Masciandaro v. United States

It looks like the SG is soft pedaling the issue. No conflicts between circuits; the lower courts recognized the 2A applied; nothing to really get heated up about. Not bad strategy.
 
Something about the SG's response has been bugging me. Follow my thought and tell me if I'm wrong, please.

First, let's take a look at the way the SG has phrased the question being asked:
Whether 36 C.F.R. 2.4(b), which prohibits “[c]arrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation” on National Park Service land, violates the Second Amendment as applied in this case.
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Now look at what the actual cert petition asks:
  • Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?
  • If there is a Second Amendment right to possess and carry a firearm for self-defense outside the home, is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land?
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Those are 2 distinct and different questions.

The SG has (almost) completely avoided the possession outside the home question, which is central to the cert petition itself. By moving the focus to the regulation that was violated, a regulation no longer at issue, the SG hopes to avoid the Court taking up the "outside the home" issue.

In that respect, the issue then becomes much simpler. It was a lawful regulation at the time of conviction. [pay no attention to the man behind the curtain, waving that fundamental rights flag] Preserving the lower courts interpretation of US v. Hark (1944) and its decision.

I don't believe Hark can stand as valid precedent, when it conflicts with a fundamental right that existed before the court identified it (See McDonald, 561 U.S. at ___ (slip op., Thomas, J. Concurrence at 15, quoting Heller, 554 U. S., at ___ (slip op., at 19) (“t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right”))). [emphasis in the original]

If Hark fails, so does the conviction.

Which then should open up the question of whether the core right to self defense, exists outside the home. We believe that the right of self defense is inherent in all places, at all times, wherever and whenever such protection is not directly afforded by the government.

In those places and times where the government can not or will not protect the people, then the government can not have any rational reason to strip the individual of this seminal right.

This is not an absolutist view of the right. It merely builds upon the foundation laid by Heller.
 
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That quote from the SG's brief tells me they are conceding the 2A applies outside the home since that question has to be answered in the affirmative before addressing the constitutionality of the regulation viz a viz the 2A.
 
By not responding and having the case die they avoid a ruling they do not like, with its applicability to other cases.

It drags things out, and costs money to find another complainant and file another case.

Remember, the status quo continues until a case succeeds.

When you cannot win, delay.
 
After reading the Response, I am even more convinced that this is a good vehicle to address the questions of the 2A's applicability outside the home and, perhaps, the level of scrutiny. I agree with the response that the law, as applied, is sufficiently narrow that the Court can address the issue with some certainty that the law of unintended consequences won't run amok. On the other hand, it would have broader implications and allow further development of the law by the lower courts.
 
After listening to a couple of the oral arguments in front of scotus on a few other cases I am wondering if two thingss came into play.

1) Scalia and a few others seem to be on a "Why can't the legislature handle this" kick.

2) Why bother with a law that has already been repealed?

Lets remember Wollard is the ground up SAF case.
 
Post Script

It is interesting to note that while Stephen Halbrook lost his chance to argue Williams before the Supreme Court, he has written an article on Masciandaro that fairly criticizes the the 4th Circuit for its failure to adhere to Constitutional text (and by inference, the Supreme Court for not granting cert).

Published in the Wake Forest Law Review for December: No Right to “Bear Arms”? A Critical Analysis of United States v. Masciandaro

A very good read, indeed!
 
Is this case now concluded for Mr Masciandaro? I did a couple of searches and could find no information relating to the sentencing or the decision being vacated now that the Coburn amendment changes the actions or Mr Masciandaro as no longer being against the law. Would it be up to the governor of Virginia to issue a pardon?

Brian
 
Yes. It is concluded.

Mr. Masciandaro was convicted (misdemeanor, IIRC) at district court. All appeals are now exhausted. There is a fine he has to pay.
 
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