Petition for Certiorari to USSC Filed in US v MASCIANDARO

[Bubbles]

http://cloudigylaw.com/this-week-at-the-supreme-court-cloudigy-law/
Today we asked the Supreme Court to consider a case we argued before the Fourth Circuit in December. See United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011). It involves the Second Amendment right to keep and bear arms in self-defense and raises significant issues regarding the scope of that right. We requested that the Court consider whether: 1) the right to possess and carry a firearm for self-defense extends outside the home, and 2) it is constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land. This includes some major commuter roads like the George Washington Memorial Parkway. In this case, Mr. Masciandaro (a law-abiding citizen) was convicted under a regulation that makes it a crime to possess or carry a loaded weapon in a motor vehicle that happens to be located on land owned or managed by the National Park Service. The regulation does not contain a self-defense exception to this prohibition, and the issue is whether it is so broad that it violates the Second Amendment rights of Mr. Masciandaro and other law-abiding citizens.

The Fourth Circuit's opinion is at:
http://pacer.ca4.uscourts.gov/opinion.pdf/094839.P.pdf

The Petition for Certiorari is at:
http://cloudigylaw.com/wp-content/uploads/2011-Masciandaro-cert-petition-w-appx-1.pdf

 

[cbrgator]

I sincerely hope that if the Supreme Court grants cert. to Masciandaro, that his attorneys are up to the challenge. The legal issues in this case are not the specialty of this Cloudigy law firm. Looks like the lead on this case is the federal public defender's office.

I'd feel much more comfortable if someone like Alan Gura or Paul Clement were arguing the case.

 

[Al Norris]

This is the second case to petition for certiorari. The first, Williams v. Maryland is a similar "criminal" case from the MD State Court. That case is being litigated by Stephan Halbrook.

In each case, the petitioners are criminal only by operation of laws that make it criminal to carry for self defense. Williams would be a good case for those who live in States that have overly broad and restrictive permitting procedures. Masciandaro is a good case against any law that overly restricts the right to self defense.

To get a "flavor" of how Masciandaro will be argued, one only has to look at the TOC of the petition:

Statement of the Case

A. Mr. Masciandaro Was Arrested for Having a Loaded Weapon in His Car While on NPS Land
B. The Magistrate Judge Upheld the NPS Loaded Weapons Ban and Convicted Mr. Masciandaro
C. The District Court Analyzed the NPS Loaded Weapons Ban Under Three Constitutional Tests and Upheld the Conviction
D. The Court of Appeals Avoided the Constitutional Question and Applied an Intermediate Scrutiny Hybrid Analysis to Uphold the Conviction​

Reasons for Granting the Petition

I. This Case Is the Right Vehicle to Clarify the Scope of the Second Amendment

A. This Case Cleanly Presents the Question of Whether a Second Amendment Right to Self-Defense Exists Outside the Home
B. The Decision Below Was Incorrect Because It Failed to Recognize a Constitutional Right Outside the Home and Applied a Balancing Test to Uphold a Total Weapons Ban in a Car
C. This Case Is Analogous to Heller and Squarely Presents the Questions​

II. Courts Will Not Recognize a Second Amendment Right to Self-Defense Outside One’s Home Until This Court Explicitly Tells Them That Right Exists

A. Lower Courts Are Concluding That the Second Amendment Right to Have a Firearm for Self-Defense Does Not Extend Outside the Home or Are Avoiding Taking a Position on the Question
B. This Court’s Guidance Is Needed Now, Before the Lower Courts Foreclose Any Constitutional Protection of the Self-Defense Right Outside the Home​

III. Federal and State Appellate Courts Are Applying Invalid Tests to Uphold All Weapons Regulations That Impact Activities Outside the Home, Contrary to Heller’s Direction

A. Masciandaro and Other Federal Decisions Employ Balancing Tests Like the Test Proposed by the Heller Dissent
B. State Appellate Courts Have Applied a Rational Basis Test to Uphold Weapons Regulations
C. Some Courts Have Used the “Presumptively Lawful” Measures Identified in Heller to Avoid Any Meaningful Analysis of a Weapon Regulation Under Any Standard of Review
D. Other Courts Have Attempted to Apply a Historical Analysis to Determine Whether Certain Weapons Regulations Pass Constitutional Muster.​

Matt Levy has specifically shown that the lower courts have treated each and every case as if it has been litigated as a criminal case. Thus tending to box in the right as something that is not desirable. That is something the Heller Court was very careful to tell the lower courts they could not do.

A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. Heller, 554 U.S. at 634-35​

That is something that Mr. Halbrook did not do in Williams.

 

[Bubbles]

Cert granted!
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm

 

[garyh9900]

Cert granted!
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm

I don't see where Cert has been granted. I check the SCOTUS blog and news sources, nothing found...

 

[Birch Knoll]

Kewl. We are living in interesting times.

 

[garyh9900]

Cert granted!
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm

Unless you have some inside information, I'm going to have to say this is wishful thinking. According to the SCOTUSblog.com "The Supreme Court on Tuesday released several routine orders in pending cases following Tuesday’s pre-holiday Conference. If the Justices agreed during that session to grant any new cases, those orders will be released next Monday at 10 a.m.". So I'd say only the Justices and their clerks know the outcome of the conference at this point. But I am optimistic that next Monday at 10:00am Masciandaro will be granted Cert.

 

[Bubbles]

Doh! Jumped the gun, the Conference is tomorrow 11/22. I misunderstood.

 

[garyh9900]

The conference was today(today is 11/22), but the results of that won't be known until next Monday.

 

[garyh9900]

Certiorari was denied today by the Supreme Court.