BY Herschel Smith

8 years, 11 months ago

In No Right To Carry Concealed Handgun and Heller Versus D.C. Before the Circuit Court of Appeals (Assault Weapons Ban), we discussed the case of Sean Masciandaro. While traveling, Mr. Masciandaro fell asleep in his automobile at or near Daingerfield Island, an area of NPS land near Alexandria, Virginia. He had a handgun, and instead of separating the ammunition in proximity from the weapon, he had the weapon loaded. He was convicted of a crime, and has appealed the case all the way to the Supreme Court of the U.S.

Since Mr. Masciandaro’s conviction, Congress has passed a law prohibiting executive regulation of enforcement of weapons bans on National Park land (including the specific infraction with which Mr. Masciandaro was convicted). We will revisit this fact later in our analysis. Mr. Masciandaro’s attorneys submitted their Petition for Writ of Certiorari, and until recently were awaiting the response of the Solicitor General. Donald B. Verrilli and Lanny A. Breuer finally submitted their Brief for the United States in Opposition to Sean Masciandaro.

Analysis of Core Argument[s] in Brief for the U.S.

The brief spends some unfortunate pages rehearsing what we already know about this case, providing detail that has been provided by they attorneys for Mr. Masciandaro. By the time that the argument begins and goes a single paragraph, it is reduced to the following three unrelated points: (1) intermediate scrutiny is appropriate (and thus the government is not required to prove whether the core question implicates Second Amendment considerations), (2) the level of danger with a loaded weapon is high and warrants government controls in the interest of public safety, and (3) the case is irrelevant due to its having been made void by an act of Congress.

On page 8 the brief begins the argument that the subject regulation implies specificity inasmuch as it only applies to loaded firearms in National Parks and inside a vehicle. The argument to specificity is important and we will revisit its implications. On page 10 the brief argues that whether the core right identified in Heller extends outside the home as well is an “abstract question,” and adds that the case of Masciandaro “presents no occasion to decide that issue.” On page 12 the brief extends the argument that whether the Second Amendment extends outside the home is an “abstract question.”

On page 13 the brief begins to walk this argument back when it states:

Petitioner suggests (Pet. 21) that lower courts “will continue to limit the Second Amendment right to self-defense in the home” until this Court affirmatively extends its scope. Even if that were so, it would not preclude this Court from addressing the broad question, after full consideration by the lower courts, in a case (unlike this one) where its resolution would be outcome-determinative.

So rather than an “abstract question” effecting the broad application of firearms rights outside the home, in just a few pages the Masciandaro case has become one that cannot possibly be “outcome-determinative” because any decision by the U.S. Supreme Court would effect only regulations in National Parks (or more specifically, the case of Sean Masciandaro in a National Park convicted of this specific crime at this specific time in history).

A new section begins the argument (on page 14) that the question of bearing firearms outside the home is not “cleanly presented” in the Masciandaro case. Brief continues:

… when this Court in Heller pointed out that “the right secured by the Second Amendment is not unlimited,” 554 U.S. at 626, it identified several “presumptively lawful” regulations of that right, id. at 627 & n.26, including “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” id. at 626. Although the court of appeals found it unnecessary to decide the issue, national parks — heavily traveled, government-controlled areas where “large numbers of people, including children, congregate for recreation,” Pet. App. 15a — can readily be described as “sensitive places” within the meaning of Heller. At a minimum, they implicate specific public safety interests, and their “circumstances justify reasonable measures to secure public safety.”

In a 16 page brief, Verrilli and Breuer have stumbled into a serious logical blunder. The brief argues that the Masciandaro case doesn’t implicate Second Amendment rights on a large scale, since this case involves only National Park land and any decision would effect only this specific regulation. Recall from above that the initial argument straight out of the gate had to do with the specificity of this case and any decision thereto.

But the brief apparently feels that the Second Amendment implications are massive, arguing extensively that this case involves “sensitive” areas where large numbers of people are congregated. On the one hand, this case is specific. On the other hand, its implications are broad enough that the court should decide it later because public safety is at stake and the implications for any decision are far too broad. This is fundamentally contradictory, as the case doesn’t fit the category for broad constitutional implications because of its specificity, but does so to such a degree that any reversal by the Supreme Court of Mr. Masciandaro’s conviction would imply carry rights in areas that the government would seek to prohibit.

This problem can be seen again in the way in which the brief argues for non-consideration by the Supreme Court. On page 7 this case is noted as having “little importance” since the law has been reversed. So it has been categorized as not implicating second amendment rights as a justification for dismissal. Then on page 12, precedent is cited for rejecting cases with “underlying issues with such broad ramifications.” The brief’s core argument is self-referentially incoherent.

