Category: 2nd Amendment

These are the oral arguments (mp3), before the 2nd Circuit Court of Appeals. Alan Gura is attorney for the appellant. The judges kept a lighthearted and friendly demeanor the whole time, and I get the impression they are taking the arguments seriously. For this case, I’m going to be cautiously optimistic. I think the arguments went well. This happened a few weeks ago, but I just got a link to the audio recently.

From the decision:

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.

This was a bad case taken forward by someone who doesn’t want to leave things to experts, so SAF went in with arguments that would kill the suit. The Court essentially concluded it was a legitimate Terry stop, so there was no 4th Amendment case to be made:

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.

The court skirted the Second Amendment issue by upholding the qualified immunity of the officers in question:

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).

The Bradys are, of course, treating this like some kind of victory, but the fact is we got what we wanted here, and in a pretty non-damaging way. The Brady folks could have hoped for a lot more from a suit as reckless as this. The standard for overcoming qualified immunity is pretty high, and this dismissal here does not mean what the Brady folks would like it to mean. I am sure, however, we have not seen the last of Leonard Embody’s one man crusade to ruin Second Amendment precedent in the 6th Circuit.

When addressing a crowd of gun bloggers, Alan Gura mentioned the biggest threat to our Second Amendment rights was these kinds of oddball pro se litigants, who take forward bad cases with no legal expertise, and proceed to establish negative precedent that is difficult to overcome. So far, I think we’ve seen less of that than I expected. I applaud SAF and Mr. Gura for intervening in this case, and crushing it like the cockroach in the kitchen that it was.

I’ve never really understood why we want to offer the federal judiciary grounds for finding restrictions on commonly owned arms constitutional. I’m generally a pretty big fan of Professor Eugene Volokh’s Implementing the Right to Keep and Bear Arms, which has been cited by multiple courts in Second Amendment cases. But when it came out I wrote a series of posts offering some criticism on Prof. Volokh’s paper, where I thought he needlessly ceded ground with a federal judiciary eager for reasons to uphold the status-quo on guns, and find as much as possible constitutional. Because magazines holding more than ten rounds are overwhelmingly preferred by both police and armed citizens for self-defense, it’s difficult for me to see how they can be restricted under the Heller common use test. When it comes to banning arms from civilian hands, the state should face the highest possible burden in showing either the arm is not a personal arm, and doesn’t fall under the right, or that it is, as Heller noted “dangerous and unusual.” Magazines that hold more than 10 rounds are certainly not dangerous, and nor are they unusual, at least not in relation the dangerousness of firearms generally. Prof. Volokh suggests as much in his paper. Given that they are commonly used, they ought to fall under Second Amendment protection according to Heller. I just don’t see any reading of Heller that indicated we needed to concede that ground.

I don’t believe we ought to encourage the courts to use these kinds of balancing tests where courts get to evaluate the lethality of the weapon at hand, and then evaluate how minor or major the burden on self-defense the challenged restriction presents. The rights and interests of the citizen is almost always going to be trumped by the interest of the government when the courts engage in this kind of balancing act.

I prefer a few brighter line tests, some of which Heller has suggested already. I also strongly believe in Prof. Nelson Lund’s supposition, that you have to look at police use when determining whether an arm ought to be protected, because otherwise the government’s default move is going to be to ban any new technology before it becomes in widespread use, such as many states have done with electric stun weapons.