Jump to content


Photo

United States v. Masciandaro (4th Circuit)


This topic has been archived. This means that you cannot reply to this topic.
15 replies to this topic

#1 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 30 June 2011 - 09:26 AM

This is a case where an otherwise law abiding individual was arrested and convicted for possessing a loaded firearm in a National Park (prior to the change in the law from the amendment attached to the Credit Card Act). It is another case of a lower court (4th Circuit court of appeals) failing to address the full scope of the Second Amendment, in light of Heller/McDonald, for law abiding citizens outside of the home.

Petition for Cert.-
http://cloudigylaw.c...on-w-appx-1.pdf

This is VERY good case asking a clear cut question -

"Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?"
NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#2 stm

    Member

  • Supporting Members Team
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 980 posts
  • Joined: 26-April 11

Posted 30 June 2011 - 01:03 PM

Pretty good read. His lawyers make some excellent arguments. However, it wanders a bit when it cites all the circuit and state courts in asking SCOTUS to identify the appropriate standard of review for 2A. I was under the impression that SCOTUS likes narrowly tailored arguments about the case at hand. But what do I know? IANAL.

yea everyone makes fun of the redneck till the zombies show up. . .


#3 Bitter

    Member

  • Members
  • PipPipPipPip
  • 242 posts
  • Joined: 02-December 08

Posted 30 June 2011 - 04:23 PM

Pretty good read. His lawyers make some excellent arguments. However, it wanders a bit when it cites all the circuit and state courts in asking SCOTUS to identify the appropriate standard of review for 2A. I was under the impression that SCOTUS likes narrowly tailored arguments about the case at hand. But what do I know? IANAL.


Yes, scotus prefers to rule on narrow grounds, but you have to remember that this is a petition for cert, not the brief itself. The petition is just trying to get scotus to take up the issue by demonstrating that the supervisory authority of the Court should be invoked. It is not trying to make a full argument for the purpose of ruling on the issue.

It is a bit surprising seeing something like this come out of an overworked public defender. My hats off to them.
_________________

Nothing contained in this post is to be construed as legal advice. Any stated opinions of law are my own. Contact a lawyer for an analysis of any legal rights or obligations you might have.

#4 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 30 June 2011 - 04:51 PM

It is a bit surprising seeing something like this come out of an overworked public defender. My hats off to them.


Attorney Matt Levy is working pro bono along with the public defender on this case.

This is actually a really good case for the court to hear. We have a person, who was otherwise law abiding, being arrested and convicted post Heller/McDonald for merely possessing an operable (loaded) firearm outside of the home. The issue is pretty clear cut...does the right extend outside of the home (obvious Yes).

I especially like the call outs of the lower courts for either skirting the issue entirely or trying to use the explicitly forbade 'rational basis.'

With Williams and now Masciandaro, the chances of a ruling in 2012 just greatly increased.
NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#5 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 30 June 2011 - 06:56 PM

For those with more interest in this Cert. petition, there is some really good discussion on both MDS and Calguns.

http://www.mdshooter...663#post1176663

http://calguns.net/c...ad.php?t=450491
NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#6 bob

    Member

  • Members
  • 5,102 posts
  • Joined: 14-November 05

Posted 01 July 2011 - 05:55 AM

This appears to be both a right to bear arms outside the home case coupled with a sensitive areas case.

It would be a pity if we won on the right to bear arms in public and lost on whether a park is a sensitive place. If a park can be considered a sensitive place, just about anywhere can.
bob

Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum.

The opinions expressed by this poster do not reflect the official stance of Illinois Carry. Apparently there was some confusion on the part of at least one person that it does, and I want to make things clear that my opinion is my own and that whatever the official stance of IC is or is not at present, it may or may not reflect my own opinion.

http://ilbob.blogspot.com/

#7 Davey

    Member

  • Members
  • 2,274 posts
  • Joined: 02-November 10

Posted 01 July 2011 - 07:31 AM

...
"Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?"


