concealable, I’m sure, at least for a bigger person.

            1. The first time I saw a 500 Smith was in a commercial on one of the Sunday killing hunting shows. They were clearly advertising it as a bear gun. If you recreate around grizzlies, it is a good choice. You probably won’t shoot it more than a dozen times, and if you really need it it will most likely be at a range where it’s unlikely you’ll miss or care about the wallop you are about to receive. The short barrel makes it easier to carry while hiking or fishing.

              I think when I finally buy a bear gun it will be one of these though. Easier to carry.

              1. Oh, I know it’s advertised as a bear gun, I just still think it’s stupid. Just get a Super Redhawk in 454 Casull and it’ll do the same job without being quite as retarded.

          4. You ever picked one of those up at a gun show or the gun store? They’re so huge and heavy that it’s stupid. What a retarded gun.

            I’m with you on this one. I can’t imagine why I would want one.

            1. I’m with you on this one. I can’t imagine why I would want one.

              The You Tube is chock-full of people using these things to shoot watermelons. I’ve never shot watermelons, but it looks like a shitload of fun. Other than that and maybe bear hunting, I can’t think of any good reason to own one either, unless you just like toys. The ammo’s gotta be crazy expensive.

      2. Not really. That’s the retconned reason for it. After all, the law effects even rifles chambered in .22LR. If the rationale had been power, they’d have included some mention of how powerful a gun is in the law, similarly to how hunting regulations are written.

        Their main concern was concealability. The people who wrote the law didn’t want anyone to have any firearms that could be easily concealed. Pistols were too popular, though, so their inclusion in the bill was removed, while the short barrel restrictions on rifles and shotguns remained.

        1. I always kind of assumed it also had to do with magazine capacity as well, in 1934, 7 round pistol mag was hi-cap/ taticool, 5 rnd mag was the average. Tommy gun w/no butt stock @20-30 rnd, sawed off m-1 carbine @ 15-30 rnd or sawed off Winchester 05?etc. No SBR/SBS ever had “a sporting purpose/hunting” which was a completely bullshit rationale spawned from the U.S v. Miller decision.

        2. Hmm, I’d have to see some evidence of that. The other explanation is simpler.

          While it seems to make sense to base the restrictions on muzzle energy, that’s going to be kind of weird in practice since the energy depends on the type of ammunition used.

          1. http://en.wikipedia.org/wiki/N…..Background

            The purpose of the NFA[1] was to regulate what were considered “gangster weapons” such as machine guns and short barreled shotguns.[2]…Originally, pistols and revolvers were to be regulated as strictly as machine guns; towards that end, cutting down a rifle or shotgun to circumvent the handgun restrictions by making a concealable weapon was taxed as strictly as a machine gun.

            Conventional pistols and revolvers were ultimately excluded from the Act before passage, but other concealable firearms were not: the language as originally enacted defined an NFA “firearm” as:

            A shotgun or rifle having a barrel of less than eighteen inches in length or any other weapon, other than a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machinegun, and includes a muffler or silencer for any firearm whether or not such a firearm is included in the foregoing definition.[3][4]

            1. So now they go after evil-looking “Gangsta” weapons like The AK-types or TEC-9.

              Personally, I’d rather the Gangstas have the POS TEC-9 falling apart in their hands that something more robust like a Beretta 93 …

  8. I’m surprised people actually noticed. Most people just don’t pay that much attention to what people around them are wearing.

    My two most recent visits to National Parks I saw multiple people openly carrying. My wife on the other didn’t see anyone.
    Granted, no one had a gun quite as big as this guy, but I did see more than a few full size 45s.

    Also know of a fellow here in Illinois who had a thigh holster specially tailored to meet the legal definition of a ‘case.’ He walked around his town, stores, and a mall for a few days before someone actually noticed and called a security guard to check him out.

  9. I actually applaud this guy. He’s doing the heavy lifting in the fight to re-secure our 2A Rights.

    The people who push the boundaries of the law are the ones that get changes implemented, not the ones that go along with unconstitutional restrictions and try to expand their rights in a courtroom without standing.

    “Private Joker Leonard Embody is silly and he’s ignorant, but he’s got guts and guts is enough.”

    1. The people who push the boundaries of the law are the ones that get changes implemented,

      Yes. Unfortunately sometimes the changes that they get implemented are rushes to judgement that make things worse by closing the “loopholes” at the boundaries of the law.

      1. I am afraid you and Generic Stranger are probably correct. Unfortunately, our enumerated rights are rapidly deteriorating to where only the right people have them.

