Irresponsible Open Carry Activism Jeopardizes The RKBA

[Rob Pincus]

Go looking for trouble and you will find it: http://www.volokh.com/2012/08/30/unusual-fourth-amendment-second-amendment-case/



The camouflage was an extra special touch of whacko.


-RJP

 

[pnac]

What strikes me as hilarious in this thread is thinking about the 1960s and 1970s when it was left-wing activists who were toting the guns in public. The conservative, get-a-haircut crowd was worried, and now look at us. We just don't see how the wheel has turned.

Good point Blue Train!

 

[manta49]

My opinion first open carry is not allowed here. Maybe its a American thing but if i seen someone open carry i would be thinking prat look at me with my gun i am a big man. If i could see some advantage carrying this way i might think differently. Concealed carry has saved the life of people here. If they had being carrying open they would have being shot before getting a chance to use it. Open carrying here would just draw unwanted attention and possibly set you up for a bullet.

PS .To me its a bit like someone that does body building. That buys the smallest tightest t shirt and poses waking up and down the street thinking look at me with my muscles. If i saw one and we all have, i think prat same as if someone was open carrying.

 

[jimbob86]

If you, as a concealed carrier, see a person openly carrying an AR-15 into a theatre, do you leave? Or do you yell, HIP, HIP, HURRAY for the RKBA.

You can't just shoot him on sight. That could prove to be murder. You just thought you shot the next Aurora Movie Shooter, when you shot somebody going to theme party or some such. You can't shoot somebody for what they might do. If he's threatening people with with it? Shooting people? By all means! Move and shoot!

Likewise, a LEO can not make you eat pavement (or worse- as in the case of Erik Scott in Las Vegas 2 years ago) just because you have a gun on your hip (or in your IWB holster). Or should not be able to, as it does happen. When there is video of it, there can be negative consequences, and thus there would be less of that.

 

[Frank Ettin]

...I fail to se how this is "Civil Disobedience"...

It's probably not. But some folks insist on bringing in Rosa Parks and trying to draw parallels to the Civil Rights Movement. That is fallacious on several levels, as I, and others, have pointed out.

...Don't OC because the public is not used to that and will call the police, and you (and us, by association) will look bad....

Not many, though. Most seem to be drawing the proper distinction between carrying a gun openly because it's legal and convenient way for you to carry a gun for protection and carrying a gun openly to try to make a political statement.

...How do you suppose the public will get used to OC?...

Beats me. But it's not necessarily by rubbing someone's nose in it.

The problem is that many simply assume that carrying a gun openly will help acclimate the public to people carrying guns openly. But no one I've seen have ever come up with any evidence that's the case.

n the real world, when commercial enterprises want to influence public opinion, they don't guess. They first test possible strategies with surveys and focus groups.

 

[zukiphile]

It's probably not. But some folks insist on bringing in Rosa Parks and trying to draw parallels to the Civil Rights Movement. That is fallacious on several levels, as I, and others, have pointed out.

Calling a comparison a "non-starter", or noting that OC isn't a cause he hears about in church isn't identification of an actual fallacy. That doesn't mean that a diffrence of opinion is unreasonable, just that it isn't a fallacy.

On the other hand, subjecting the OC right to a standard, such as one who seeks a confrontation has no basis for complaint , illustrates a fallacy of special pleading where there is resistence to applying it as an actual standard.

Responding to a position with an accusation that one who takes it plays into an "ego wannabe role" is nothing less than a fallacy of the argument ad hominem.

Employing fallacies in an argument doesn't mean the conclusion is wrong, just that the stated reasoning relies on a fallacy.

The problem is that many simply assume that carrying a gun openly will help acclimate the public to people carrying guns openly. But no one I've seen have ever come up with any evidence that's the case.

I did in this thread. POs, people, openly carry and it doesn't cause panic. It is an ordinary sight.

People of a certain age will remember kids riding the bus in NYC with a .22 on the shoulder on their way to school. Things one sees routinely tend not to strike one as a big deal. That there is ample evidence of this principle at work doesn't mean you are wrong in all instances, but there is evidence to support it.

 

[Frank Ettin]

...On the other hand, subjecting the OC right to a standard, such as one who seeks a confrontation has no basis for complaint , illustrates a fallacy of special pleading where there is resistence to applying it as an actual standard...

However, it looks like the Sixth Circuit would disagree with you (and agree with me). See Embody v. Ward (Sixth Circuit, No. 11-5963, August 30, 2012), at pg 5:

...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....

...POs, people, openly carry and it doesn't cause panic. It is an ordinary sight...

Police officers wear uniforms or display badges and are well known and expected by the public to be armed.

...People of a certain age will remember kids riding the bus in NYC with a .22 on the shoulder on their way to school....

That was then, and this is now.

 

[manta49]

Quote. People of a certain age will remember kids riding the bus in NYC with a .22 on the shoulder on their way to school. Things one sees routinely tend not to strike one as a big deal. That there is ample evidence of this principle at work doesn't mean you are wrong in all instances, but there is evidence to support it.


Just because people get used to something because they see it all the time. Doesn't mean they like it or approve of it.

