2nd Amendment Foundation files brief AGAINST OC

While I understand people have different feelings about what kwiknru did in TN, I personally find it troubling that SAF filed an amicus brief AGAINST him.

They are basically saying that open carrying an AK47 pistol with an orange tip and a banana magazine while wearing camouflage isn't protected by the 2nd amendment.

What's next? Pink guns?

http://dl.dropbox.com/u/19481227/Gura saf amicus brief for embody ward 12-5-2011.pdf

Here is the salient quote

But for purposes of this case, it is enough to note that the Americanpublic, and the police and judiciary which serve it, are not expected to
tolerate men in camouflage walking about nature sanctuaries with
orange-tipped AK-47s disguised as toys, complete with 30 round
“banana” magazines, slung across their chests.

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Plaintiff should be grateful for what he conceded wasthe police’s calm, courteous and respectful professionalism in dealing
with his behavior.

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I should be grateful to only be harassed at gun point and not arrested?

could we get more details on this Ak47 story?

EDIT: perhaps it's in the .pdf, but I cannot open it at work. if this is the case disregard my post

As soon as I find out kwiknru's name, I'll be contacting Calguns and SAF. :cuss:

protias said:

As soon as I find out kwiknru's name, I'll be contacting Calguns and SAF. :cuss:

Click to expand...

Hint.... read the PDF I linked to. He's the plaintiff.

<double post>

Darn forum issues!

If the orange tip indicates the AK47 is a facsimile then The second amendment and article I Sec 25 don't apply anymore than they would apply to a cap gun. Below is the Wisconsin statute concerning facsimile firearms.

941.2965 Restrictions on use of facsimile firearms.
941.2965

941.2965 Restrictions on use of facsimile firearms.
941.2965(1)

(1) In this section, "facsimile firearm" means any replica, toy, starter pistol or other object that bears a reasonable resemblance to or that reasonably can be perceived to be an actual firearm. "Facsimile firearm" does not include any actual firearm.

941.2965(2)

(2) No person may carry or display a facsimile firearm in a manner that could reasonably be expected to alarm, intimidate, threaten or terrify another person. Whoever violates this section is subject to a Class C forfeiture.

941.2965(3)

(3) Subsection (2) does not apply to any of the following:

941.2965(3)(a)

(a) Any peace officer acting in the discharge of his or her official duties. Notwithstanding s. 939.22 (22), this paragraph does not apply to a commission warden.

941.2965(3)(b)

(b) Any person engaged in military activities, sponsored by the state or federal government, acting in the discharge of his or her official duties.

941.2965(3)(c)

(c) Any person who is on his or her own real property, in his or her own home or at his or her own fixed place of business.

941.2965(3)(d)

(d) Any person who is on real property and acting with the consent of the owner of that property.

941.2965 - ANNOT.

History: 1993 a. 191; 1993 a. 491 s. 262; Stats. 1993 s. 941.2965; 2007 a. 27.

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2011 Wisconsin Code
Chapter 941. Crimes against public health and safety.
941.297 Sale or distribution of imitation firearms.
Share | 941.297

941.297 Sale or distribution of imitation firearms.
941.297(1)

(1) In this section, "look-alike firearm" means any imitation of any original firearm that was manufactured, designed and produced after December 31, 1897, including and limited to toy guns, water guns, replica nonguns, and air-soft guns firing nonmetallic projectiles. "Look-alike firearm" does not include any imitation, nonfiring, collector replica of an antique firearm developed prior to 1898, or any traditional beebee, paint-ball or pellet-firing air gun that expels a projectile through the force of air pressure.

941.297(2)

(2) Beginning November 1, 1992, no person may sell or distribute any look-alike firearm. Whoever violates this subsection is subject to a Class A forfeiture.

941.297(3)

(3) This section does not apply to the sale or distribution of a look-alike firearm that complies with the marking or waiver requirements under 15 USC 5001 (b).

941.297 - ANNOT.

History: 1991 a. 155.