        I’d be willing to bet if you put a skinhead asshole in a courtroom because he was wrongfully arrested for marching outside a black church carrying a sign with “NIGGER” written on it, a majority of people would hope he lost the case even though the 1A was written almost exclusively with idiots like him in mind.

        1. even though the 1A was written almost exclusively with idiots like him in mind.

          Leaving aside the fact that carrying that sign past a gathering of blacks would have been met with applause from nearly everyone eligible to vote in 1789, you also need to keep in mind that the 1A was not supposed to apply to the states when it was written.

          1. You have a very bizzare sense of history, Tulpa. Even in the days of slavery, not everyone was a virulent racist. The Quakers, of whom there were quite a few in colonial New England, were abolitionists since 1680-something. As of 1789, in Pennsylvania slavery has already been outlawed for nine years. The artist William Blake was so disturbed by the inhumane treatment of African slaves that he drew several graphic images to draw attention to the issue.

            The list goes on and on.

            1. Opposition to slavery was totally compatible with racism.

              1. Opposition to slavery was totally compatible with racism.

                That’s true, but a large number of early abolitionists were actually more forward-thinking than Civil War-era abolitionists, we’re talking 1789, right?

                Besides, you claim that a sign that said “Nigger” would have been me with applause from nearly everyone eligible to vote in 1789, i.e. White, male land owners. I disagree. I’m not even counting the fact that during the 18th century, the word “nigger” was no more pejorative than “colored” or “negro” was, it was simply how Anglophones referred to Africans.

          2. Yeah, it was supposed to apply to the people regardless of what state you happened to be in.

            Jesus, Tulpa.

            1. Funny that no jurist of the time shared your opinion. If you ever get access to a time machine, your first order of business should be to go back to Independence Hall and straighten them the hell out on what the words they wrote meant.

              1. Yeah, and if you ever get a time machine your first order of business should be to go back to your mother’s childhood home and cut her head off.

                1. OK, that might have been a bit over the top.

                  1. Maybe just a bit. But damn if Tulpa doesn’t deserve it sometimes.

    2. Unfortunately, he’s going about it in the most retarded way possible. They say bad cases make bad law, and this guy is the poster boy for it. You can’t win if you act so stupidly that even your own side doesn’t want to support you. Judges are going to go looking for excuses to rule against him, and they they’ll seize whatever is handy.

    3. I actually applaud this guy. He’s doing the heavy lifting in the fight to re-secure our 2A Rights.

      I agree. It takes balls to assert yout 2A rights in such a brazen fashion, more than it takes to assert your 1A rights by picketing or whippin gan angry letter to th editor.

      1. whippin gan angry letter to th editor.

        *whipping off an angry letter to the editor.

        1. Whipping Gan would make a good dub step band name

      2. The Southern militias were pretty much kaput until John Brown’s Harpers Ferry revolt woke them up to the “dangers” they faced. If it hadn’t been for JB, the Confederacy would have been in no position to put up a fight a few years later.

  10. One of the things we tend to overlook, as libertarians, is that as people move from being obediant to being independent, a great deal of silly posturing will take place. Bad manners, insulting behavior, and egregious stupidity will overcome the better sense of basicly decent folk- pretty much like kids coming of age. As being a free person becomes more accepted, this sort of silliness will subside.

    In the more mature society, the complainers at the park, themselves being armed, dangerous, and confident, would have merely chuckled at Embody and asked him for which of his body parts that pistola was to substitute.

    1. As being a free person becomes more accepted permitted, this sort of silliness will subside.

      People are finally starting to take the tyranny of our government seriously. It will get better, but only if men like this are revered instead of reviled.

      1. Why in the world would I revere a man whose intent was to draw attention to his beliefs by frightening old people? If he had been out hunting in his cammies with his hunting piece, that would have been different. No, his point was to incite fear.

        Rather than a practicing libertarian, this guy was a model dim-wit.

        1. No, his point was to incite fear.

          Maybe. Maybe it was to incite comfort around people peacefully open-carrying. And maybe t was to incite an unconstitutional police response so he could get standing in a courtroom.

          It would be better to ask him what his intention was rather than to guess at it.

          And FWIW, the only people I feared open carrying when I lived in an open-carry state were the police officers. And it didn’t matter if the “civilian” was open carrying a rifle, shotgun or .50 Magnum with a 12″ barrel.

          1. “Maybe it was to incite comfort…”. Puhleeze. If he had been packing his .45 on his hip while dressed in going-to-the-park clothes, your point might be well-made. A wanna-be combat warrior playing games doesn’t cut it.

            Look, I am no more a fan of statist police than you are. But you know what? Even private park police would have reacted the same way. The man just took the wrong tactic.