 

[thallub]

What strikes me as hilarious in this thread is thinking about the 1960s and 1970s when it was left-wing activists who were toting the guns in public. The conservative, get-a-haircut crowd was worried, and now look at us.

Bingo!!
Politicians in CA were scared out of their pantaloons at the sight of Black Panthers carrying rifles in public. The result was the Mulford Act.

 

[Glenn E. Meyer]

Read Gun Fight by Winkler to see how the folks who probably yap about gun rights today freaked out by Black Panthers using open long arm carry to celebrate their 2nd. Amend. rights.

I recall this conversation (not to start an abortion debate - don't). On an interview show, a pro-choice doc was asked about protecting himself. He started to wax poetically about the virtue of a 1911. The anti-abortion guy had a crappola fit, screaming about gun nuts. Not predictable by current political stereotypes.

It is all in the context.

As I said - if I were in a theatre, place of worship, mall, etc. - and you stroll in with significant exposed armament, I am strolling away with the family and figuring out how to shoot you dead - to be blunt.

It is relatively risk problem. Someone who is OC'ing is making a statement. What is the statement?

Three Cheers for the RKBA or Die All of YOU who should die because I'm mad over something and have a neurochemical disorder.

The abstract right to open carry - not a big deal in the field. I do on private land and hunting vs. the risk profile we now have in public places has to be balanced.

In TX, it is legal to stroll around as long as you cover your butt and genitals. Thus, you can wear a flesh colored thong and bicycle round by the school yard. Is that a plan? It's your right. Let's let the kids be used to your proclaiming your legal rights to dress that way.

In fact, we had a guy do that down the fancy pants neighborhood - with no PANTS. Cops were called.

Now let's say this guy was open carrying in his thong and decided to walk down your street when the school bus was loading up?

Three Cheers for the RKBA and NO PANTS!

It may be a silly example - but it makes the point that context changes the evaluation of the act.

 

[zukiphile]

However, it looks like the Sixth Circuit would disagree with you (and agree with me). See Embody v. Ward (Sixth Circuit, No. 11-5963, August 30, 2012), at pg 5:

If you read the case, the court doesn't adopt the standard you suggest or any standard that would result in Rosa Parks having nothing to complain about. That court found the POs to have reasonable suspicion. Simply observing a person legally engaging in open carry can't itself be reasonable suspicion.

Also,I am sure you would not want to rely on a fallacy of argument by authority.

Police officers wear uniforms or display badges and are well known and expected by the public to be armed.

That begs the question "Why are they expected to be armed?". The answer to that question is because it is routinely observed.

That was then, and this is now.

While undeniable, that observation doesn't argue against the proposition that making an event routine tends to allow people to become more familiar with it and less alarmed by it.

 

[Glenn E. Meyer]

That is an empirical question. We don't really know that in today's world, more exposure to open carry will habituate folks or prime them to be more negative.

Either is possible and probably will happen in some cases.

If the balance of folks take it negatively, then the OC is for social change as compared to tactical advantage will be misguided.

I can make the case for both processes. I will opine that with rampages occurring periodically you will get what is called an availability cascade where negative attitudes towards seeing guns in public will become viewed as threatening. Guys with guns are just seen as threats.

I don't think increasing concealed carry does that as it is seen as defensive and not posturing.

 

[zukiphile]

I don't think increasing concealed carry does that as it is seen as defensive and not posturing.

The beauty of CC is that it isn't seen at all.

Personally, I find open carry awful on a practical level. When tensions rise, it makes a fellow feel like a target.

Beyond my personal sense, we can already see a change in police culture regarding carrying openly. How would one make the public more comfortable with OC without engaging in it? Demonstration that a firearm isn't itself a threat to anyone's safety seems a plausible method of education.

 

[Frank Ettin]

...the court doesn't adopt the standard you suggest .... That court found the POs to have reasonable suspicion. Simply observing a person legally engaging in open carry can't itself be reasonable suspicion.

Actually the court adopted essentially the same standard I did suggest. I didn't refer to merely legally openly carrying a gun. I wrote (post 67):

...if someone is seeking a confrontation and consciously acts in a way to provoke one, he really can't complain when he gets one....

...That begs the question "Why are they [police officers] expected to be armed?". The answer to that question is because it is routinely observed...

No, it is because we have assigned to the police certain responsibilities and have decided at some point that carrying out those responsibilities reasonably requires that they go about carrying firearms.

...that observation doesn't argue against the proposition that making an event routine tends to allow people to become more familiar with it and less alarmed by it.

Even that isn't always true. Consider many zoning ordinances. In many communities, the repeated appearance of people working on their cars in view of the street or parking RVs in view of the street, resulted in the adoption of land-use rules prohibiting such activities.

 

[zukiphile]

Actually the court adopted essentially the same standard I did suggest.

Frank, that isn't correct. The court set forth the basis for the POs reasonable suspicion. Seeking a confrontation wasn't the basis for the RS. The defendant in that case displayed specific behavior (like displaying a weapon one could reasonably conclude was not legally possessed or painting the item in a way that suggested an attempted deception) that gave rise to articulable RS.

