United States v. MasciandaroUnited States v. Masciandaro
Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judge WILKINSON and Senior Judge DUFFY joined except as to Part III.B. Judge WILKINSON wrote the opinion for the court as to Part III.B, in which Senior Judge DUFFY joined. Judge NIEMEYER wrote a separate opinion as to Part III.B.
OPINION
writing for the court except as to Part III.B:
Sean Masciandaro was convicted of carrying or possessing a loaded handgun in a motor vehicle within a national park area, in violation of
Because we conclude that the holding in
United States v. Hark,
On Masciandaro’s constitutional challenge, we conclude that Masciandaro’s Second Amеndment claim to a right to carry or possess a loaded handgun for self-defense is assessed under the intermediate scrutiny standard, and, even if his claim implicates the Second Amendment, a question we do not resolve here, it is defeated by applying that standard. We conclude that the government has amply shown that the regulation reasonably served its substantial interest in public safety in the national park area where Masciandaro was arrested. Thus, we hold that
Although Masciandaro has also mounted a separate facial challenge to
Accordingly, we affirm.
I
On June 5, 2008, at about 10:00 a.m., United States Park' Police Sergeant Ken Fornshill, who was conducting a routine patrol of Daingerfield Island, near Alexandria, Virginia, observed a Toyota hatchback parked illegally. The vehicle was parked parallel to the side of the parking lot, in violation of the sign indicating “Front End Parking Only.” As Sgt. Fornshill approached the vehicle, he saw Masciandaro and his girlfriend sleeping inside and awoke them by tapping on the window. He asked Masciandaro for his driver’s license, which Masciandaro produced from a messenger bag located in the vehicle’s rear compartment. While Masciandaro was retrieving his license, Sgt. Fornshill noticed a large “machete-type” knife protruding from underneath the front seat, prompting him to ask Masciandaro whether there were any other weapons in the vehicle. When Masciandaro replied that he had a loaded handgun in the same bag, Sgt. Fornshill placed Masciandaro under arrest. Following a search, Fornshill uncovered a loaded 9mm Kahr semiautomatic pistol, and at the police station, Masciandaro produced an expired Virginia concealed weapon carry permit.
Daingerfield Island, where Masciandaro was arrested, is not an island but an outcropping of land extending into the Potomac River near Alexandria. The area, which is managed by the National Park Service, is used for recreational purposes and includes a restaurant, marina, biking trail, wooded areas, and other public facilities.
Masciandaro was charged with “carrying or possessing a loaded weapon in a motor vehicle” within national park areas, in violation of
At trial, Masciandaro explained that he carried the handgun for self-defense, as he frequently slept in his car while traveling on business, and that while traveling, he often kept cash, a laptop computer, and other valuables on hand. The place where Masciandaro was arrested on June 5, 2008, was 20 miles from his residence in Wood-bridge, Virginia.
On April 30, 2008, slightly more than a month before Masciandaro was arrested, the Secretary of the Interior proposed a revision to
Notwithstanding any other provision in this Chapter, a person may possess, carry, and transport concealed, loaded, and operable firearms within a national park area in accordance with the laws of the state in which the national park area, or that portion thereof, is located, except as otherwise prohibited by applicable Federal law.
73 Fed. Reg. 74,966, 74,971-72 (codified at
When
On March 19, 2009, while Masciandaro’s appeal to the district court was pending, the District Court for the District of Columbia issued a preliminary injunction, blocking enforcement of newly promulgated
The Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an individual from possessing a firearm including an assembled or functional firearm in any unit of the National Park System or the National Wildlife Refuge System if — -
(1) the individual is not otherwise prohibited by law from possessing the firearm; and
(2) the possession of the firearm is in compliance with the law of the State in which the unit of the Natiоnal Park System or the National Wildlife Refuge System is located.
16 U.S.C. § la-7b(b).
On appeal, the district court rejected Masciandaro’s argument for application of
From the judgment of the district court, dated August 26, 2009, Masciandaro filed this appeal.
II
Masciandaro contends first that he should not have been prosecuted under
Masciandaro does not dispute the fact that on June 5, 2008, he carried or possessed a loaded weapon in a motor vehicle within a national park. Nor does he dispute the fact that at the time he was arrested,
The district court applied the Supreme Court’s decision in
United States v. Hark,
The reason for the common law rule that the repeal of a statute ends the power to prosecute for prior violations is absent in the case of a prosecution for violation of a regulation issued pursuant to anexisting statute which expresses a continuing policy, to enforce which the regulation was authorized. Revocation of the regulation does not repeal the statute; and though the regulation calls the statutory penalties into play, the statute, not the regulation, creates the offense and imposes punishment for its violation.
Id.