            1. If he had been packing his .45 on his hip while dressed in going-to-the-park clothes, your point might be well-made.

              Oh, so khakis and a polo with a gun on his hip is fine, but open carrying while wearing an outfit he feels more comfortable in is right out?

              A wanna-be combat warrior playing games doesn’t cut it.

              I’m not too familiar with what yuo would call “combat.” Most sane people wouldn’t call walking around a park openly displaying a gun and interacting freely and peaceably with other people any form of “combat” they’ve ever heard of.

              The man just took the wrong tactic.

              Right. He should have asked permission and made sure he didn’t startle or offend anyone while he was exerting his 2A right.

              Question: would you say a person was likewise “doing it wrong” if he held a poster of an aborted fetus on a sign near an abortion clinic? Or if he held a sign with “There is no God.” outside a Baptist church and got arrested?

              Rights are for everyone, not just the people sensitive to those around them. If the people were afraid of a man that had made no overtly aggressive act toward them or another person, then that’s their problem, not his.

        2. Why in the world would I revere a man whose intent was to draw attention to his beliefs by frightening old people?

          Imagine if your other rights were conditional on whether or not they frightened or offended others.

        3. Rather than a practicing libertarian, this guy was a model dim-wit.

          The Bill Of Rights was written for libertarians and dim-wits alike.

          1. Don’t blame the constitution. The ranger acted correctly based on the information he had. The guy was mildly inconvenienced, his piece checked out and returned, and sent on his way.

            if you want to gripe, gripe about laws which enumerate which arms are legal or not. Then have them repealed. Hint: the ranger was verifying the legality of the gun, not his right to have one.

            1. Don’t blame the constitution.

              You might want to take a reading comprehension class. I never “blamed” the constitution. I merely said it applied to this guy as much as it does to a practicing libertarian, whatever the fuck that means.

              The ranger acted correctly based on the information he had.

              Oh really? And what information did he have? A few people said he scared them but could not articulate any reason that would give the park cop cause to even approach him, let alone require ID or to give up possession of his legally purchased and displayed pistol.

              The guy was mildly inconvenienced, his piece checked out and returned, and sent on his way.

              The 2A doesn’t read “The right to keep and bear arms shall not be infringed upon past a mild inconvenience.

              if you want to gripe, gripe about laws which enumerate which arms are legal or not. Then have them repealed.

              Right, because we’re only allowed to have one gripe in the assault on the 2A.

              Hint: the ranger was verifying the legality of the gun, not his right to have one.

              Again, the 2A does not say “The right to keep and bear arms shall not be infringed upon past a check to make sure your guns are legal.”

              1. You never answered my mentally ill question from earlier.

                So you think schizophrenics should be allowed to carry firearms on the streets because 2A doesn’t specify an exception?

                1. It depends. Are they institutionalized? If not, then I think they should have every right and privilege guaranteed in the Constitution.

                  1. That’s crazy. You’re crazy.

            2. The ranger acted correctly based on the information he had. The guy was mildly inconvenienced, his piece checked out and returned, and sent on his way.

              So then it would be OK if, while out hunting, we ran across an armed ranger and briefly detained him to make sure he and his piece “checked out,” right? I mean, as long as we give it back onve we’re satisfied he’s legit?

              1. When you walk towards the exit of Walmart, the manager has a right to stop you, the customer, and ask to see your receipt if he suspects you didn’t pay for some of the items you’re leaving with.

                However, you the customer do not have the right to stop the manager and ask to see his inventory reports if you suspect he’s embezzling on the side.

                Note that the manager is NOT the owner, before you start saying it’s private property so it’s different.

                1. The manager is the owner, dumbass. He’s acting as his agent which means the owner has granted him the responsibility to run the place. It also makes the owner liable for his actions within those walls as long as he’s following policy.

                  I know you’re just trying to play devil’s advocate here, but you’re not doing a very good job of it.

                  1. The manager is the owner

                    So the manager can take items out of store inventory and bring them home without telling anyone about it? As Spock would say, double dumbass on you.

                    He’s acting as his agent which means the owner has granted him the responsibility to run the place.

                    Yes. Like the park ranger! Hence my sharp retort to the nihilist Teutonic pornstar above.

                    1. You very well saw he talked about agent/principal relationship in the very next sentence you mendacious twit.

                    2. ….which is irrelevant to my point. If the ranger violated the man’s right’s, of course the owner (govt) can be sued. No one’s disputing that.

                    3. So the manager can take items out of store inventory and bring them home without telling anyone about it? As Spock would say, double dumbass on you.