Further Analysis

It is appropriate at this point to make some additional remarks about the brief that don’t go entirely to the core argument[s]. The brief is so poorly written that it is difficult to follow the flow of thought (if there is any). It seems to revert at times to the leaky bucket approach to rhetoric. First there is the judicial “now you see it, now you don’t” trick of intermediate scrutiny, and thus whether Second Amendment rights are implicated is irrelevant – but even if Second Amendment rights are implicated, the government has an interest in public safety that bears on this question – but even if we don’t, the law has been overturned anyway – and even if all of that isn’t true, the Supreme Court should wait to decide cases with such broad constitutional ramifications as this one – but any decision by the Supreme Court wouldn’t effect larger questions since the regulation only effected behavior on National Park Service land, so the Supreme Court should reject it from consideration since it is so specific. And on and on, back and forth from page to page it goes, dizzying the reader like a ping pong match.

The brief is such a completely disconnected, randomized flow of consciousness paper that it leaves one without a sense of having been persuaded of much of anything except that it is a pleasing experience to stop reading it. It places heavy weight on the notion that a loaded firearm is “surely more dangerous than an unloaded one.” But this assertion is stated as axiomatic and lacks demonstration or evidence. For most concealed handgun permit holders, trigger and muzzle discipline approaches religious fervor. To be sure, the state has an interest in knowing that weapons owners (who have a permit to carry) know how to make their weapon function with no danger to anyone except an assailant. Hence, a range test and firearms safety training (e.g., knowing where your target is and also what is behind your target) is part of the process to get the permit to carry.

But it is a juvenile and illogical leap simply to assert that a loaded firearms in the hands of trained, permitted individuals, is “surely more dangerous” than an unloaded one (as if weapons randomly discharge). This is analogous to the argument in Heller 2 where D.C. continues with the ban of so-called “assault weapons.” An analysis of mass shootings in the U.S. demonstrates rather conclusively that assault weapons do not deserve the approbation heaped upon them. Similarly, in spite of the prediction of bloodshed in the National Parks by the Brady Campaign’s Dennis Henigan, based on a FOIA request I filed concerning violent crimes in National Parks after reversing the ban on loaded weapons, there is essentially no change in 2010, and firearms related incident continue to remain statistically insignificant. Dennis Henigan was wrong. But then so are many adjudications concerning firearms because they rely on arguments made mainstream by the likes of Dennis Henigan.

After arguing for a compelling government interest in public safety because of the threat of violence from loaded handguns, the brief all but stipulates to the contrary proposition by dumping the basis for their argument and asserting that a Supreme Court decision wouldn’t matter because the law had changed. Note well. The brief doesn’t argue for the Supreme Court to take up the case to justify their assertion that a loaded handgun is surely more dangerous than an unloaded one and hence the compelling interest in public safety makes such regulations just and right even if the court exonerates Seam Masciandaro (a position which they could have taken). The brief argues that the Supreme Court should not take the case because there may be other cases in the future that also bear on the question.

There are several other things that can be gleaned from the brief. First, it is clear that neither the appeals court judges nor the authors of the brief have any significant personal experience with firearms. No one with personal experience would make such manifestly absurd, factually incorrect statements about firearms. Second, it becomes clearer with this brief what the current administration thinks about Second Amendment rights (they are not friendly to the Second Amendment). Third, the brief eventually seems to devolve into a whiny, nagging missive on the fact that the Supreme Court shouldn’t take the case of Sean Masciandaro because we, the administration, really don’t want them to. And if that’s not enough, we really … really … really don’t want them to.

The case of Sean Masciandaro presents a perfect opportunity to establish once and for all that U.S. citizens have a right to self defense outside their home. The home is a man’s castle, and castle doctrine has now become law in most states as it should be. Thus the burden of proof is placed squarely where it should be, i.e., on the prosecution, and the burden is heavy and the bar high for cases of self defense inside the home. Rightly so. But while the burden may not be as high outside the home, that doesn’t mean that a citizen relinquishes the right to self defense when he leaves the confines of his domicile.

Life in the United States of America generally requires interaction with the balance of society, and the warp and woof of America involves rich and robust ideas on firearms ownership and the right to self defense. It did at the founding of our country and that continues to this day. There is no evidence that the majority of Americans feel that their rights cease and desist because there are other people around them. In fact, the presence of others is precisely the circumstances under which self defense would be exercised. Restriction of the right in circumstances where it is most likely to be required to be exercised doesn’t comport with the spirit of the constitutional guarantee. Rather, it mocks it. Neither, for that matter, does requiring Sean Masciandaro to separate his ammunition from his weapon, rendering it completely useless as a means of self defense, comport with the intent of the founders or the rights granted to us by God. Judges and attorneys who have experience with firearms or even who care just a little about constitutional guarantees would know these things.

UPDATE: Reddit/r/guns link.