Constitutional challenge in TN?

[rheppert]

Didn't find this elsewhere in the forum
Editorial from the Kingsport Times-News today: predicts possible upcoming lawsuit & changes in Tennessee Law

Constitution says owning a gun is a right, not a privilege
Kinsport Times-News Published August 8th, 2010


Does the Second Amendment trump Tennessee law? A Williamson County man whose handgun carry permit was suspended is betting that it does.

Leonard Embody began carrying handguns with a permit in 2001. But this past March, the Department of Safety suspended his permit, claiming there was “material likelihood of risk of harm to the public.”

Embody, who has never been arrested or charged with a crime, apparently drew the state’s attention for his habit of wearing or carrying his handguns openly, rather than concealing them as most gun permit holders do.

Embody argues that by suspending his permit, the state has denied his constitutional right to bear arms. He also correctly points out that the state’s gun carry permit law doesn’t require that permit holders conceal their weapons.

Embody has since filed suit in Davidson County Chancery Court. The suit states that Tennessee’s law that restricts handguns to only residents with a permit violates the Second and Fourteenth amendments of the U.S. Constitution.

Embody’s challenge strikes at the very foundation — and a shaky foundation it is — of Tennessee’s gun permit law.

Given the express right of the people to keep and bear arms as recently upheld by the U.S. Supreme Court, there is ample legal ground to argue that Tennessee’s law is an impermissible constraint. That view may seem radical, but Vermont and Alaska, for example, have no gun carry permit requirement.

A plain reading of the Second Amendment makes clear that owning and carrying a gun is a presumptive right, not a privilege bestowed by the state.

Given the protections provided for in the Constitution, ideally the only persons who would be denied that right would be those who had, for one reason or another, forfeited such a right — convicted felons and the mentally unstable, for instance.

Many worry that more guns equals more violence, but steadily increasing gun ownership figures and decreasing violent crime rates challenge that view. Indeed, if anything, it would appear that the reverse is true.

There are few issues that spark such intense emotions and reactions among the public as gun ownership. Anxious gun owners who compulsively stockpiled ammunition last year in the belief that President Obama would send out ATF agents to confiscate everyone’s firearms were obviously off the mark. Gun control advocates who insist that the apocalypse is just around the corner because gun ownership rates continue to rise are no less paranoid.

But it’s increasingly obvious that guns aren’t the main cause of violence in society any more than windows are the reason that people sometimes jump out of them. Nor is the problem a lack of gun laws.

In almost every example of public gun violence, the shooter or shooters were usually in violation of several gun laws before they opened fire. In the final analysis, it is society’s toleration of violence in all its forms that needs to be addressed.

Neither arming ourselves to the teeth as individuals or collectively retreating behind a wall of laws will move society positively in the direction we all seek, but have yet to find.

[Markus]

If I got this right they suspended a man's permit for doing exactly what I do 24/7...Open Carry. Is that all he was doing? That can't be right...if all he was doing open carrying constantly. Is there an update on this?
I'm not going to be terrified into Conceal Carrying. How many times have I heard "Criminals hide their weapons" from gun advocates and myself...
Open Carrying should be the standard not the exception in my opinion. Until people get used to legal non-criminal citizens carrying openly there are going to be incidences with ignorant or misinformed people and occasionally the police.
Constitutional Open or Conceal Carry is the ultimate goal in my mind...I don't care how many gripe about it with the many excuses for Conceal Carry.

[SomeGuy]

He was actually a member of this forum for a short period. A rather disruptive member. That said, unless I forgot something, he was actually within his legal rights in his actions. I do wonder if he wasn't looking for something to sue over, and based on his posts he in some ways seemed like an agent provocateur.

