U.S. v. Masciandaro

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Supreme Court Says No To Sean Masciandaro’s Appeal

November 29, 2011 by 10 Comments

In their orders released today, the Supreme Court denied Sean Masciandaro’s writ of certiorari without any comment. He had appealed to the Supreme Court from the 4th Circuit Court of Appeals which had punted the case.

Mr. Masciandaro was originally convicted of possessing a firearm on National Park Service property when he had stopped to take a nap before continuing his drive home. At the time of his arrest this was illegal but the law changed before he went to trial. Nonetheless, under existing precedent, this was valid even though it was no longer illegal.

As the Christian Science Monitor noted about this denial of certiorari:

Lawyers for a Virginia man had asked the justices to examine a question left largely unresolved in the high court’s two prior landmark rulings identifying the scope and substance of Second Amendment protections. The question is: Does the Second Amendment guarantee a right to bear arms in public for personal protection?

The court dismissed the case in a one-line order without comment. The action leaves lower court rulings intact and postpones the prospect of high court clarification on a key gun rights issue.

On one hand, I am sorry that the Supreme Court did not take this opportunity to clarify their rulings in Heller and McDonald. On the other hand, this opens the door for the Supreme Court to consider some of the cleaner cases working their way through the lowers courts.

By cleaner I mean ones that do not involve a criminal conviction but rather deal with the denial of permits or state laws that deal with carry. Some of these better cases include Woollard v. Sheridan in Maryland, Bateman v. Perdue in North Carolina, and  Kachalsky v. Cacace in New York. These three, I should note, are all Second Amendment Foundation cases with Alan Gura as the lead attorney.

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Supreme Court Opens October Term

October 3, 2011 by

The U.S. Supreme Court opened its October Term today. While it will have contentious cases dealing with ObamaCare, gay marriage, and Arizona’s immigration on the docket, only one – at best – Second Amendment case might be heard this year.

In their Orders released this morning, the Supreme Court denied certiorari for Williams v. Maryland. This was the case appealed from the Maryland Court of Appeals involving Charles Williams who had legally purchased a pistol in that state and who was arrested while transporting the pistol from his girlfriend’s home to his own. He was sentenced to a year in prison for unlawful transportation of a firearm without a permit.

The Maryland Court of Appeals opinion said, in essence, that there was no right to the Second Amendment outside the home. The decision included gems such as this:

it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.

And this:

We shall hold that Section 4-203(a)(1)(i) of the Criminal Law Article, which prohibits wearing, carrying, or transporting a handgun, without a permit and outside of one’s home, is outside of the scope of the Second Amendment.

With Williams gone, this leave Masciandaro v. United States still open. It was docketed in June of this year on appeal from the 4th Circuit Court of Appeals. The Solicitor General’s Office was granted an extension of time to file a response to Sean Masciandaro’s petition until October 11th.

The Masciandaro case involves the arrest of Sean Masciandaro for possession of a firearm on National Park Service property. He had been driving home, felt himself falling asleep at the wheel, and pulled over to catch a little rest. Unfortunately, it was on Park Service property and he was arrested by U.S. Park Police after being informed of it by Mr. Masciandaro himself. Congressional action changed the law after his arrest but before his trial.

The Second Amendment Foundation has filed an amicus brief in this case authored by Alan Gura.

We will have to wait to see whether the Supreme Court grants certiorari in this case or not. In the meantime, the Wall Street Journal has a good video summation of what to expect in this term.

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WaPo Notices Second Amendment Cases

August 15, 2011 by

Robert Barnes, writing in the Washington Post, recognizes that there are a number of Second Amendment cases working their way through the lower courts including two that have been appealed to the Supreme Court. Unfortunately he buys the Brady Campaign’s argument that Second Amendment cases have been continually losing in the lower courts since the Heller and McDonald decisions.

A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.

They’ve been on a losing streak in the lower courts.

Barnes makes reference to the so-called report put out by the Brady Center in July titled “Hollow Victory?” In it, the Brady Center argues that the lower courts have held that “the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence.”

Both Barnes and the Brady Center ignore the 7th Circuit’s decision in Ezell v. City of Chicago which was an unequivocal win for the Second Amendment and which may be the tool needed to get some sort of carry law passed in Illinois.

That said, the article does do a decent job of exploring two cases that might be granted certiorari by the Supreme Court. The cases are a Maryland case challenging a conviction for carrying or transporting with a permit and a Virginia case involving possession of a firearm in a National Park.

The Maryland case – Williams v. Maryland – is brought by Charles Williams who is contesting his 2008 conviction for violating Maryland’s law against wearing, carrying, or transporting a firearm in public without a permit. He was traveling from his girlfriend’s house to his own with a legally purchased gun. However, he does acknowledge that he hadn’t applied for a permit. He is being represented by attorney Stephen Halbrook who contends that the Maryland law is so restrictive that “ordinary people” can’t get the permit. This, he says, clearly violates the Supreme Court’s decisions in Heller and McDonald. This case comes on appeal from the Maryland Court of Appeals which is that state’s highest court.

Meanwhile, in Virginia, Sean Masciandaro was convicted and fined for having a loaded firearm in the trunk of his car on National Park Service property. While this has not been a crime since 2010, it was still prohibited when Mr. Masciandaro pulled off the George Washington Parkway to take a nap rather than fall asleep at the wheel of his car. Unfortunately, the GW Parkway runs through Theodore Roosevelt Island N.P. Moreover, when woken from his nap by park police because he was illegally parked, he answered honestly when asked if he had any more weapons than a knife that was in open view.

Masciandaro appealed his conviction to the 4th Circuit Court of Appeals where it was upheld. He is now appealing to the Supreme Court. According to Supreme Court case filings, he filed an in forma pauperis petition and has been assigned a Federal Public Defender in the case. The Second Amendment Foundation has filed an amicus brief supporting Mr. Masciandaro that was written by Alan Gura.

The article concludes with a brief discussion of the conflicting views about the right to carry for self-defense outside the home.

While the Brady Center trumpets Scalia’s finding that there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” the Second Amendment Foundation takes that as confirmation that “there is a right to carry at least some weapons, in some manner, for some purpose.”

The latter argument is in a brief supporting Masciandaro’s appeal written by Alan Gura, who argued the Heller case. He said the case provides a perfect chance to “clarify” for recalcitrant lower courts that the Second Amendment “applies beyond the threshold of one’s home.”

But if neither Williams nor Masciandaro strikes the court as the right opportunity for the next round of Second Amendment jurisprudence, Gura assures that there are more cases on the way.

Mr. Gura along with the Second Amendment Foundation has done a good job in making sure that many more (good) cases are on the way! And to be fair, the NRA has done its part as well.

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