§ 5001. Penalties for entering into commerce of imitation firearms

(a) Acts prohibited
It shall be unlawful for any person to manufacture, enter into commerce, ship, transport, or receive any toy, look-alike, or imitation firearm unless such firearm contains, or has affixed to it, a marking approved by the Secretary of Commerce, as provided in subsection (b) of this section.
(b) Distinctive marking or device; exception; waiver; adjustments and changes
(1) Except as provided in paragraph (2) or (3), each toy, look-alike, or imitation firearm shall have as an integral part, permanently affixed, a blaze orange plug inserted in the barrel of such toy, look-alike, or imitation firearm. Such plug shall be recessed no more than 6 millimeters from the muzzle end of the barrel of such firearm.
(2) The Secretary of Commerce may provide for an alternate marking or device for any toy, look-alike, or imitation firearm not capable of being marked as provided in paragraph (1) and may waive the requirement of any such marking or device for any toy, look-alike, or imitation firearm that will only be used in the theatrical, movie or television industry.
(3) The Secretary is authorized to make adjustments and changes in the marking system provided for by this section, after consulting with interested persons.
(c) “Look-alike firearm” defined
For purposes of this section, the term “look-alike firearm” means any imitation of any original firearm which was manufactured, designed, and produced since 1898, including and limited to toy guns, water guns, replica nonguns, and air-soft guns firing nonmetallic projectiles. Such term does not include any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or traditional B–B, paint-ball, or pellet-firing air guns that expel a projectile through the force of air pressure.
(d) Study and report
The Director of the Bureau of Justice Statistics is authorized and directed to conduct a study of the criminal misuse of toy, look-alike and imitation firearms, including studying police reports of such incidences and shall report on such incidences relative to marked and unmarked firearms.
(c)  1 Technical evaluation of marking systems The Director of [2] National Institute of Justice is authorized and directed to conduct a technical evaluation of the marking systems provided for in subsection (b) of this section to determine their effectiveness in police combat situations. The Director shall begin the study within 3 months after November 5, 1988, and such study shall be completed within 9 months after November 5, 1988.
(f) Effective date
This section shall become effective on the date 6 months after November 5, 1988, and shall apply to toy, look-alike, and imitation firearms manufactured or entered into commerce after November 5, 1988.
(g) Preemption of State or local laws or ordinances; exceptions
The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall—
(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or
(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B–B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.

Captain Nemo said:

If the orange tip indicates the AK47 is a facsimile then The second amendment and article I Sec 25 don't apply anymore than they would apply to a cap gun. Below is the Wisconsin statute concerning facsimile firearms.

941.2965 Restrictions on use of facsimile firearms.
941.2965

941.2965 Restrictions on use of facsimile firearms.
941.2965(1)

(1) In this section, "facsimile firearm" means any replica, toy, starter pistol or other object that bears a reasonable resemblance to or that reasonably can be perceived to be an actual firearm. "Facsimile firearm" does not include any actual firearm.

Click to expand...

I highlighted the part that matters.

What is the first part of this story? The way I read this the nut in the park was the one that orginally filed suit and started this thing rolling, giving rise to a court decision that may affect 2nd Amendment rights. To me, the argument that Gura is making is that under the 2nd Amendment, as defined by Heller, the right to bear arms for self defense may not be restricted, but bearing a weapon in a manner that incites terror in ordinary people can be legally prohibited.

Flipper said:

What is the first part of this story? The way I read this the nut in the park was the one that orginally filed suit and started this thing rolling, giving rise to a court decision that may affect 2nd Amendment rights. To me, the argument that Gura is making is that under the 2nd Amendment, as defined by Heller, the right to bear arms for self defense may not be restricted, but bearing a weapon in a manner that incites terror in ordinary people can be legally prohibited.

Click to expand...

Really? So... who's to decide that me wearing a firearm in my holster doesn't incite terror? Do we really have to cater to the lowest common denominator? If so, watch out, you wearing a t-shirt with a slogan or advertisement might get you arrested.

paul@paul-fisher.com said:

Really? So... who's to decide that me wearing a firearm in my holster doesn't incite terror? Do we really have to cater to the lowest common denominator? If so, watch out, you wearing a t-shirt with a slogan or advertisement might get you arrested.

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That's what laws enacted by our elected representatives (and in some cases a "policy" put out by a government agency) and subsequently upheld or overturned by our courts do. See the top of Gura's brief page 28, or Doc page 38.

In Wisconsin open carrying a firearm in the capitol has been declared unacceptable. Flynn declared open carry of a firearm unacceptable in Milwaukee. In California open carrying an empty firearm was acceptable, now the state has declared it unacceptable.

Flipper said:

That's what laws enacted by our elected representatives (and in some cases a "policy" put out by a government agency) and subsequently upheld or overturned by our courts do. See the top of Gura's brief page 28, or Doc page 38.

