Analysis Of Brief For The U.S. In Opposition to Sean Masciandaro

BY Herschel Smith
12 years, 7 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.

Trackbacks & Pingbacks


  1. On October 26, 2011 at 11:02 am, Herschel Smith said:

    A link is provided at reddit/r/guns to this article:

    There are already some great and informed comments. One point. That this occurred on federal land is a point I consider to be irrelevant. The brief made hay of that fact and pointed to laws that give Congress the right to control that land.

    So what? Congress can pass a great many laws on a great many things (and does so, more often than they should). They don’t have the right under any condition to pass laws that violate constitutional guarantees. To say that Congress passed a law and this is federal land so this must be okay is “begging the question.” The issue is, “Is the law constitutional?”

  2. On October 27, 2011 at 9:34 am, Glen Tschirgi said:

    Many thanks to Herschel for doggedly pursuing this. Like duct tape, there seems to be nothing that he can’t do.

    I do not fundamentally disagree with Herschel’s outlook on 2nd amendment rights and the conclusions, but I have read the solicitor general’s brief and see it somewhat differently (no doubt warped by my years as a practicing attorney).

    Perhaps I have become numbed to poor legal writing and convoluted reasoning with all of the legal memoranda I have consumed over the last 20 years, but I was able to follow the flow of the govt’s argument fairly well.

    As I understand it, the govt is taking a pretty typical position for legal briefs which may tell you something about our legal system. That position can be contradictory at times because a party to a case often argues both sides (and is responding to arguments the other side is making), by saying something to the effect of, “The Defendant should not be allowed to violate the terms of the contract, but even if the Defendant somehow is entitled to violate those terms, the Defendant is not entitled to take the actions he took or get the damages he seeks.”

    So when I read the brief, it sounds to me (and I am writing this without having read the Heller decision or the petitioner’s brief) that the govt’s basic argument is that the Supremes should not take this case for a host of different reasons. This, again, is pretty typical of appellate briefs (which I have had the misfortune to write on three or four occasions). You throw just about everything you can into the argument because you will be strictly limited at oral argument to only what is in the brief– too late for that clever argument you discovered the night before! Who knows what Judges will find compelling?

    So the government seems to be throwing out the following arguments: (1) the underlying conviction was valid because the law says that the repeal of a statute after conviction under that statute will not invalidate the conviction absent specific directive in the repealing law, so the lower courts were correct in affirming his conviction vis a vis the statute itself and this is important because the lack of relevance would tend to make the appeal moot; (2) the Supremes should not decide this because the lower courts all said they were assuming that the 2d Amendment applied and used the intermediate scrutiny standard to reject the claim that the statute violated the 2nd Amendment, and the Supremes should respect that—- here is where i think the govt has a weakness as it appears that Petitioner is claiming that the lower courts wrongly applied the intermediate scrutiny vs. the 2d Amendment and the SCt should take a fresh look at whether the lower courts are really, correctly applying that standard; (3) the SCt shouldn’t review this case because the statute in question has since been repealed (twice over it seems) and so the specific controversy is no longer there to serve as a basis for the opinion and any opinion in this case would amount to an advisory opinion which is generally avoided in SCt jurisprudence; (4) the SCt shouldn’t decide this case because it occurred on federal property and the courts in the past have recognized that the federal govt has special powers to regulate activity on federal lands that it does not have on state lands or private property, so any ruling would not be of any help in practical effect, particularly since the statute has been repealed anyway.

    I do not say that I agree with the arguments advanced, only that they do not seem quite as nonsensical to me as they do to Herschel. But, again, that is probably a defect in my humanity caused by years of exposure to our toxic legal system.

    My overall impression is that this may not be the best case to bring to the Supreme Court for them to review the right of citizens to be armed outside the home as there do seem to be alot of quirky things about the facts which would allow future courts to distinguish this case from ones in front of them, even if the Sct came out and said that petitioner’s 2nd Amendment rights had been violated. In other words, lower courts are famous for taking clear Supreme Court precedent and brushing it aside by citing how the Supreme Court case involved a very different factual situation. The 9th Circuit is particularly infamous for ignoring Supreme Court precedent they don’t like and they are the most reversed appellate court for good reason.

