United States v. Masciandaro, 2011 U.S. App. LEXIS 5964

Masciandaro was charged with carrying or possessing a loaded weapon in a motor vehicle within a national park and with failing to comply with a parking sign at Daingerfield Island; he was arrested June 5, 2008, and later convicted on the handgun count under 36 C.F.R. § 2.4(b).
Masciandaro claimed he carried the handgun for self-defense while traveling, often sleeping in his car, and that § 2.4(h) (promulgated later) or the Credit CARD Act effectively superseded § 2.4(b).
The Secretary of the Interior proposed § 2.4(h) in April 2008 to align park-firearm regulation with state law; the final § 2.4(h) took effect January 9, 2009 after Masciandaro’s arrest.
The Credit CARD Act of 2009 added § 512, which prohibits enforcement of regulations that bar possession of firearms if the owner complies with state law; this provision postdates Masciandaro’s arrest.
The district court rejected the supersession argument and held § 2.4(b) constitutional as applied and that the savings statute preserved the government’s authority to prosecute pre-repeal conduct.
On appeal, the Fourth Circuit affirmed in part, holding § 2.4(b) constitutional as applied under intermediate scrutiny and foreclosing facial challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2.4(b) was superseded by § 2.4(h) or § 512 and thus should not have been applied.	Masciandaro contends post-arrest changes invalidate prosecution under § 2.4(b).	The regulation and enabling statute remained in force; savings statute preserves prosecution.	No; § 2.4(b) remained enforceable under the savings statute and was properly applied.
Whether § 2.4(b) violates the Second Amendment as applied to Masciandaro.	High burden on self-defense rights outside the home; Heller protects broader self-defense.	Regulation is narrowly tailored to public safety and outside the home; permissible under intermediate scrutiny.	§ 2.4(b) is constitutional as applied under intermediate scrutiny.
Whether § 2.4(b) is unconstitutional on its face.	Regulation may be overbroad beyond the facts of this case.	As-applied upholding forecloses facial challenge; not appropriate to strike broadly.	Facial challenge rejected; regulation sustained as applied.
What level of scrutiny applies to Second Amendment restrictions outside the home and whether § 2.4(b) passes it.	Strict scrutiny should apply to a fundamental right.	Intermediate scrutiny appropriate for burdens outside the home; in this case § 2.4(b) passes.	Intermediate scrutiny applied; § 2.4(b) passes.

Heller v. District of Columbia, 554 U.S. 570 (U.S. 2008) (held right to keep and bear arms includes self-defense but not unlimited; presumptively lawful regulatory measures identified)
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (incorporates Second Amendment to the states; self-defense central; some regulations presumptively lawful)
United States v. Hark, 320 U.S. 531 (U.S. 1944) (savings statute and continuing offense theory; regulation enforcement survives repeal of regulation)
Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (federal retroactivity/savings principles used to assess post-arrest changes in law)
Chester v. United States, 628 F.3d 673 (4th Cir. 2010) (intermediate scrutiny applied to § 922(g)(9) in home context; informs approach outside home)
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (discusses scrutiny levels for firearm regulations outside core rights)