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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Fri Dec-09-11 12:49 PM
Original message
Second Amendment Foundation and Alan Gura are anti-2A and file amicus brief which explains
They filed an amicus brief in Embody v Ward 11-5963 6th Circuit Court of Appeals. The amicus curiae clearly shows that the SAF does not believe law abiding people may carry lawful handguns in lawful places.

Embody Appeal 10-17-11
https://docs.google.com/open?id=0B4xDZlk5vthcMTg1MTY4Y2...

Ward Response 11-28-11
https://docs.google.com/open?id=0B4xDZlk5vthcM2JmZmI4Yj...

SAF Amicus 12-5-11
https://docs.google.com/open?id=0B4xDZlk5vthcODdkNmEzZW...

Embody Reply 12-8-11
https://docs.google.com/open?id=0B4xDZlk5vthcMTg0NjcyMW...
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Lurks Often Donating Member (505 posts) Send PM | Profile | Ignore Fri Dec-09-11 02:12 PM
Response to Original message
1. Did you even bother to read the SAF Amicus?
I skimmed the relevant parts and the SAF Amicus argues that while the gun is legal, the manner in which the defendant behaved was unreasonable and intentionally provocative and that the defendant intended to cause alarm and therefore not protected by the 2nd Amendment.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Fri Dec-09-11 04:15 PM
Response to Reply #1
3. Of course I read it, I am the appealant.
Lawful open carry is not unreasonable or provocative and neither is the lawful carry of an ak-47 handgun. What other behavior was unreasonable and intentionally provactive? The apealee does not have any example of any unreasonable or provacative actions taken by the appealant. If the mere bearing of arms is protected then the carry of arms may not be prohibited. If such were not the case there would be no protection at all for those who bear arms. Police, at the sight of an arm being bourne, could arrest or detain the carrier and seize the arms.

Since this is a Tennessee lawsuit I like the explaination given by Judge Whyte in 1833 who authored the opinion in Simpson v. State.

"But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, (p.360)or portion of the common law, our constitution has completely abrogated it; it says, "that the freemen of this state have a right to keep and to bear arms for their common defence." Article 11, sec. 26. It is submitted, that this clause of our constitution fully meets and opposes the passage or clause in Hawkins, of "a man's arming himself with dangerous and unusual weapons," as being an independent ground of affray, so as of itself to constitute the offence cognizable by indictment. By this clause of the constitution, an express power is given and secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature; and it is conceived, that it would be going much too far, to impair by construction or abridgment a constitutional privilege which is so declared; neither, after so solemn an instrument hath said the people may carry arms, can we be permitted to impute to the acts thus licensed such a necessarily consequent operation as terror to the people to be incurred thereby; we must attribute to the framers of it the absence of such a view.
On the authorities, therefore, I am of opinion that this record of an indictment against the plaintiff in error does not contain the charge of an affray, or any other specific offence cognizable at common law by indictment, and that there is nothing either in our Constitution or acts of Assembly in repugnancy to this conclusion, but, on the contrary, strongly corroborative thereof."

Gura claims through his brief that open carry may be banned. He is claiming that open carry in parks may be banned. He is claiming that 30 round magazines may be banned. He is claiming that ak pistols or any pistol that uses a "rifle caliber" bullet may be banned. Now, using Gura's logic the claim that someone is carrying a firearm may be enough to ban the bearing of arms. Wow, sounds pretty anti-2A to me.
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ileus Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 04:53 PM
Response to Reply #3
7. I wish you good luck.
I'd love to have an AK pistol for "jeep" carry. FWIW
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oneshooter Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 07:53 PM
Response to Reply #7
13.  If I need that kind of power, I just mount the 1919a4 on the mount in back. n/t
Edited on Fri Dec-09-11 07:53 PM by oneshooter
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LAGC Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 02:19 PM
Response to Original message
2. Hmm, that is a curious amicus brief indeed.
According to Alan Gura's reasoning, the guy in question (Embody) who was toting his AK-47 pistol was exhibiting CONDUCT that was "terrorizing" people, therefore being accosted by law enforcement for his CONDUCT wasn't a violation of his Second Amendment rights per se. It's not that the gun itself was illegal, but the manner in which it was being carried.

I do wonder what Embody was thinking painting the tip of the barrel orange and carrying it strapped across his chest in a provocative manner? It sounds like he was looking for a confrontation in the first place, and he got it.