In Wisconsin open carrying a firearm in the capitol has been declared unacceptable. Flynn declared open carry of a firearm unacceptable in Milwaukee. In California open carrying an empty firearm was acceptable, now the state has declared it unacceptable.

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But in this case, he wasn't charged with a crime because he didn't break a law. There is no law, Federal or TN (or WI for that matter) that says I can't have a orange tipped firearm. I believe Federal law/regulations say that toy guns MUST have orange tips but there is no prohibition about real guns having them. There also is no law that he can't have a firearm in the park. He had a concealed carry permit and the LEO knew it. WI now has a law that states OC is not grounds for a dc charge unless something else is going on.

So... the lawsuit is that the purported Terry stop went too far.

Your CA example was backed up by a state law. The WI Capitol is backed up by a state law (maybe). The Milwaukee thing is not enforceable and MPD will be sorry if they do that.

just for clarification... It was a real AK, not a toy.

from the link:

"Yet even most ardent supporters of the right to bear arms would
pause at the sight of a camouflaged man carrying a 30-round AK-47
across his chest at a nature preserve—especially an AK-47 modified to
resemble a toy."

(bold is mine)

This means it was a real AK that had the tip painted orange to resemble an air-soft "toy".

What the brief supports, is that not all those enjoying 2nd amendment rights behave in such a manner, and they're trying to distinguish the common usage of that right from "unusual" uses, so the rights of all are not restricted to conform with the lowest common denominator.

Let's face it, bad examples hurt everyone, and within his rights or not, this guy's actions were a bad example, so they're trying to "cut him from the herd", is how I interpret their brief. If our 2nd amendment rights hinge on guys walking around in public with AK-47s strapped to their chest, we'll quickly lose that right.

safcrkr said:

just for clarification... It was a real AK, not a toy.

from the link:

"Yet even most ardent supporters of the right to bear arms would
pause at the sight of a camouflaged man carrying a 30-round AK-47
across his chest at a nature preserve—especially an AK-47 modified to
resemble a toy."

(bold is mine)

This means it was a real AK that had the tip painted orange to resemble an air-soft "toy".

What the brief supports, is that not all those enjoying 2nd amendment rights behave in such a manner, and they're trying to distinguish the common usage of that right from "unusual" uses, so the rights of all are not restricted to conform with the lowest common denominator.

Let's face it, bad examples hurt everyone, and within his rights or not, this guy's actions were a bad example, so they're trying to "cut him from the herd", is how I interpret their brief.

Click to expand...

I agree with your contention and that is my problem with it. Who are we to judge what a 'normal' mode of carry is? Do we want to allow the government to start down the slippery slope that orange tipped AK's aren't OK but everything else is? What's next? Assault rifles? They look scary to some people.

My biggest issue is that SAF is saying ANYTHING! If they don't agree with the case, shut up! What are they going to do next, come out against MKEGal because "normal" people don't sit in cars outside coffee shops after midnight? Where is this line? Once we call for (not just accept) restrictions, we are no better than WAVE.

paul@paul-fisher.com said:

I agree with your contention and that is my problem with it. Who are we to judge what a 'normal' mode of carry is? Do we want to allow the government to start down the slippery slope that orange tipped AK's aren't OK but everything else is? What's next? Assault rifles? They look scary to some people.

My biggest issue is that SAF is saying ANYTHING! If they don't agree with the case, shut up! What are they going to do next, come out against MKEGal because "normal" people don't sit in cars outside coffee shops after midnight? Where is this line? Once we call for (not just accept) restrictions, we are no better than WAVE.

Click to expand...

What's "normal" and what's not is what is plainly evident in our daily lives. There's what, 80 million gun owners in the U.S. ? Don't know the exact figures, but I supoose there's 10 million CWLs issued throughout the U.S.? If even a small percentage of those gun owners or licensees walked around in public with AK-47s do you suppose the public would support the right to carry (either OC or CC) if the cities in the U.S. resembled Bahgdad or Beirut? Yes we may have a right to... but should we? If we turn the non-gun owning public against us, we WILL lose. Simple fact. If this guy is potrayed as "normal" or "typical gun nut", we're done... put a fork in it. Reality will overcome any philosophical "it's my right" argument you can make.

safcrkr said:

What's "normal" and what's not is what is plainly evident in our daily lives. There's what, 80 million gun owners in the U.S. ? Don't know the exact figures, but I supoose there's 10 million CWLs issued throughout the U.S.? If even a small percentage of those gun owners or licensees walked around in public with AK-47s do you suppose the public would support the right to carry (either OC or CC) if the cities in the U.S. resembled Bahgdad or Beirut? Yes we may have a right to... but should we? If we turn the non-gun owning public against us, we WILL lose. Simple fact. If this guy is potrayed as "normal" or "typical gun nut", we're done... put a fork in it. Reality will overcome any philosophical "it's my right" argument you can make.

