UPDATED
(Guns Save Life.com) – We’ve seen a couple of open carry stories in the blagosphere in recent days, both of which embody embarrassing behavior on the part of supposed “pro-gun” activists which are really little more than knuckleheads of the highest order.
First up was the douche nozzle (DN) who paraded around a neighborhood in Oregon with what appeared to be a MP-5 suppressed slung across his back.
This was causing some consternation and fear on the part of everyday Oregonians that noticed a man walking down the street with a rifle slung behind him and that led to police intervention. Who woulda thunk it?
This young kid was baiting the cops – as evidenced by him carrying a camera just waiting for the police to stop him and quiz him. Surprise, surprise, he got his wish. The cop who initiated contact was well-versed in firearms rules and reasonable articulable suspicion and was a model of professionalism.
Mr. DN did us all a real disservice by a) setting off on his little adventure, b) by being such a phallic head to the very professional police officer who went above and beyond to be courteous, welcoming and kind to a douche nozzle and c) to further compound his idiocy by posting the video on the Internet where it has gone viral.
Now, we’re all about gun rights activism, but this DN’s behavior was quite counter-productive to our rights and I’ll tell you why: It is so far out of the mainstream that it leaves everyday Americans who have not really formed an opinion about carry laws to have a very negative opinion of carry, particularly open carry, when they see something like this. When you scare people (sheeple) and their children without a pretty darn good reason, you’re doing activism wrong.
Yes, they may be sheeple, but sheeple vote, just like we do. And when you make an enemy on guns, it takes a lot of work to bring them back around.
A simple-minded, thoughtless walk to “exercise our Second Amendment and go for a stroll” by this dipstick can do a lot to set back our cause in a half-hour.
Consequences
Want an example of asinine, attention-whore behavior such as this negatively affecting policy decisions far, far away?
Last year in Illinois, the good guys (gun owners group leaders) were negotiating with the bad guys (anti-gun forces in the Illinois General Assembly) to craft a bill that was acceptable to enough people that we would have the votes to pass it.
The reason the antis were negotiating at all was because Democrats had passed a number of very unpopular bills in literally the last hours of the previous session, to include a 66% hike in personal income taxes, gay marriage or its equivalent, the abolition of the death penalty and probably a few others. The consensus was that downstate Democrats needed some “red meat” for their constituents or they were dead meat come the 2012 elections. We thought we could strike a deal to make everyone at least sort of happy. (We invite our readers to remember who passed the tax hike and death penalty abolition come the November elections, by the way.)
So, we’re negotiating and the topic of prohibited locations came up. One of the folks on the other side demanded libraries be “off limits” in the right-to-carry proposal. I asked our lead negotiator, “Where in the heck did that come from?” (keeping it family friendly) and he told me, “he knows some library big shots who heard about gun activists in Michigan (if I recall correctly) going on open carry walks through their libraries and that’s why he wants libraries off limits.”
In the end, that bill failed on a floor vote in the House thanks to, as the story goes, Mayor Daley and the Cook County Board president making calls to some “squishy” yes votes and threatening to leave their relatives who were employed by the City of Chicago or Cook County standing in the unemployment line should they follow through on that yes vote.
Leonard Embody
And that brings us to Leonard Embody, who like the DN in the LiveLeak video above, is an attention whore out looking to invite five-oh into his life in an effort to elicit a rights violation on the off chance it might turn into a civil rights judgment. Embody thinks being an obnoxious jerk strengthens our gun rights.
Embody, who is known as Kwikrnu on some internet firearms forums (well, before his acerbic personality sometimes gets him banned), decided one day to walk through a Tennessee park with what looked like a Krink subgun slung. Tennessee law allows for open carry of sidearms by those with carry permits.
Our rocket scientist Embody decided he’d push the envelope slinging up what would appear to be a rifle on himself, complete with a discrete 30-round magazine, and set off on a stroll through the park. Of course, he painted the tip of the muzzle orange so as not to cause concern among passersby.
Yeah, orange tip. That’s all it takes to assuage nervous everyday folks who aren’t familiar with guns and gun laws.
I know you’re going to find it hard to believe he found himself getting proned out by a nervous park ranger.
Sure enough, he got his wish.
They turned his silly butt loose after declaring his “pistol” really was a pistol.
They later pulled his permit. Hard to believe, I know. We should clarify that was after he was walking down the street holding a black powder pistol.
If you say Leonard Embody is the embodiment of poor decision-making, you would be correct.
To Cliff’s Notes about his little Tennessee park escapade are that Embody sued and brought his charming personality to the federal courts.
Guess what? He lost. On all counts.
Here’s a very lively (for a court opinion) introduction to the finding of the Sixth Circuit:
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].” Tenn. Code § 39-17-1311(b)(1)(H). 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. Id. § 39-11-106(a)(16).
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.
And, just for giggles, we add some choice excerpts from the findings:
Embody does not quarrel with this accounting of what happened. To his mind, all that matters is that carrying an AK-47 pistol in a state park is legal under Tennessee law; the gun’s resemblance to an assault rifle, the conspicuous arming of it, his military clothing and the concerns of passers-by add nothing. But the constitutional question is whether the officers had reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failed investigatory stops would lead to successful § 1983 actions. Having worked hard to appear suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers, to say nothing of passers-by, took the bait. The officers stopped him only as long as it took to investigate the legitimacy of the weapon and, at his insistence, bring the supervisor to the park. No Fourth Amendment violation occurred.
…Embody’s Second Amendment claim fares no better. Noting that state law authorized him to carry this gun in the park, he argues that temporarily disarming him necessarily was a “per se Second Amendment violation.” Br. 10. But § 1983 claims are designed to vindicate federal law, not state law. He offers no explanation why the officers’ alleged failure to comply with state law itself violates the United States Constitution in general or the Second Amendment in particular. The “[m]ere violation of a state statute does not infringe the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 11 (1944).
To the extent Embody means to argue that the Second Amendment prevents Tennessee from prohibiting certain firearms in state parks (and thus prohibited Ward from detaining Embody on suspicion of possessing an illegal firearm), qualified immunity is the answer. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). No court has held that the Second Amendment encompasses a right to bear arms within state parks. See District of Columbia v. Heller, 554 U.S. 570 (2008) (individual right to bear arms in the home); United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) (upholding regulation prohibiting firearms in national parks). Such a right may or may not exist, but the critical point for our purposes is that it has not been established—clearly or otherwise at this point. That suffices to resolve this claim under the Court’s qualified-immunity precedents. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
For these reasons, we affirm.
We applaud the decision.