Still, I can't help but think what kind of slippery slope it might be against open-carry in general? After all, there are some people who see someone carrying a handgun plainly visible on their belt and feel uncomfortable by that alone -- would that count as "terrorizing" behavior, conduct unworthy of Second Amendment protection?

Maybe the point Alan Gura is trying to make is that concealed-carry is protected, but open-carry isn't necessarily.

This makes sense, especially now that California banned open-carry, it makes the case stronger for shall-issue concealed-carry.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Fri Dec-09-11 04:31 PM
Response to Reply #2
4. Gura and the SAF have been moving towards licensed concealed carry.
Their brief against the bearing of arms is a slippery slope.

Embody's conduct was not "terrorizing". Who did he terrorize? No one. Did he stalk anyone? No. Did he follow anyone? No. Did he stare at anyone? No. Did he loiter? No.

Orange is not a provocative color. In any case orange is not illegal by any federal or state law.

Open carry is not illegal, in fact it is a longstanding tradition. From 1871 to 1989, in Tennessee, handguns must have been carried openly and in the hand.

The California open carry ban will likely be overturned. Nichols v. Brown cv11-09916 us district federal court central district california
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LAGC Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 04:46 PM
Response to Reply #4
5. Well, since you admitted upthread that you are the appealant in this case, answer me this...
What do you hope to accomplish with your law-suit at this point?

It sounds like you were detained for a few hours while they checked your gun out, but once they realized it was legal, they gave it back and let you go. You were never charged with any crime, am I right?

I don't mean to make small of your inconvenience, but were you actually harmed in any serious way?

It seems the cops have already learned their lesson, and probably wouldn't accost you again over the same matter in the future.

Don't you think you're being a bit grandiose with this whole thing, escalating it up the legal "food-chain" so far, or is it really just the principle of the thing that bothers you so much?

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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Fri Dec-09-11 04:53 PM
Response to Reply #5
6. 2nd and 4th Amendment violations are no joke
When law enforcement violate fundamental civil rights they must be punished. A gun was pointed at my head, I was assaulted, battered, searched, and detained/arrested for 2-3 hours. A 2-3 hour inconvenience may not mean anything to you, you might like cops to violate your rights. I, on the other hand, do not accept violations of my rights.
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LAGC Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 05:15 PM
Response to Reply #6
9. Fair enough.
What are you after though? Monetary damages?

Or do you just want to see the cops in question get seriously reprimanded, if not fired?
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Fri Dec-09-11 05:19 PM
Response to Reply #9
10. yes
Do government actors change their actions because of a reprimand? I don't think so. Monetary damages and people losing their jobs is what effects change.
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LAGC Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 05:24 PM
Response to Reply #10
12. Well, good luck then.
Be sure to come back here and let us all know what the final decision is, as I doubt too many people are following your case very closely.

:hi:
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OneTenthofOnePercent Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-09-11 04:58 PM
Response to Original message
8. Are you still up to baiting leo/prosecutors into arresting you so you can sue them?
get a new gig already.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Fri Dec-09-11 05:24 PM
Response to Reply #8
11. no
I didn't do anything to cause cops to detain me. They couldn't come up with anything either, except that I carried a gun with an orange barrel protector, and wore a camouflage jacket. Slippery slope? I think so.
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one-eyed fat man Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Dec-10-11 09:02 PM
Response to Reply #11
14. Orange barrel protector?
You could do the same by carrying an Airsoft, they come orange tipped by Federal law to indicate they are a toy.

You painted yours orange to toy with the cops?

Orange may be an inoffensive color, but I sincerely doubt you picked orange without regard to its significance.
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Abq_Sarah Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Dec-10-11 10:37 PM
Response to Reply #14
15. That's what I was thinking
While there's nothing illegal about painting your rifle whatever color you choose, an orange tip has a specific significance.

You were looking for a confrontation and got one. The police shouldn't have detained you but YOU shouldn't have acted like a dumbass.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Sat Dec-10-11 11:04 PM
Response to Reply #15
17. confrontation? NO
I did not confront anyone. It was the rangers who confronted me.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Sat Dec-10-11 11:03 PM
Response to Reply #14
16. orange = legal
There is no federal or tennessee state law which restricts the color one may paint a firearm. there is no federal or tennessee state restriction which prohibits the end user of an airsoft toy from removing or painting an orange tip on the toy. This is evidenced by many youtube videos explaining the procedure.
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one-eyed fat man Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Dec-11-11 01:45 PM
Response to Reply #16
18. So, you are
Edited on Sun Dec-11-11 01:49 PM by one-eyed fat man
saying you did not pick orange for any reason other than you like it?


Title 15: Commerce and Foreign Trade.[br />Part 1150 - Marking of toy, look-alike and imitation firearms.]

http://www.examiner.com/gun-rights-in-tucson/orange-tip...

"However, there are hundreds of How To instructions on how to remove the required orange tip on a toy gun even though it is against federal law. Numerous forums, Youtube, Airsoft groups, the list is almost endless."

Just because someone does it on Youtube does not make it legal. It does fit in with a lot of what does get on you tube, people doing things which are stupid.

As someone more eloquent than I said,

"Embody is considerably different from the usual Internet Ninja. He actually goes out in public inviting confrontation with Law Enforcement. With his known 4 (four) encounters with LE, the damage Embody has done to the RKBA and Second Amendment causes cannot be calculated. A dork is a dork is a dork."

I do have a good relationship with my sheriff. No problem at all getting his signature on a Form 1's or Form 4's.

As long as you make a practice of pissing in your canteen, it will leave a bad taste in your mouth.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Mon Dec-12-11 11:19 AM
Response to Reply #18
19. cite
...the federal law that says it is illegal for the end user of a toy gun to remove the orange markings. The federal law only governs toys that are imported and toys that are shipped interstate.

I have never initiate contact with a cop or ranger. They have came to me. They confront me. I won't call them mall ninja cops, because they don't deserve that much credit.

I don't need a sheriff's signature to own silencers. I don't need to submit phots or fingerprints.
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one-eyed fat man Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Dec-13-11 07:53 AM
Response to Reply #19
20. The guy in the article cited pegged you correctly
You took a weapon that would attract attention, painted the tip orange and went trolling for a confrontation. You tell me again you did not paint it, on purpose, as bait, and I will call you a fucking liar right here, right now.

http://www.law.cornell.edu/uscode/usc_sup_01_15_10_76.h...

TITLE 15 > CHAPTER 76 > 5001
5001. Penalties for entering into commerce of imitation firearms

(a) Acts prohibited
It shall be unlawful for any person to manufacture, enter into commerce, ship, transport, or receive any toy, look-alike, or imitation firearm unless such firearm contains, or has affixed to it, a marking approved by the Secretary of Commerce, as provided in subsection (b) of this section.

(b) Distinctive marking or device; exception; waiver; adjustments and changes

(1) Except as provided in paragraph (2) or (3), each toy, look-alike, or imitation firearm shall have as an integral part, permanently affixed, a blaze orange plug inserted in the barrel of such toy, look-alike, or imitation firearm. Such plug shall be recessed no more than 6 millimeters from the muzzle end of the barrel of such firearm.

(2) The Secretary of Commerce may provide for an alternate marking or device for any toy, look-alike, or imitation firearm not capable of being marked as provided in paragraph (1) and may waive the requirement of any such marking or device for any toy, look-alike, or imitation firearm that will only be used in the theatrical, movie or television industry.

(3) The Secretary is authorized to make adjustments and changes in the marking system provided for by this section, after consulting with interested persons.

(c) Look-alike firearm defined
For purposes of this section, the term look-alike firearm means any imitation of any original firearm which was manufactured, designed, and produced since 1898, including and limited to toy guns, water guns, replica nonguns, and air-soft guns firing nonmetallic projectiles. Such term does not include any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or traditional BB, paint-ball, or pellet-firing air guns that expel a projectile through the force of air pressure.

(d) Study and report
The Director of the Bureau of Justice Statistics is authorized and directed to conduct a study of the criminal misuse of toy, look-alike and imitation firearms, including studying police reports of such incidences and shall report on such incidences relative to marked and unmarked firearms.

(c)  1 Technical evaluation of marking systems
The Director of <2> National Institute of Justice is authorized and directed to conduct a technical evaluation of the marking systems provided for in subsection (b) of this section to determine their effectiveness in police combat situations. The Director shall begin the study within 3 months after November 5, 1988, and such study shall be completed within 9 months after November 5, 1988.

(f) Effective date
This section shall become effective on the date 6 months after November 5, 1988, and shall apply to toy, look-alike, and imitation firearms manufactured or entered into commerce after November 5, 1988.