                      It depends. Is the manager made out of straw? Actually, if the company has a policy addressing the taking of merchandise out of the store that allows the manager to do so, then yes he can. I ran the back of the house at a restaurant that gave me an open and unlimited tab at the bar and it included taking wine home whenever I wanted. I often took full advantage of that policy. Either way, that is between the two of them.

                      Yes. Like the park ranger! Hence my sharp retort to the nihilist Teutonic pornstar above.

                      Um, a public servant does not have the right to break the law as he sees fit in a public space as if he was the lord of the fucking manor.

                    4. Oh come on. If the restaurant owner tells the homeless guy who lives next to the dumpster in back that he has an unlimited bar tab, does that mean the homeless guy is the owner?

                      For what you did to be legal, you needed the owner’s permission. Ergo you are NOT the owner.

                    5. Apparently, the Owner/Agent concept is foreign to you. Or you’re just being a twat.

                2. Government agents are held to a different standard than private actors. You’ve been informed on this previously.

                  1. Government agents are held to a different standard than private actors. You’ve been informed on this previously.

                    Immunity is a pretty horseshit court invented doctrine that ought to be overturned. But I think that’s irrelevant to the point at hand.

                3. When you walk towards the exit of Walmart, the manager has a right to stop you, the customer, and ask to see your receipt if he suspects you didn’t pay for some of the items you’re leaving with.

                  And you have the right to tell him to go fuck himself and leave whatever you have in your hands/cart and walk out the door. He does not have the right to detain you against your will as this man had done to him.

                  1. Yes, he does have the right to forcibly stop you if he suspects theft. Shopkeeper’s privilege.

                    If he uses excessive force, or uses force without something to back up his suspicions, or detains you longer than is reasonably necessary to determine whether the items were paid for, you can sue his ass off and he doesn’t have qualified immunity. But that’s another matter.

                    1. If he REASONABLY suspects theft. What s the reasonable basis to suspect this man committed a crime? Can you stop anybody who is openly carrying? If not, why not, and what’s the difference?

                    2. generally speaking (it varies state to state), private persons cannot detain based on REASONABLE SUSPICION. they need PC and in some cases, “in fact committed” (which is usually interpreted as witnessing the crime).

                      a store owner can question but if he goes to grab and physically detain based on reasonable suspicion, he very well may lose a civil suit and there is even a remote possibility of criminal charges

                    3. The firearm he was carrying was specifically designed to resemble one that would be illegal to carry there.

                    4. You mean it was legal! It had an orange tip, so it would’ve looked like a toy.

                    5. Going from H+R-2012 to Volokh is like getting promoted from the kiddie table at Thanksgiving.

                    6. i know it’s refreshing. very very little sloopy’esque trolling. my comments are under “pwhit”. it really is a breath of fresh air. discussing legal/constitutional law at H&R is almost pointless. witness this thread. compare to volokh.com. the legal issues are actually discussed almost completely devoid of word games and intellectual dishonesty. there is only one truly troll-like person there of that ilk – kirkland. other than that, it’s fair sailing

                    7. You can both leave anytime you want, Mr. Guy Answering Door with Gun Deserved Death.

                    8. But what happens to H+R when the good commenters leave?

                    9. I’ll be here a good long while.

                    10. “But what happens to H+R when the good commenters leave?”

                      That’s very public spirited of you, Tulpa.

                    11. Yeah volokh was so refreshing, what with people screaming about the children for half the thread.

                    12. What ever happened to sarcastro?, he was usually good for a little mild trolling. You are right though, Arthur Kirkland was often insufferable, although he did have his moments of clarity.

                    13. i know it’s refreshing. very very little sloopy’esque trolling.

                      WAAAAAAAAH!!!!!! WAAAAAAAAAAH!!!

                      What’s the matter? Tired of being exposed?

                      Oh, and I like how you dodged my comment up top about having to witness a crime to be able to make a citizen’s arrest but coming out and saying exactly the same thing downthread ( they need PC and in some cases, “in fact committed” (which is usually interpreted as witnessing the crime).)

                      Remember, he said he could make an arrest if he went to get beers and he came back and thought I had robbed him. I refuted it and you said I was wrong: the above poster is (as usual) wrong on the law.…only to say later in your post exactly why I was right about the law.

                      Damn, dude. You’re so wrapped up in hating me that you don’t even know which way you’ve contorted your argument.

        4. Why the fuck are people frightened by the sight a of (camouflaged) dude carrying a slung firearm?

          1. Ask Nanny Tulpa. Something something public safety.

    2. as people move from being obediant to being independent

      This happens in your science fiction novel of the far distant future?

  11. The guy was lucky it was a park ranger and not a cop. His “furtive, threatening movements” would have satisfied the OFFICER SAFETY shoot first, ask questions make up a story later protocol.