[Markus]

Was he the guy that took a Draco into Radnor Park in camo?
I don't approve of such BLATANT displays to make it appear you are something you aren't just to get the police to harass you. It's easy enough with many police(not all) to harass and Open Carryer without carrying a Draco AK-47 pistol while wearing camo in a park. He was within his rights as well, but he shouldn't have done that. However...nor should his license have been removed from him for not breaking the law.
If it is this guy it's also the one that walked down the road in ...where was it...an area in Nashville..with a Navy(might have been Army) caplock muzzle loader pistol in his hand. Not very wise even though it is/was the law with no mention(as Bob Pope claimed) about actually being in the military it was legal to carry one openly in the hand.
The police had every right to stop him like that under "suspicion", but after they figured out he was not breaking the law they were interpreting to their own desire they should have let him go instead of prolonging it and later talking to a woman lawyer on the phone negatively about it. The guy as ignorant as it was to walk down the road with a pistol in his hand really broke no law at all. I saw the video of the second event he posted it on youtube.
It is my wish/desire/logical opinion that the police need to HELP educate non-carrying citizens about our 2nd Amendment rights instead of inflame their fear over it by just stating the law.

I find it disturbing if he broke no laws no matter how hard he was trying to sue someone or make a point..that his license was taken.
It could easily give precedence for any problem(illegal or Legal) being used as an excuse to invalidate your Handgun Carry Permit to the DOS and others from the way this looks.
Of course most all of that flies out the window aside from the removing of a legal Handgun Permit(if it wasn't reversed) due to no truly illegal activity if he was/is as you say an "agent provocateur".
All assuming of course it's the same guy as this post is talking about.

He was actually a member of this forum for a short period. A rather disruptive member. That said, unless I forgot something, he was actually within his legal rights in his actions. I do wonder if he wasn't looking for something to sue over, and based on his posts he in some ways seemed like an agent provocateur.

[SomeGuy]

It was the same guy.

I do agree that while what he did was provocative, it was legal, and in America, provocative should not earn you a government repirsal. The government was wrong to punish him he did nothing wrong. However, I do not agree that he should not have done it. As long as he was not threatening anyone (and not a single report indicates he ever did anything threatening, beyond the standard anti gun shrill whine that he was there), he had every right to carry the gun the way he did. He even had the legal right, which is all the cops/DOS should care about.

Find his old posts on here, and I think you'll catch on to what I was saying about his true motivation.

[Fred762]

I always HOPE the policeman who stops me is aware of the various TN laws.
The only two times I've been stopped in 20 years I WAS carrying ..once open and once concealed [as I usually do].
1. Once I was stopped for making a left turn on red at the entrance ramp to I-440 off Hillsboro rd at Oh-dark-30 one morning while I was on my way to an emergency case at a local hospital. I'd fully stopped, made sure no oncoming traffic was there and haulled a&& left onto I-440. Cop who was coming up [way behind me] followed me onto the ramp and pulled me over. I happened to have a 4" .357 revolver sitting on the passenger seat and left it right there. He came up to the window, asked me for ID and I told him who I was and that I was on the way to the hospital for an emergency. His responnse was a simple.."ok doc, you be careful out here"..and he walked away. I took off for the hospital.

2. the only other time was in a local burb where I live..local cop stopped me one night on the Franklin rd {right after I had been nearly run into the curb by a guy changing lanes illegally}. He asked me for ID and then asked what I was carrying. Figuring he run my plate and seen I had a HCP, I told him I had a Glock like his and he said .."Oh I thought you might have something interesting"... and he walked off. I still wonder why he didn't go after the fool who changed lanes and forced me to the curb, but whatever!!

Personally I do not mind if the LEOs know I'm carrying since I am a law-abiding taxpayer. It's the potential muggers and robbers who I want to be surprised.........

[mcgyver210]

No matter if you like him or not the State could & will do this to anyone if it isn't challenged since he wasn't doing anything wrong. This is another case of Government trying to run us over with a fear of them taking our rights away if we don't follow their unwritten illegal mandates.

[johnharris]

Bad facts make bad laws.

It is well known that if you want to push for a test case, you have to have the best facts possible. The individual was not one who would give good facts to encourage a court or courts to focus on the constitutional issues.