(g) Preemption of State or local laws or ordinances; exceptions
The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall

(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional BB, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.


It would not take a lot to convince me a pinhead prancing around the park with an orange tip on a live firearm was intentionally trying to deceive someone. It would take even more to convince me it wasn't done with the intention of attracting the attention of the police with the hopes of causing a confrontation. Especially when you as much as said so on THR. A good prosecutor could likely convince twelve good citizens you meant to disturb the peace. What you were hoping for is to hit the lottery by opting for a settlement of a civil rights suit. You have every right in the world to be a shithead, be careful you don't abuse it. Not all juries are as dumb as you hope they are.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Wed Dec-14-11 11:36 AM
Response to Reply #20
23. except...
that carrying a toy gun is not illegal or menacing. If they thought it was a toy why were they concerned?

Were the people concerned it was a real gun? Why? real handguns are legal to carry.

There was no deception, the whole conversation between me and the ranger is on audio tape. I clearly state the gun is real and that it is a handgun. How did I deceive the ranger if I told him the gun was real?

The exercise of a fundamental right is not subject to disturbing the peace.
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chibajoe Donating Member (184 posts) Send PM | Profile | Ignore Tue Dec-13-11 01:24 PM
Response to Original message
21. You decided that it was a good idea to OC a Draco with an orange painted tip
and you have the temerity to be offended when the cops detained you to determine if you were in compliance of local laws. :eyes:

Gura and company were correct in their brief, and I have no sympathy for you or your plight. It's the actions of people like you that make it more difficult for the general public to see people who open carry as anything other than attention whores and jackasses, as opposed to responsible individuals exercising the Constitutionally protected rights.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Wed Dec-14-11 11:37 AM
Response to Reply #21
24. yes
The difference is that my right to bear arms and right to be free from search and detainment override the illegal actions of cops.
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YllwFvr Donating Member (757 posts) Send PM | Profile | Ignore Wed Dec-14-11 07:38 AM
Response to Original message
22. its a very difficult issue
I'm a member of several gun forums and remember your user name when this first happened. I also remember the pistol in hand episode which, while also a bit edgy, I supported your actions kwirknu. This however is just too shady. Pushing the limits of your rights is indeed one way to bring attention to possible infringements and have it corrected. However in this instance, going from memory, BDUs, black sock hat, combat boots, the draco.

I know how it goes among gun rights. Going in knowing you might get stopped. I've OCed into Philadelphia several times before ViperGTS aka Mark Fiorino got stopped and made national headlines. I knew I may end up where Mr Fiorino went. I accepted that and so too did you. If memory serves, carry in parks had just been legalized, and with your pistol incident that was a very OLD law about navy cap and ball revolvers carried in hand. I'm a gun enthusiast, and OCer, and I would have been freaked out by that. I think you went too far with the draco. Why cammies and the draco? What's wrong with going out with an XD?

I don't think I would go so far as to say you damaged gun rights but I think it was a bad choice. I still wish you the best of luck with your court case.
If you would, shoot me a PM. Here or poofa. Wouldn't mind a chat.
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kwikrnu Donating Member (41 posts) Send PM | Profile | Ignore Wed Dec-14-11 11:49 AM
Response to Reply #22
25. your recollection is wrong
I wore black boots, but they were not combat boots. I don't own any combat boots.
The only camouflage I wore was a gore-tex jacket I had purchased at the px years before when I was in the army.
I wore blue jeans.
I wore a black watch hat.
It was between 30*-40* that cold winter day and had rained a few hours before. The trails were muddy.

The law changed to allow the bearing of arms about 4 months earlier. The rangers knew the law and say so in depositions. They also say they never felt threatened by me.


The black powder navy pistol was seperate. Tennessee law from 1871 to 1989 only allowed the carry of the army or navy pistol. The law did not regulate long arms. In 1989 the law changed and prohibited the carrying of all firearms where more than 1 person is present, except for cops, hunters, and on private property. The legislature also carved out an exemption for local laws in effect before 1986. Several municipalities have "army/navy" laws on the books, still. These laws usually prohibit the carry of a handgun except for the army or navy pistol openly in the hand. In accordance with local law I openly carried a navy pistol in my hand.
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YllwFvr Donating Member (757 posts) Send PM | Profile | Ignore Wed Dec-14-11 06:43 PM
Response to Reply #25
26. thanks for the corrections
I tried looking up the thread but its a pain when its that old
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