    1. troll-o-meter: .01

  12. Every gun owner I know uses the word clip.

    I was talking to an ex not-currently-on-the-payroll marine I know, who said they called them “clips” when he was on active duty. We then had a brief and most probably meaningless discussion about the possible distinction between fully enclosed, self-contained cartridge dispensing devices and the sort of open spring alignment device used in rifles such as the M-1.

  13. My understanding of the law regarding carry in national parks: the rules conform to the laws of the state in which the park is located. However, I have been told open carry is not allowed in Yellowstone (presumably to eliminate such situations as this, and to keep the park’s visitors from being made to feel intimidated by scary guns). Every building in the park has a sign which says NO GUNS ALLOWED.

    The real benefit of the law was to relieve people in states like Montana and Wyoming from going through a lot of fucking around with their truck guns and carry pieces when they entered a park.

    1. The rules conform to the state where the park is, which means in Yellowstone open carry is perfectly fine.

      http://www.nps.gov/yell/parkmg…..licies.htm

      Just don’t go into a building with a piece on your hip because you suddenly become a dangerous person.

  14. So he was only carrying the pistol? Not pointing it at anybody, brandishing it, shooting up the landscape? So why the panic?

    1. Because guns are icky and people are pussies.

  15. (Best John Wayne voice)
    “…well not until you eat the peanuts out of my…”

  16. Never really thought about it liek that dude.
    http://www.Anon-Ups.tk

  17. Why lookee here. The fine folks at Jezebel put Donderoooo #1 on their list of hysterical right wing reactions.

    1. That’s bullshit. He has to be #3 behind Sean Hannity and Ann Coulter.

      1. Awik has more “hyster” than Ann ever will.

    2. The “ladies” at Jezebel are seeking to refine his salty tears into a surprisingly crisp premium bottled mineral water with a pleasant but subtle, all natural ham flavor. Whether or not he is free range is another matter entirely.

    3. They needed a “libertarian” to be the most unhinged about an Obama victory.

  18. Kennedy’s on Stossel.

  19. As soon as I read the snippet, I knew it was Sutton. I could smell the smug from here. I guess if the vaunted Brady Campaign said it, then it ought be entered into permanent jurisprudence, right? Jeez, what was his point in mentioning that?

  20. Allan Ripley, I don’t know you, but I’d like you to answer me a question: If an elderly couple told the cops they were “very concerned” about you and what was possibly going on in your house, would you be fine if they detained you and took possession of your house until they determined you posed no risk? Because that’s exactly what happened to this guy. It just happened in public.

    “Free in their persons, houses papers and effects” applies to everyone all the time, not just when they’re acting in a manner you judge to be appropriate.

    1. “Free in their persons, houses papers and effects”

      FIFY

      /SCOTUS

      1. Until DEA shoots you, your daughters and your dog for drugs.

        1. Until DEA shoots you, your daughters and your dog for drugs.

          You mean “Until DEA shoots you, your daughters and your dog for no reason because they mistook your house for one two houses down that some informant claimed was being used to sell pot and they didn’t bother to verify the address or substantiate his claim in any way, shape or form.” Right?

          1. Your daughters were merely burned by flash bangs ?casually tossed through their window by our SWAT team, and a little traumatized. You can always buy another dog. Quit whining like a little girl with a skinned knee, shit happens. It’s all for your safety , so quit bitching and thank us for protecting your slightly burned daughters from teh drugz!

    2. In my house, my property, and in the park, “in public”, are two completely different places, aren’t they? You flog off the difference with your “it just happened in public”.

      The park is not his property. That is property owned by someone else. Big difference.

      If you can’t understand the difference, sign up for a remedial course in “Libertarian” and “Constitution” (not that I’m all that fond of the Constitution, the statist faux-contract)

      Your question is answered.

      1. Can you ban protesting on the National Mall? If not, why not?

        1. Does protesting on the national mall have a clear connection to dangers to the public safety?

            1. Depends on the circumstances. But it’s certainly not comparable to a protest.

              1. So no, is what you meant. And what, protests have never turned dangerous before? Ha.

                1. I meant what I wrote.

                  I know you like to edit other people’s comments for them, but I must request that you not perform this “service” on mine.

                  1. Respond to the argument or don’t respond at all. Not in the mood for your games.

                    1. Your editing my comments is not an argument.

                    2. Don’t protests turn violent sometimes?

    3. If the cops then arrived at your house to check it out and heard gunshots, whips, and screaming and no one answered the door, yes, it would be totally reasonable for them to burst in and make you eat carpet while they figured out what the hell was going on.

      If it was later discovered that you were just watching torture porn with the volume way up, you’d have no cause of action IMHO.