[Markus]

For some reason I'm not getting email notification of replies...

I thought it might be the same guy. Well...like others I don't agree with his motivations or the way he did what he did, but as has been mentioned he broke no laws. It very well should be challenged and overturned. I do not see how it hasn't in fact.

[Markus]

Despite him not being the best person to push test cases...do you know if his license suspension was reversed or not..or if it's still in the courts? I find it amazing the audacity of the government to deny a permit to someone who even though might be provocative and arrogant broke no laws and had his license removed on the basis of a claim/assumption from the TDOS. I OC every single day what's to stop them from saying I am a “material likelihood of risk of harm to the public.” for OC'ing if I get hassled due to my appearance(as I have in the past) and carrying of a gun..or just if they decide they don't like my appearance? I have that "evil" long hair that many police believe immediately involves me with with some type of crime from my experience. I'm no damn liberal hippie that's just me and i have been harassed and profiled for my appearance in the past twice within a few miles of my home. First time it was completely obvious as I saw them look at me passing a gas station on the highway as I was getting in my car, then pulled me over down the road as they stopped and turned around to get behind me once I left the store claiming it was due to my license light being out after following me nearly all the way home trying to find a reason to pull me over I have no doubt. Both times always nearly immediately after the initial contact asking to search my vehicle(something they did not get to do).
Me? I don't even have a single Parking Ticket on my criminal record let alone any other criminal charges of any type.

I worry about this a bit now after reading how easily they revoked a license without even a criminal charge on a person that did not break a law, as I already had an incident with my County Sheriff's department attempting to mess with my acquisition of a HGCP when I applied for a duplicate license... for no apparent reason.
Also those past incidents where I was basically detained and harassed over my personal physical appearance having long hair. I can't imagine how it would have went had I been OC'ing at the time...maybe different and they see I'm obviously not a criminal being 36yo's with a legal HGCP, but just as likely may make it worse depending on the local police/sheriff officer/deputy I'm interacting with(hopefully not another one of their upgraded prison guard deputies which seem to have trouble following the law their selves particularly the individuals that profiled me obviously as well having ego and anger problems).

Anyway...got to ranting a bit there.. Is there an update on this case that you know of?

Bad facts make bad laws.

It is well known that if you want to push for a test case, you have to have the best facts possible. The individual was not one who would give good facts to encourage a court or courts to focus on the constitutional issues.

[johnharris]

It is my understanding his permit was revoked on the assessment by the Dept of Safety that he was a risk to the public or something of that nature.

[1gewehr]

While I would have also chosen a different approach for a 2nd amendment challenge in TN, this is the one we have. I would have chosen a different approach than Mr. Embody. I would have been less confronting, and less belligerent. Still, Mr. Embody has put his life and his liberty on the line for his beliefs. I admire him for his courage and his convictions. Perhaps he has indeed forced the issue.
I do not agree with what John Brown did at Harper's Ferry in 1859 by trying to foment an armed slave revolt. By all accounts, John Brown was an obnoxious and belligerent person. But he died for his beliefs, and gained enormous support for the abolition of slavery.
While I hope and pray for a peaceful resolution of Mr. Embody's actions, I also hope for a similar end result; the abolition of gun control.

"I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!" Barry Goldwater - 1964

[Markus]

It is my understanding his permit was revoked on the assessment by the Dept of Safety that he was a risk to the public or something of that nature.

Aye, I know this. I was wondering if anyone knew if he won his case or lost to illogical thought and an INVALID "assessment"...by the DOS. What could they have "assessed"? He broke no laws. Of course he wasn't going about it the right way, but he broke no laws. If they are allowed to keep this "we say you can't have a gun" power without a permit holder breaking any sort of law at all, then that is a MAJOR blow to TN Gun Rights.

