15 replies to this topic

[05FLHT]

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?"

[stm]

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.

[Bitter]

stm, on 30 June 2011 - 01:03 PM, said:

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.

[05FLHT]

Bitter, on 30 June 2011 - 04:23 PM, said:

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.

[05FLHT]

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

[bob]

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.

[Davey]

05FLHT, on 30 June 2011 - 09:26 AM, said:

...
"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?

[05FLHT]

Davey, on 01 July 2011 - 07:31 AM, said:

05FLHT, on 30 June 2011 - 09:26 AM, said:

...
"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 citizens’ 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.

[nocaster]

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.

[05FLHT]

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.

[05FLHT]

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

Attached Files

•  Masciandaro-SAF-Cert-Amicus-2011-07-25-1.pdf   125.84K   182 downloads

[mauserme]

Oh my.  There's alot to like in that.

[05FLHT]

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.  

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!

[GarandFan]

Cert denied.

http://www.csmonitor...rights-question

[Tvandermyde]

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

That means Moore, Shepard,  Peruta

[blackhalo]

Tvandermyde, on 29 November 2011 - 07:52 AM, said:

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.