      1. So what? I didn’t mean to get you started on the disanalogous analogy kick again.

  21. I’m pretty sure the permit law allows the police to stop anyone carrying to confirm they have the permit and if their weapon is legal. When you get a permit you agree to such inspections.

    1. Dude, if it were that simple it wouldn’t have made it to the Sixth Circuit. Come on.

    2. “When you get a permit you agree to such inspections.”

      I’m not sure that you have to give up one right to enjoy another, can you explain that statement?

    3. Ah, I figured it out. You don’t need a permit to open carry.

      1. If I understood the subtle nuances of the Heller decision, every state must allow for one or the other (no permit open carry + permitted concealed, or vice versa)

        1. Heller didn’t address carry at all.

      2. Actually, it looks like you need a permit to carry in Tennessee, whether it’s open or concealed. Here is the site that explains their somewhat convoluted system.

        Looks to me like Tennessee is decent because it’s “shall issue.” I think they just found a revenue source to exploit…or some might call it an infringement.

        1. Fleecing a fringe sect of the public for enjoying a constituently protected right, what’s wrong with that?
          I suppose a poll tax, and comprehension/competency test in order to vote isn’t really that big of a pain in the ass either, come to think of it.

    4. I’ve been reading the statute and it doesn’t look like that’s necessarily the case. Anybody from Tennessee on here that could answer that question?

      Either way, I guess if the cop wasn’t specifically trained on the law, he couldn’t be required to properly administer it.

      Also, the federal law (and that includes the 4A) trumps state law. Requiring people to submit to an otherwise illegal search because they had a legally owned and carried firearm sounds unconstitutional. I mean, could they make it a provision that if you have a permit, the cops were free to enter your residence without a warrant to make sure the gun was secured properly? I don’t think a federal judge would let that fly, and it shouldn’t here either.

      1. He wasn’t searched.

        1. How do you know the entire details of his detention?

          He had property taken away without cause and he was detained with no cause against his will. Isn’t that enough?

          1. The guy would have said he was searched if he was searched.

            And there was reasonable cause to temporarily secure the firearm and detain him. Just like a cop performing a Terry stop can take away a totally legal firearm from a totally law-abiding citizen for the duration of the encounter.

            1. Who the fuck thinks a Terry stop is constitutional?

              1. In fairness, it is. It should not be, however.

                1. Then it’s not. The powers that be just pretend it is. Which is all too common.

              2. 4A says “unreasonable search and seizure”. Your idea of unreasonable is different from other people’s, in this case the people who matter. It sucks that it’s so vague, but that’s the way it is.

                1. We knew that from the original post. If that’s all you were doing, you could have spared us. The fact is, though, that you like this man was detained.

                2. Seeing as the sentence in the 4A goes on to say that warrants may only be issued upon probable cause and under oath and specifically address what is to be searched and what is to be seized, I think it was pretty clear by what they meant.

                  1. Nope. A warrant is a certification of reasonability. There’s no reason to believe that any search without a warrant is ipso facto unreasonable.

                    If a cop is walking through a parking lot and hears moaning and cries for help coming from the back of a trunk, he doesn’t need a warrant to get someone to open it so he can see what’s going on inside. You disagree?

                1. Warren Burger!

        2. It was a seizure, however slight.

          1. And if sloopy had said seizure, that would be an important thing to note.

            1. Try arguing what I said then. Which is that it’s a seizure.

              1. It’s a reasonable seizure under the circumstances. The ranger had reason to believe it was an illegally carried firearm, and returned it once it was determined to be legal.

                It’s not like he took it back to an evidence locker and made the guy sue to get it back.

                1. Can I stop on suspicion of being black? Or gay?

                  1. This is the part of the show where Randian throws semantic spaghetti against the wall in the hopes that something will stick.

                    1. What was the reasonable basis for the stop, Tulpa? Stop being a fuckwit and answer the question.

                    2. I don’t like it mind you, but there is plenty of legal precedent for this.

                      Can a game warden stop a hunter to check that he hasn’t shot more than his limit?

                      Can he check a duck hunter’s ammo to ensure he is using non-toxic shot?

                      They can and they do. I think they can do it because most states make getting a hunting license predicated upon agreeing to these terms.

                      This is a little different however. It’s not the right to search that’s at issue. The issue is whether limiting ones second amendment rights, by limiting barrel length, to begin with, that’s at issue.

                    3. Hunting is not a fundamental right.

                    4. Hunting is not a fundamental right.

                      LOLOLOLOL.

                      I guess we can ban that Mall protest after all, since standing on grass isn’t a fundamental right.

