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]

[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]

[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]

[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]