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Wow!

Really? Let me guess, you are one of those that believe the Constitution should be 'interpreted'

All sorts of stuff makes me uncomfortable and I am not working on making it illegal.

If you want it changed change the law or the Constitution. If what he did was illegal, charge him.

I'm aghast that SAF would take such a position.
Really, we should be grateful that we were "only" held at gunpoint, arrested, etc.?
As if it's not a violation unless they shoot us? :cuss:

paul@paul-fisher.com said:

who's to decide that me wearing a firearm in my holster doesn't incite terror?

Click to expand...

^^^ this
I have video showing that, at least in my case & in those situations where the videos were made, my being armed did not incite terror.

you wearing a t-shirt with a slogan or advertisement might get you arrested.

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Or at least, hassled.
Did I tell you about the rent-a-cops at the Milwaukee city courthouse, when I went to sit in on Aaron Ols' gun-return hearing? I was wearing my WCI shirt.

Took off my coat, got through the metal detector
(which of course beeped... it's set to beep for everyone, so they can search you more closely...
when I went for my hearing the male guard insisted on me pulling up my shirt to show my bra underwire!!!),
walked 20 yards away, down a flight of stairs, pushed the elevator button,
& approaching a minute later one of the guards started yelling "ma'am!" "ma'am!"
I ignored it, since I'd already passed security,
but one of the people near me said she was pointing at me, so I turned to look.

"Where are you going?"
Upstairs. [Duh... I'm standing at the elevator.]
"Where are you going?"
[louder] Upstairs.
"Where upstairs?"
Why do you need to know?
"Where are you going?"
At which point I put her on ignore.

That hadn't happened to anyone else that I could see, & the people riding the elevator up with me couldn't see why she was yelling at me.
Think it might have had something to do with my peaceful exercise of my 1A rights in support of the 2A?

Flipper said:

...bearing a weapon in a manner that incites terror in ordinary people can be legally prohibited.

Click to expand...

Thank you.

It's the mall ninjas in our communities that bring this kind of reproach upon the rest of us who carry responsibly and SENSIBLY.

I will cross SAF off my list of organizations to support. Too bad, as I attended their convention this year and did not pick up on any of this kind of attitude.

The SAF has perverted its mission when it starts trying to control citizen's behavior....

[h=3]SAF Mission Statement[/h] The Second Amendment Foundation (SAF) is dedicated to promoting a better understanding about our Constitutional heritage to privately own and possess firearms. To that end, we carry on many educational and legal action programs designed to better inform the public about the gun control debate.

Click to expand...

safcrkr said:

[SAF is] trying to distinguish the common usage of that right from "unusual" uses, so the rights of all are not restricted to conform with the lowest common denominator.
Let's face it, bad examples hurt everyone, and within his rights or not, this guy's actions were a bad example...

Click to expand...

So because I think that snake handling & speaking in tongues is strange (or how about kneeling or bowing),
certain Christian sects shouldn't be allowed to use what they see as a normal form of worship?

[sarcasm]
I mean, really... at church you should sit in your seat, stay still, & keep your mouth shut, except to sing or leave.
What are those other wierdos thinking?!?
And let's not even get into the non-Christians, or people who use languages other than English.
Tolerance can only go so far.
[/sarcasm]

safcrkr said:

What's "normal" and what's not is what is plainly evident in our daily lives.

Click to expand...

MilProGuy said:

It's the mall ninjas in our communities that bring this kind of reproach upon the rest of us who carry responsibly and SENSIBLY.

Click to expand...

You two sound like Jeri's Kidz...
"this isn't nor-mal"
"you shouldn't do that because I say it's wrong"
Or even the cc-only people who insist that OC is wrong because they aren't used to it & don't like it.

I wouldn't do what kwik did, and I agree it's unusual, but he didn't break the law & didn't harm anyone.