                    5. Hunting, like driving, is not a fundamental right. You can LOL all you want to, O Glib One, but that’s a fact. The cases are disanalogous, a condition with which you ought be intimately familiar by now.

                    6. “I guess we can ban that Mall protest after all, since standing on grass isn’t a fundamental right.”

                      Mall protest == 1A
                      standing on grass =/= to 1A

                      “Dont mix the swag with the kind”

                    7. Carrying shotgun with 5 shells in it == 2A
                      Hunting =/= 2A

                      But you better not let the game warden catch you with a shotgun with 5 shells in it in a waterfowl hunting area.

                    8. That’s what I said. The issue is whether the state has the right to limit your barrel length OR where you can carry. Has nothing to do with the search OR 4A.

                      If they didn’t put a stupid restriction on 2A (barrel length) there would be no suspicion that a “crime” had been committed and therefor no basis for a search.

                      Fight the right battle.

                    9. You were making it sound as if this sort of stop were routine. It isn’t.

                2. It’s a reasonable seizure under the circumstances. The ranger had reason to believe it was an illegally carried firearm, and returned it once it was determined to be legal.

                  And what “reason” did he have? His ignorance of the law IRT open carrying in the park is not a “reason,” and shouldn’t be treated as such.

                  It’s not like he took it back to an evidence locker and made the guy sue to get it back.

                  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,…that last more than a short period of time and don’t result in their items being stolen.” – Tulpa’s 4A.

                  You’re a nitwit.

                  1. Your 4A apparently doesn’t include the “unreasonable” qualifier… which under some interpretations means precisely what you faux-quoted me as saying.

                    1. And you apparently don’t think it’s “unreasonable” when a man is carrying a weapon that is perfectly legal is detained and his property is seized because the cop does not know the law he is being paid to uphold. Fine. Good luck expanding liberty with that mindset.

                  2. The reason was he was unable to determine the exact length of the barrel by visual inspection. Can you tell the difference between 11.5 inches and 12.5 by eye?

                    1. Can you tell the difference between 11.5 inches and 12.5 by eye?

                      So it’s better to err on the side of restriction than liberty? Especially when the guy was doing nothing wrong at all.

                      And if it was merely a matter of measuring barrel length, the cop could have asked the guy what model the gun was and he could have checked it online later or called it in and asked the guy to stick around while he checked it out.

                    2. “Excuse me sir, is that a pound of C4 explosive you’re carrying into that airport?”

                      “No, it’s just play-doh for my kids.”

                      “All right, move along.”

  22. Now Welch and The Jacket are on Stossel.

    1. Talking MJ.

      1. I’ve always preferred redheads to blondes.

  23. “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.”

    To be detained is not the same as to be arrested and booked. If you visited my house and I had a suspicion you had robbed me while I got the beers from the fridge, I would detain you until I could establish the truth of the matter.

    That is actual legal reason.

    1. You would need to be able to articulate that suspicion. Dressing in a certain way is not sufficient articulation.

      1. He was carrying a firearm specifically designed to look like one that would be illegal to carry in that situation.

        1. He was carrying a firearm specifically designed to look like one that would be illegal perfectly legal to carry in that situation.

          It’s like you want to make it his fault that the cop who detained him and seized his property didn’t know the fucking law. That’s dunphy territory you’re entering, Tulpa.

          1. It’s also perfectly legal to wrap a water pistol up convincingly in electric tape, go out on the street and randomly point it at people (so long as you don’t otherwise threaten or attempt to extort anything from them). I hope you wouldn’t blame citizens or police for detaining/coercing such a person at least until they discovered it wasn’t real (hopefully before the water pistol wielder was riddled with bullets).

            1. No, it’s no legal to do that. And that isn’t what he was doing, so chalk up another analogy fail n your part.

              1. What law would that break? Other than some catch-all like disorderly conduct, which could just as easily include this guy’s antics.

                And you need to go back to SAT analogy training. The analogy

                red:firetruck :: green:broccoli

                does not require that a firetruck is broccoli.

                1. How are pointing what appears to be a weapon at people and simply carrying one around the same thing? How was his conduct disorderly?

                  The crime would be brandishing, Tula, which, again, is not what embody did here.

        2. see: below. i link to the volokh.com thread where embody actually PARTICIPATED in the discussion. it was one of the better comment threads we’ve had over there. i participated as pwhit btw

          but with over 500 comments…

          1. Doesn’t look like he participated much beyond doing an Edmund Hillary impression.

    2. To be detained is not the same as to be arrested and booked.

      If he is not free to leave at his will, then it should be treated exactly as an arrest. His liberty is being deprived by an agent of the state.