(citing
United States v. Curtiss-Wright Export Corp.,
As in
Hark,
the regulation at issue here was promulgated pursuant to an enabling statute that permitted the Secretary of the Interior to issue rules in furtherance of a specific objective. In
Hark,
the Emergency Price Control Act authorized the Price Administrator to establish “by regulation ... maximum prices” of a variety of goods so as to prevent profiteering,
see
Emergency Price Control Act of 1942, §§ 1(a), 2(a), 56 Stat. 23, 23-24 (1942), whereas the enabling statute here,
Masciandaro claims that
Hark
is distinguishable because
Masciandaro suggests that
Hark
is also distinguishable insofar as it depended on the continuing vitality of the underlying enabling statute.
See Hark,
While it is true that the Credit CARD Act prohibited the Secretary of the Interi- or from enforcing a regulation such as
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
This provision reversed the common-law rule, under which the repeal of a criminal law “preclude[d] punishment for acts antedating the repeal.”
Landgraf
Accordingly, “unless [a] repealing statute explicitly provides otherwise, the repeal of a criminal statute neither abates the underlying offense nor affects its attendant penalties with respect to acts committed prior to repeal.”
United States v. Bradley,
While Masciandaro does argue that Congress eliminated the Secretary’s power to restrict firearm possession under
In sum, we conclude that Masciandaro was properly prosecuted under
Ill
We now turn to Masciandaro’s constitutional challenge to
[H]e travels extensively because of his small business and is frequently forced to sleep in his car while he is on the road. He has a Second Amendment right to keep a loaded handgun in the back of his car for the purpose of self-defense and defense of the valuable business property, cash, and personal property he carries with him in the car.
Masciandaro points out that his handgun is the “quintessential self-defense weapon” and that he is exactly the type of “law-abiding citizen” who is the primary intended beneficiary of the Second Amendment’s protections.
The government maintains that the holding of Heller is inapplicable here. It argues:
In Heller, the Supreme Court held that the District of Columbia law that “totally ban[ned] handgun possession in the home” and prohibitеd] rendering any lawful firearm in the house operable for the purpose of immediate self-defense violated the Second Amendment. Because the Supreme Court’s decision is limited to the possession of firearms in the home, it does not invalidate the regulation at issue, which narrowly involves only the possession of a loaded firearm in a motor vehicle on National Park Service land.
Both parties are correct, albeit incomplete, in their descriptions of the holding in Heller, yet both disagree on the scope of the constitutional right articulated there. Thus, in resolving Masciandaro’s constitutional challenge, we will begin with a discussion of Heller* s holding and then proceed to address, seriatim, the scope of the Second Amendment right to keep and bear arms; the scrutiny that is applied in determining whether a regulation of firearms in national parks is justified; the question of whether a national park is a “sensitive place” where prohibiting firearms is a presumptively lawful regulatory measure; and the application of our conclusions to Masciandaro’s circumstances.
A
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Resolving the longstanding issue whether the Second Amendment guarantees an
Considering the constitutionality of a District of Columbia statute that prohibited private citizens from possessing handguns and required other legal firearms, such as long guns, to be stored in a fashion that rendered them inoperable, the Court held that the statute violated the Second Amendment, stating:
The handgun ban amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.
* * *
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered аnd kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.
Heller,
But in reaching its holding, the Court did not define the outer limits of the Second Amendment right to keep and bear arms. It did point out, however, that the right was “not unlimited, just as the First Amendment’s right of free speech was not.” Id. at 2799; see also id. at 2816 (noting that the right was not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”). Illustrating this point, the Court related that a majority of the 19th-century courts that considered prohibitions on carrying concealed weapons held them to be lawful under the Second Amendment. Id. at 2816. It summarized:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such аs schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 2816-17. The Court explained in a footnote that it was identifying these “presumptively lawful regulatory measures only as examples.” Id. at 2817 n. 26.
Not only did the
Heller
Court not define the outer limits of Second Amendment rights, it also did not address the level of
Two years after deciding
Heller,
the Supreme Court revisited the Second Amendment in
McDonald v. City of Chicago,
— U.S.-,
The upshot of these landmark decisions is that there now exists a clearly-defined fundamental right to possess firearms for self-defense within the home. 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.
NIEMEYER, Circuit Judge, writing separately on this Part III.B:
B
Invoking
Hellers
direct holding, Masciandaro argues that because he regularly slept in his car, as much as three to five days a week while traveling on business, his arrest for carrying or possessing a handgun ran afoul of Heller*s core protection of the right “to use arms in defense of hearth and home.”