I don't care who is on trial or how much anyone personally dislikes someone this is still a load of BS when it comes to the TDOS invalidating his Handgun Carry Permit with no legal reason and what should be the law's opinion ...their authority. If TDOS has the authority to remove a handgun carry permit from anyone not breaking any laws that is wrong period. It should be immediately reversed in the courts. It is ridiculous and frankly disturbing if this is a being upheld still...if it has been. I can find no updates. TDOS should not have the power to arbitrarily remove anyone's license without the breaking of serious related gun laws or otherwise violent illegal events that have been charged and convicted by the Court upon the person who's license is being removed.

[Markus]

My honest opinions of course are all that I post. I do not intend to incite. This is a valid issue, however. I know there are many others, but it seems like this guy's issue is getting "let slide" for whatever reasons and it's not just this guy's inadvicable actions on trial here. TDOS having arbitrary decision making on licensing for citizens not convicted of a violent gun or drug related crime to me is the government again overstepping the bounds of the Constitution of the United States of America.

[johnharris]

Although I do not have a copy at the moment, it is my recollection that he lost the court fight on this issue.

[johnharris]

Although I do not have a copy at the moment, it is my recollection that he lost the court fight on this issue.

[Markus]

Although I do not have a copy at the moment, it is my recollection that he lost the court fight on this issue.

Thank you for the information..about the conclusion of the case. That is unfortunate no matter what the guy did provocatively. It is, in fact an affirmation that they(State Bureaucrats) can now do this to anyone, as he lost the case.

Hopefully I won't be deemed a "risk to public safety" for having a long hair style with no criminal record whatsoever, while open carrying next time a deputy or PD that doesn't understand the law(and has a Profiling chip on their shoulder) challenges me for OC'ing...as I do 24/7 except when I sleep. First thing I do when I wake up is get dressed and put on my belt which will always(God willing) hold my .45 cal. It's part of my Life Insurance Policy.
Far fetched? ..maybe. Televise me on local T.V. for such an incident even without an ounce of guilt, even if it's a minor misunderstanding on the LEO's side, then I doubt it would be too far fetched given the negative example this case seems to give the power of "people who tell you what you can do" to those that have no legal right to do so unless under specific legal circumstances.

We cannot pick and choose(based on personal opinion) who to try to help/save from leftest bureaucrats that write a note telling a legal permit holder they no longer have the right to carry by revoking his/her license based on their "opinion" or politics. Actually sure we can, but it is counterproductive to Gun Rights.
The more I think on it...the more I can't imagine how he lost at least reinstating his license in this absurd case unless he was declared insane. I don't suppose he was helped by the TFA....?

Too late now at any rate. Has this been discussed/addressed at ALL elsewhere(aside from this forum) in the TFA? I don't tend to attend monthly meetings, though I may attend the Nashville one sometime especially if the Rutherford Co. "Chapter" remains dead as it is.
I'm not seeing to much agreement with just letting a guy rot due to his perhaps over the top provocative actions, but LEGAL actions nonetheless. I assume he was a member of TFA as well, due to his youtube videos..and the person that Bob Pope asked "do you have your license" while he SELF interpreted a Tennessee State Gun Law like a..very unintelligently in my honest opinion as he interpreted it incorrectly to suit his own opinion just as the police attempted to do with the very same person that addressed him that walked down the street with one in his hand at dusk. Ill advised or not. It was completely legal.

I'll stop now before I get completely off topic with my dislike of pseudo-gun "rights" advocates..akin to perhaps our Lt. Governor or Beth Harwell...or perhaps IMHO a few of our own membership in the TFA. Gun "Rights" until it's not politically expedient RINO's.
There are what now? 4 States with Constitutional Carry now? We need to be the 5th. This is what the Constitution says. It is how it should be.
Allowing something like this to happen to a licensed carrier for any reason if he was not legally insane or otherwise is kind of horrific considering the implications...which would be that Bureaucrats at TDOS or perhaps another State agency having the ability to arbitrarily "take" someone's rights for exercising his/her rights with no regulations or laws broken. Just undereducated Law Enforcement and a television/newspaper reporter are apparently all that's required. It goes against Common Sense and Logic as does all anti-gun rhetoric and actions.