      If you visited my house and I had a suspicion you had robbed me while I got the beers from the fridge, I would detain you until I could establish the truth of the matter.

      Kidnapping is a felony, and if you did that to me, you’d be up on charges. What you can do is call the police and file a report that I had stolen something from you. You can order someone off your property but you cannot detain them against their will on it unless they had trespassed.

      1. This is the part of the show where sloopy makes shit up.

        You can detain/citizen’s arrest, you better have a shitload of evidence to back up your suspicions since you don’t have QI.

        1. What am I making up? QI doesn’t mean in this case. It just means the taxpayers will pay out the settlement instead of the cop that didn’t know the law he is being paid to uphold.

          If someone tried to citizens arrest in that situation, they better be damn sure the person was not invited into their home.

        2. and of course this varies state to state.

          the above poster is (as usual) wrong on the law. you CAN detain against their will even if they hadn’t trespassed. but you better have DAMN good PC, and in many states, “in fact committed” level of PC if you don’t want your ass sued.

          1. Yeah, I’m wrong dunphy.

            Um, no. The first step in making a citizen’s arrest is to witness a crime taking place. If you “think” someone robbed you while out of the room, you have no probable cause to arrest them.

            That’s pretty much “Citizen’s Arrest 101” there. And you just failed the class.

  24. this had good coverage over at volokh.

    the affiant in the case (embody) actually participated. his viewpoints are… … “interesting” . the general consensus was that the rangers acted reasonably. but of course viewpoints were all over the map.

    also, general consensus was that while it isn’t illegal in that jurisdiction, to take a real gun and try to make it look like a toy by painting the tip orange, as embody had done, that it’s the height of idiocy

    it has a LOT of comments. one of the longest comment threads i’ve ever seen there

    http://www.volokh.com/2012/08/…..ment-case/

    1. to clarify, mr embody – the guy who this case is about, participated in the above volokh.com comments

      he offered some good insights on why he did what he did, and was able to flesh out some details (assuming he is being truthful) about what happened beyond what the articles and court cases state.

      it’s interesting to read. props to mr embody for participating

  25. HMMM. Watching The Big Lebowski. What kind of drink should I fix myself?

    1. A mean Caucasian, Jackie

      1. Way ahead of you!

    2. Tea, Earl Grey, Hot

      1. Shut the fuck up Donny!

  26. Will someone please summarise this discussion? I have an appointment.

  27. “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”

    I would not be surprised if he was a plant from the former.

  28. What this article fails to mention is the REASON the guy’s detention was so long:

    The ranger(s) didn’t know the law.

    They had to call up the chain of command to get somebody to explain the law to them, because they didn’t know it.

    That means that BY DEFINITION the guy’s detention was not reasonable. They had to lack probable cause to detain him, BY DEFINITION.

    If the LEO doesn’t know what the law is, they can’t have probable cause to believe you’ve broken the law.

    Some fucking yokel ranger looking at a guy and thinking, “Well, shucks, he’s got a gun. That’s GOTTA be illegal!” is not probable cause.

    You have to know the exact details of the elements of the crime in the law, and you have to be able to believe that the conduct you’re seeing is in violation of those exact details.

    As soon as the rangers admitted they didn’t know the technical aspects of the law, the stop was unreasonable.

  29. It’s also perfectly legal to wrap a water pistol up convincingly in electric tape, go out on the street and randomly point it at people (so long as you don’t otherwise threaten or attempt to extort anything from them). I hope you wouldn’t blame citizens or police for detaining/coercing such a person at least until they discovered it wasn’t real (hopefully before the water pistol wielder was riddled with bullets).

    In that case, you’d have a situation where the police would have probable cause to believe that the guy was breaking a law that the police KNOW and can POINT TO. If the gun was real, his action would be illegal; the police know the menacing law, and can point to it, and can establish how they believed that what they were seeing gave them probable cause to believe the law was being broken; therefore detaining him until you realize the gun isn’t real would be reasonable.

    In this case, the rangers didn’t know the law. That means they can’t point to a specific law and say, “We thought the guy was breaking this law, so we detained him until we determined he wasn’t.”

    If you can’t write in your report exactly what law you stopped the guy for breaking and your exact basis for believing that what you saw gave you probable cause for believing that law was broken, you deserve to lose.

    1. That’s pretty much what I was saying above, but you put it more eloquently.* Thanks.

      *In my defense, I was trying to discuss it with Tulpa at the time and had to continually dodge his strawmen arguments.

      1. Asking you to own up to the logical consequences of your position is not a strawman argument.

    2. Uh, Fluffy? The ranger pointed to the law against carrying firearms with barrels longer than 12 inches in a state park.

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