Supreme Court Declines To Hear Masciandaro Case

BY Herschel Smith
3 years ago

From CSM:

The US Supreme Court declined Monday to take up a potentially important gun rights case examining whether a federal regulation banning loaded firearms from vehicles in a government park violated the constitutional right to keep and bear arms.

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.

[ ... ]

The dismissed appeal, Masciandaro v. US (10-11212), had asked the court to examine whether Americans have a right to carry loaded weapons in public places for self defense.

How the justices answered that question would have established guideposts for future gun regulations at the local, state, and national levels of government.

In the 2008 decision, District of Columbia v. Heller, the court said that gun rights are not unlimited. The court said there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The details of the case can be found here, here and here.  Fundamantally at issue is whether the Second Amendment carries the right to possess a weapon outside the home, and the lower courts are almost begging for the Supreme Court to answer this question in the wake of the half-hearted Heller ruling.

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011).

The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home.

Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

So in spite of the urgent need to sort out the lower court chaos concerning bearing arms, the Supreme Court declined to hear Sean Masciandaro’s case.

Supreme Court fail … big time.  This is just what Lanny Breuer asked them to do in his brief, and I’m sure that Dennis Henigan is popping the cork somewhere.



  • Mr. Mark

    I know this going way beyond the specific subject of the post I am responding to, but in keeping with my habit of coloring outside the lines….

    1. That we trust a group of judges (promoted lawyers) to interpret the constitution for us in an objective, impartial, and perfect way is foolishness on the part of our society.

    2. There is no body of law that can be written so specifically and clearly as to withstand intentional, biased misinterpretation by people with an agenda. So, we cannot rely entirely upon interpretation of law by a court to preserve the freedoms of the individual.

    3. Because of 1 and 2, we can only place confidence in societal values that place high priority on individual rights and that views the state as a servant of the public and not the other way around.

    Right now, it seems to me that a large section of our nation’s population has no conception of individualism and views government as a supreme entity morally superior to the individual. They believe that the accouterments of high office are sufficient to make government policy infallible (if a person is an important official, then because they have an important office, they must be right because no incompetent or malicious person would ever qualify for such an office, therefore everything they decree must be right).

    Either:

    a. There is a shift in societal attitudes back toward individualism and limited government

    Or, b. There are at least two philosophical groups of Americans who would be better off just going their separate ways: Individualists and statists.

  • http://www.captainsjournal.com/ Herschel Smith

    You make very good points Mark. I cannot really disagree with any of them.

  • Pingback: The Captain's Journal » Ruling Against Carrying A Gun Outside The Home Appealed To Supreme Court


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This article is filed under the category(s) Firearms,Guns,Second Amendment and was published November 29th, 2011 by Herschel Smith.

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