Cut the foreplay and head straight for the goods.


Out of curiosity of the two questions why are guns referred to simply as "firearms" in the first question and then as "loaded weapons" in the second?

#8 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 01 July 2011 - 08:40 AM


...
"Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?"


Cut the foreplay and head straight for the goods.


Out of curiosity of the two questions why are guns referred to simply as "firearms" in the first question and then as "loaded weapons" in the second?


"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 citizensí possession and carrying of loaded weapons in motor vehicles while on National Park Service land?"

The second question is what the petitioner (Masciandaro) was convicted on and is asking the court to overturn.
NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#9 nocaster

    Member

  • Members
  • PipPipPipPipPipPip
  • 327 posts
  • Joined: 11-February 11

Posted 02 July 2011 - 12:11 PM

For those not interested in reading the whole brief, the summary is as follows:
The defendant was convicted of violating a federal statute prohibiting the possession of a loaded firearm in a national park. The defendant is a some kind of traveling naturist or something, traveling to various shows and educating people about some nature stuff. ( I read the case yesterday, and am forgetting exactly what the guy did as some sort of traveling act.) In any case, he had valuables in the car, and was sleeping in it in a National Park parking lot. He had a loaded gun in the trunk of his car in a duffle bag.




The brief is an interesting read. I hope it gets granted cert. However, I don't think the factual scenario is as perfect/clean as the brief argues. If the gun, albeit loaded, was in the trunk of the car, it's not clear how it was being "carried for self defense." If under attack (while sleeping in the parking lot), the guy would have to run out of the car, pop the trunk, and then open the duffle bag in order to use the gun. I could see the supreme court skirting the questions presented by saying that the issues are not squarely before teh court.

#10 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 02 July 2011 - 12:38 PM

The gun was in a bag inside of the cab of his truck. When the ranger asked if he had any weapons Masciandaro told him about the gun.
NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#11 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 26 July 2011 - 06:26 AM

The SAF has filed an Amicus Brief in Masciandaro authored by none other than the man himself, Alan Gura.

Attached Files


NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#12 mauserme

    Eliminating the element of surprise one bill at a time.

  • Moderator
  • 8,839 posts
  • Joined: 20-February 09

Posted 26 July 2011 - 06:37 PM

Oh my. There's alot to like in that.
.
.
Link to ILGA House Audio/Video..........Link to ILGA Senate Audio/Video ..........Link to Livestream Blueroom Events Page

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. - C.S. Lewis

#13 05FLHT

    TCB.

  • Members
  • 1,196 posts
  • Joined: 29-February 08

Posted 10 August 2011 - 05:32 AM

Response requested 8-9-11. Response due 9-8-11.

http://www.supremeco...es/10-11212.htm

With a response requested in Williams and now Masciandaro, it looks like somebody has taken interest. :lol:

With the inevitable appeals in Moore, it looks like SCOTUS will be able to take their pick of the case(s). 2012 is going to be good year!
NRA Certified Pistol Instructor
IL Concealed Carry Firearm Instructor

#14 GarandFan

    Member

  • Members
  • 11,711 posts
  • Joined: 06-February 07

Posted 28 November 2011 - 12:12 PM

Cert denied.

http://www.csmonitor...rights-question
"It takes all the running you can do just to keep in the same place."
Lewis Carroll, 1872

#15 Tvandermyde

    Member

  • Members
  • 5,663 posts
  • Joined: 29-March 09

Posted 29 November 2011 - 07:52 AM

It looks to me that the court wants a clean case.

That means Moore, Shepard, Peruta
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#16 blackhalo

    Member

  • Members
  • Pip
  • 79 posts
  • Joined: 11-January 11

Posted 29 November 2011 - 07:56 AM

It looks to me that the court wants a clean case.

That means Moore, Shepard, Peruta


Amen. Now if only we could get a ruling on Moore or Shepard... The wheels of justice turn slowly.

:thumbsup: