Inviting A “Stop and Frisk” By Openly Carrying an AK-47 Pistol with a Thirty Round Clip In a Public Park: An Unusual Fourth and Second Amendment Case

The case is Embody v. Ward, handed down today by the Sixth Circuit in an opinion by Judge Sutton. It begins:

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.

Thanks to Howard Bashman for the link.

UPDATE: It seems that the appellant in the case (aka the one with the gun) is now participating actively in our comment thread. Be sure to read the thread if you’re interested in knowing more about the case.

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