Heller,
I would reject Masciandаro’s argument that his car, even when he slept in it frequently, was his “home” so as to fall within the core protection articulated in Heller. In the circumstances where Masciandaro had a residence in Woodbridge, Virginia, which was only 20 miles from where he was found sleeping by Sgt. Fornshill, and the place where he was found sleeping was a public parking place, we need not explore further the factors essential to making a place a person’s home for Heller’s core protection. I would conclude, in the circumstances of this case, that Masciandaro’s car was not his home.
Masciandaro also argues that he possessed a constitutional right to possess a loaded handgun for self-defense outside the home. I would agree that there is a plausible reading of Heller that the Second Amendment provides such a right, at least in some form.
The
Heller
Court began by noting that the right predated the Constitution and always was an important part of individual freedom' — one of “the fundamental rights of Englishmen.”
Heller,
Consistent with the historical understanding of the right to keep and bear arms outside the home, the
Heller
Court’s description of its actual holding also implies that a broader right exists. The Court stated that its holding applies to the home, where the need “for defense of self, family, and property
is most acute,” Heller,
What the
Heller
Court describes as the general preexisting right to keep and bear arms for participation in militias, for self-defense, and for hunting is thus not strictly limited to the home environment but extends in some form to wherever those activitiеs or needs occur, just as other Amendments apply generally to protect other individual freedoms. But I would not conclude that the right is all-encompassing such that it extends to all places or to all persons, as the Supreme Court has explicitly recognized.
See Heller,
writing for the court:
C
Masciandaro argues that
Without responding to Masciandaro’s argument directly, the government asserts that
In Heller; the Supreme Court expressly avoided deciding what level of scrutiny should be applied when reviewing a law burdening the right to keep and bear arms,
see Heller,
We have held that intermediate scrutiny should be applied when reviewing a Second Amendment challenge to
Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his clаim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant. Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons.
Id.
at 682-83;
see also United States v. Marzzarella,
In the case before us, Masciandaro was a law-abiding citizen at the time of his arrest, without any criminal record, whereas in
Chester,
the defendant was a domestic violence misdemeanant. On the other hand, Chester was in his home, where the core
Heller
right applies, whereas Masciandaro was in a public park. These different contexts might call for different judicial approaches.
See United States v. Yancey,
The Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right. Gun-control regulations impose varying degrees of burden on Second Amendment rights, and individual assertions of the right will come in many forms. A severe burden on the core Second Amendment right of armed self-defense should require strong justification. But less severe burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate the central self-defense concern of the Second Amendment, may be more easily justified.
Chester,
As we observe that any law regulating the content of speech is subject to strict scrutiny,
see, e.g., United States v. Playboy Entеrtainment Group, Inc.,
Were we to require strict scrutiny in circumstances such as those presented here, we would likely foreclose an extraordinary number of regulatory measures, thus handcuffing lawmakers’ ability to “prevent[ ] armed mayhem” in public places,
see Skoien,
D
Perhaps to avoid being required to carry any burden to justify its firearms regulations in national parks, which are properties owned and managed by the government, the government contends that
a large number of people, including children, congregate in National Parks for recreational, educational and expressive activities. Park land is not akin to a gun owner’s home and is far more analogous to other public spaces, such as schools, municipal parks, governmental buildings, and appurtenant parking lots, where courts have found firearms restrictions to be presumptively reasonable. Furthermore, as the district court noted, the locations within the National Parks where motor vehicles travel are even more sensitive, given that they are extensively regulated thoroughfares frequented by large numbers of strangers, including children.
It argues that in these circumstances, the law is presumptively “narrowly tailored to advance the compelling government interest” in public safety.
Maseiandaro contends that the parking lot at Daingerfield Island was not a “sensitive place” like a school or governmental building, as referenced to in Heller. He argues:
The George Washington Memorial Parkway, where [he] was charged with violation of the superseded [National Park Service] weapons regulation, is a public road and a major traffic thoroughfare in the Washington metropolitan area and is not a sensitive place....
There is a patchwork of regulations that allow people to use and possess weapons on NPS land, including parkways andremote forests and parks across the United States. Those regulations reflect the [Department of Interior’s] determination that NPS land is not sensitive, as a general matter. Indeed, the very same NPS regulation [ 36 C.F.R. § 2.4 ] that prohibits possession of loaded weapons in motor vehicles indicates that it is lawful to hunt with weapons, use them for target practice, have them in residential dwellings, use them for research activities, and carry them for protection in “pack trains” or on trail rides, all on NPS land.
(Citing
73 Fed. Reg. 74,966, 74,971 (Dec. 10, 2008)). Masciandaro points out that the National Park Service itself “has explicitly distinguished between the sorts of ‘sensitive places’ mentioned in
Heller
(schools and government buildings) on one hand and national parks on the other” when it explained that “nothing in [
These arguments raise the question whether the “sensitive places” doctrine limits the scope of the Second Amendment or, instead, alters the analysis for its application to such places.