The difference is material. If I seek a confrontation, but do nothing to provide RS, I am not subject to detention. One could give a PO a hard time with a bad attitude, maybe call him names and be an all around jerk, but that wouldn't be RS.

In the cited case, the defendant provided RS.

No, it is because we have assigned to the police certain responsibilities and have decided at some point that carrying out those responsibilities reasonably requires that they go about carrying firearms.

If you believe that people think that each time they see a PO, and that is why they are not alarmed, we do not agree.

that observation doesn't argue against the proposition that making an event routine tends to allow people to become more familiar with it and less alarmed by it.

Even that isn't always true.

I don't belive we disagree on that.

 

[jimbob86]

You want proof that people seeing guns on people's hips routinely makes it normal?

Arizona. How many people make "Man w/ a gun!" calls there because someone has a holstered gun? It's normal because it is often done.

It the same way out in western portions of Nebraska. If you have a holstered gun, people are not calling the cops.....

 

[Frank Ettin]

You want proof that people seeing guns on people's hips routinely makes it normal?

Arizona....

And you want proof that it doesn't....California.

...In the cited case, the defendant provided RS...

No, the defendant didn't provide reasonable suspicion. Embody, the guy with the gun, wasn't the defendant. He was the plaintiff. Perhaps you didn't fully read the opinion or you don't understand the case.

In any case, your characterization is a little overly simplistic. It would be more accurate to say that Embody's conduct, engaged in to provoke a confrontation, was of a nature and sufficient to give rise to a reasonable suspicion.

As the court noted, Embody at pg 2:

...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....

 

[jimbob86]

And you want proof that it doesn't....California.

That's just it: It was not routinely done in California. Then one day the Black Panthers took up arms.
Open Carry of loaded guns was banned ...... and who is gonna openly carry an empty gun? So nobody did. It was not viewed as normal, thus marginalizing the activists who insisted on trying to excercise their 2A rights. Once again, OhNOES! Scary people who are different from me got GUNZ! and all Open Carry was banned. Pay no attention to that incline, or the grease on your feet there, Californians........

 

[zukiphile]

And you want proof that it doesn't....California.

Post hoc ergo propter hoc?

No, the defendant didn't provide reasonable suspicion. Embody, the guy with the gun, wasn't the defendant

Indeed, you are correct on that.

Perhaps you didn't fully read the opinion or you don't understand the case.

I am wondering if you really think that getting the party's designation wrong means that I didn't understand the case. I understood enough of the case to locate the court's writing about reasonable suspicion, the articulated basis for the stop.

Embody’s AK-47, carried openly and fully loaded through a state park, gave Ward ample reason for suspicion that Embody possessed an illegal firearm. The barrel was a half-inch shy of the legal limit, and, when coupled with the thirty-round ammunition clip, it reasonably could look more like a rifle than a handgun. All of this explains the reactions of visitors to the park, who became frightened at the sight of a man in camouflage carrying an AK-47 across his chest, including one couple who reported
a man with an “assault rifle.” R.22-3 at 6. Making matters worse (or at least more suspicious), Embody had painted the barrel tip of the gun orange, typically an indication that the gun is a toy. An officer could fairly suspect that Embody had used the paint to disguise an illegal weapon. On this record, an officer could reasonably suspect something was amiss.

The scope of Ward’s investigation also was reasonably related to the
circumstances that justified the stop.

Emphasis added.

In any case, your characterization is a little overly simplistic. It would be more accurate to say that Embody's conduct, engaged in to provoke a confrontation, was of a nature and sufficient to give rise to a reasonable suspicion.

Then how is my characterisation overly simplistic?

Seeking a confrontation wasn't the basis for the RS. The defendant in that case [sic - should be plaintiff-appellant] displayed specific behavior (like displaying a weapon one could reasonably conclude was not legally possessed or painting the item in a way that suggested an attempted deception) that gave rise to articulable RS.

...Which is what you note is more accurate.

It would be more accurate to say that Embody's conduct, engaged in to provoke a confrontation, was of a nature and sufficient to give rise to a reasonable suspicion.

Emphasis added.

That some police behavior was predictable after Embody's behavior gave rise to RS doesn't mean that "seeking a confrontation" is some sort of substitute for articulable RS (itself a pretty low standard).

Therefore, the court in Embody does not adopt a rule that one seeking a confrontation cannot complain.


Why does that matter in this thread? Because the issue this thread presents involves OCers who have a presumed intent to be confronted by POs. That is distinguishable from conduct giving rise to reasonable suspicion; most people stopped by POs do not intend to provide that, and the intent to do so isn't pertinent to the legitimacy of a stop.

 

[Frank Ettin]

And you want proof that it doesn't....California.

Post hoc ergo propter hoc?

Nope. The particular circumstances and politics leading up to the banning in California of loaded open carry in 1967 and unloaded open carry in 2012 are well documented.

...Why does that matter in this thread? Because the issue this thread presents involves OCers who have a presumed intent to be confronted by POs. That is distinguishable from conduct giving rise to reasonable suspicion; most people stopped by POs do not intend to provide that,...

Whether it does or not will be up to the court.