    On the other hand, it might be helpful if the SCt at least announced a standard for how courts should analyze 2nd Amendment cases outside the home. (But it sounds like the Heller court declined to provide any such standard so it’s doubtful that this Court would do so either).

    All in all, the SCt generally likes to duck constitutional issues if it possibly can on other grounds and this one sounds like it has plenty of escape hatches the Court can use if it wants to.

    Wouldn’t it be nice if we had some conservative members of Congress or presidential candidates who would take the horns on this and propose a law that would leave it to each individual state to determine its gun laws while also providing clear boundaries that respect the 2nd Amendment?

    I know, I know. I am asking WAYYYYY too much here, as usual.

  3. On October 27, 2011 at 10:19 am, Herschel Smith said:

    Thanks for your learned comments, Glen. I always appreciate your views. I guess I would stipulate that I don’t know that this is the “best” case for extending Heller outside the home because I don’t know all of the cases out there for possible consideration before the SCt.

    Having said that, remember that I am not merely panning the approach that they took where they say the SCt. should reject it because of this, and if not this, then that, and if not that, the other thing … and so on. I confess I do find this practice highly annoying and very telling of the legal profession.

    I am saying more than that. I am saying that they posed the problem that this case has too much specificity to be considered by the SCt. In the “this … then that … then the other” approach, the have actually walked that position completely back to contradict themselves by saying that the case is too broad with too many implications. Then they turn around and contradict themselves again by the end of the argument.

    Arging in a tiered manner is okay. Contradicting yourself isn’t. They lose me at that point.

    Also, I don’t really see quirky things. It’s just a guy who needed a weapon for self defense. Take the ammunition away from a gun and you have a stick. A stick is worthless for defending yourself against a person with a gun.

    His violation of parking regulations is irrelevant and it’s petty for the brief to bring it up. The fact that it is NPS land is irrelevant because the constitution applies there too.

    Thanks again Glen.

  4. On October 28, 2011 at 10:41 am, Matt Levy said:


    Thanks for this very insightful post. Thought you might like to know that we filed a reply brief on behalf of Mr. Masciandaro today.

    You can get it (and all the briefs) at


    Matt Levy

  5. On November 1, 2011 at 6:36 pm, Old Easterner said:


    the notion that a loaded firearm is “surely more dangerous than an unloaded one.”


    If this were so, then we'd be safer if police only carried unloaded guns.

    If police are safer by carrying loaded guns, then so am I.

  6. On November 1, 2011 at 7:51 pm, Gary said:

    “They don’t have the right under any condition to pass laws that violate constitutional guarantees. To say that Congress passed a law and this is federal land so this must be okay is “begging the question.” The issue is, “Is the law constitutional?”

    I absolutely agree. The Constitution applies to all territories governed by the USA, Federal, local or territorial.

    Good job.

  7. On November 2, 2011 at 6:38 am, TS Alfabet said:

    Ah Gary, if only we lived in that Constitutional Republic.

    Sadly, the courts have so eroded the Constitution with “penumbras” and various levels of scrutiny and balancing tests that it is no longer possible to ask the obvious question, “Is the law constitutional?”

    (Well… yes, we can ask it, but the Elites, the Big Brothers and Sisters, will smirk and shake their heads knowingly… “another rube…”)

    Unfortunately, when the federal courts examine the constitutionality of any law, they may very well come down on the side of upholding an obviously unconstitutional restriction to the 2nd Amendment based upon the very things that the Solicitor General cites.

    We need a fundamental restoration of the republic at this point which starts with electing more conservatives to Congress and the White House who will appoint and approve conservative judges and justices who can overturn alot of the unconstitutional caselaw that has accumulated over the years.

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You are currently reading "Analysis Of Brief For The U.S. In Opposition to Sean Masciandaro", entry #7788 on The Captain's Journal.

This article is filed under the category(s) Featured,Firearms,Guns,Second Amendment and was published October 25th, 2011 by Herschel Smith.

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