The Supreme Court in
Heller
did state twice that the Second Amendment’s right to bear arms was “not unlimited.”
See
Like most rights, the right secured by the Second Amendment is not unlimited. ... Although we do not take an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.
Id. at 2816-17 (emphasis added). Because of the relation between the first statement and the examples, one might conclude that a law prohibiting firearms in a sensitive place would fall beyond the scope of the Second Amendment and therefore would be subject to no further analysis. But the Court added a footnote to its language, calling these regulatory measures “presumptively lawful.” Id. at 2817 n. 26 (emphasis added). The Court’s use of the word “presumptively” suggests that the articulation of sensitive places may not be a limitation on the scope of the Second Amendment, but rather on the analysis to be conducted with respect to the burden on that right.
The arguments of counsel about the meaning of the “sensitive places” language raise difficult questions about the scope of the Second Amendment and the scrutiny to be given to government regulations in sensitive places. In Chester, we explained the ambiguity inherent in these questions:
Having acknowledged that the scope of the Second Amendment is subject to historical limitations, the Court cautioned that Heller should not be read “to cast doubt on longstanding prohibitions” such as ... “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” [Heller, 128 S.Ct.] at 2816-17. Heller described its exemplary list of “longstanding prohibitions” as “presumptively lawful regulatory measures,” id. at 2817 n. 26, without alluding to any historical evidence that the right to keep and bear arms did not extend to ... the conduct prohibited by any of the listed gun regulations. It is unclear to us whether Heller was suggesting that “longstanding prohibitions” such as these were historically understood to be valid limitations on the right to bear arms or did not violate the Second Amendment for some other reason.
Chester,
We recognize the phrase “presumptively lawful” could have different meanings under newly enunciated Second Amendment doctrine. On the one hand, this language could be read to suggest the identified restrictions are presumptively lawful because they regulate conduct outside the scope of the Second Amendment. On the other hand, it may suggest the restrictions are presumptively lawful because they pass muster under any standard of scrutiny.
Marzzarella,
We need not, however, resolve the ambiguity in the “sensitive places” language in this case, because even if Daingerfield Island is not a sensitive place, as Masciandaro argues,
E
In reaching this result, we conclude first that the government has a substantial interest in providing for the safety of individuals who visit and make use of the national parks, including Daingerfield Island. Although the government’s interest need not be “compelling” under intermediate scrutiny, cases have sometimes described the government’s interest in public safety in that fashion.
See Schenck v. Pro-Choice Network,
We also conclude that
By permitting park patrons to carry unloaded firearms within their vehicles,
Accordingly, we hold that, on Masciandaro’s as-applied challenge under the Second Amendment,
IV
In view of our determination that
Without entertaining the novel notion that an overbreath challenge could be recognized “outside the limited context of the First Amendment,”
Salerno,
Because we conclude that
AFFIRMED
We are pleased to join Judge Niemeyer’s fine opinion with the exception of Part III.B. In our view it is unnecessary to explore in this case the question of whether and to what extent the Second Amendment right recognized in Heller applies outside the home.
There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that “self-defense has to take place wherever [a] person happens to be,” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litigation over sсhools, airports, parks, public thoroughfares, and various additional government facilities. And even that may not address the place of any right in a private facility where a public officer effects an arrest. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.
There is no such necessity here. We have no reason to expound on where the Heller right may or may not apply outside the home because, as Judge Niemeyer ably explains, intermediate scrutiny of any burden on the alleged right would plainly lead the court to uphold the National Park Service regulation.
The trend toward constitutional avoidance seems, finally, to be taking hold.
Ashwander,
at long last, is back.
See Ashwander v. TVA,
Sometimes saying a little less, rather than a little more, is a nice way to discharge our primary responsibility to the parties before us of deciding their case. At other times, of course, the need for clarity and guidance in future cases is paramount, but in this instance we believe the most respectful course is to await that guidance from the nation’s highest court.
There simply is no need in this litigation to break ground that our superiors have not tread. To the degree that we push the right beyond what the Supreme Court in
Heller
declared to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unsрeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the
If ever there was an occasion for restraint, this would seem to be it. There is much to be said for a course of simple caution.
Notes
In his opinion for the court, my good colleague concludes that we need not decide whether Masciandaro's Second Amendment rights were implicated outside the home. But, I respectfully note, this is not the type of case where constitutional avoidance is appropriate. First, we are confronted directly with the contention that
Second, I believe that application of the broader Second Amendment right discussed in
Heller
to factual settings arising outside the home involves precisely the kind of "difficult issue[]” the Supreme Court prefers to “mature through full consideration by the courts of appeals.”
E.I. du Pont de Nemours & Co.
v.
Train,