Julie Tizzard - Criminal Defense Attorney - New Orleans » New Orleans Criminal Attorney

admin — Tue, 06 Sep 2011 19:47:32 +0000

ILLEGAL CARRYING OF WEAPONS NATIONAL PARKS

No. __-_______

IN THE SUPREME COURT OF THE UNITED STATES

SEAN MASCIANDARO, Petitioner,

v. UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Antigone Peyton Matthew Levy Cloudigy Law PLLC 1800 Diagonal Road, Suite 600 Alexandria, VA 22314

(866) 531-6660 Antigone.Peyton@cloudigylaw.com Matthew.Levy@cloudigylaw.com

MICHAEL S. NACHMANOFF Federal Public Defender

Rachel S. Martin Assistant Federal Public Defender Counsel of Record Office of the Federal Public Defender 1650 King Street, Suite 500 Alexandria, VA 22314 (703) 600-0800 Rachel_Martin@fd.org

QUESTIONS PRESENTED

I. Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?

II. If there is a Second Amendment right to possess and carry a firearm for self-defense outside the home, is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land?

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

QuestionsPresented………………………………………………. i PartiestotheProceedings. ………………………………………….ii TableofContents……………………………………………….. iii Index to Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v TableofAuthorities……………………………………………… vi Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ConstitutionalandRegulatoryProvisionsInvolved. ……………………….. 2 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Mr. Masciandaro Was Arrested for Having a Loaded Weapon in His

Car While on NPS Land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Magistrate Judge Upheld the NPS Loaded Weapons Ban and ConvictedMr.Masciandaro. ……………………………… 5

C. The District Court Analyzed the NPS Loaded Weapons Ban Under ThreeConstitutionalTestsandUpheldtheConviction…………….. 7

D. The Court of Appeals Avoided the Constitutional Question and Applied an Intermediate Scrutiny Hybrid Analysis to Uphold the Conviction.. . . . . 8

ReasonsforGrantingthePetition. ……………………………………. 9

I. This Case Is the Right Vehicle to Clarify the Scope of the Second Amendment . ………………………………………………………10

iii

A. This Case Cleanly Presents the Question of Whether a Second Amendment Right to Self-Defense Exists Outside the Home.. . . . . . . . . . 10

B. The Decision Below Was Incorrect Because It Failed to Recognize a Constitutional Right Outside the Home and Applied a Balancing Test toUpholdaTotalWeaponsBaninaCar. ……………………. 12

C. This Case Is Analogous to Heller and Squarely Presents the Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. Courts Will Not Recognize a Second Amendment Right to Self-Defense Outside One’s Home Until This Court Explicitly Tells Them That Right Exists . ………………………………………………………17

A. Lower Courts Are Concluding That the Second Amendment Right to Have a Firearm for Self-Defense Does Not Extend Outside the Home orAreAvoidingTakingaPositionontheQuestion……………… 17

B. This Court’s Guidance Is Needed Now, Before the Lower Courts Foreclose Any Constitutional Protection of the Self-Defense Right Outside the Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

III. Federal and State Appellate Courts Are Applying Invalid Tests to Uphold All Weapons Regulations That Impact Activities Outside the Home, Contrary to Heller’sDirection………………………………………….. 21

A. Masciandaro and Other Federal Decisions Employ Balancing Tests LiketheTestProposedbytheHellerDissent………………….. 22

B. State Appellate Courts Have Applied a Rational Basis Test to Uphold WeaponsRegulations. …………………………………. 25

C. Some Courts Have Used the “Presumptively Lawful” Measures Identified in Heller to Avoid Any Meaningful Analysis of a Weapon RegulationUnderAnyStandardofReview. ………………….. 26

D. Other Courts Have Attempted to Apply a Historical Analysis to Determine Whether Certain Weapons Regulations Pass Constitutional Muster. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 iv

INDEX TO APPENDIX

UnitedStatesv.Masciandaro,638F.3d458(4thCir.2011). ………………… 1a

UnitedStatesv.Masciandaro,648F.Supp.2d779(E.D.Va.2009)…………… 18a

United States v. Masciandaro, memorandum opinion, Viol. Nos. 1745586 &1745587(Feb.3,2009)(E.D.Va.2009). ………………………. 35a

Cases

TABLE OF AUTHORITIES

Annex Books v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009).. . . . . . . . 22-23 Borough of Duryea v. Guarnieri, No. 09-1476, slip op. (U.S. June 20, 2011). . . 28

Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Commonwealth v. McCollum, 79 Mass. App. Ct. 239 (Mass. App. Ct. 2011).. . . 27 Commonwealthv.Powell,459Mass.572(Mass.2011). ……………. 18,25 Crespov.Crespo,201N.J.207(N.J.2010)………………………… 25 DiGiacinto v. The Rector and Visitors of George Mason Univ., 281 Va. 127

(Va. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008).. . . . . passim

Eppsv.State,55So.3d710(Fla.Dist.Ct.App.2011)………………… 27

Garber v. Superior Court, 184 Cal. App. 4th 724 (Cal. Ct. App. 2010), perm. app.denied,No.S183580(Cal.Aug.11,2010)……………………… 19

Hamblenv.UnitedStates,591F.3d471(6thCir.2009)……………….. 27 InreUnitedStates,578F.3d1195(10thCir.2009). …………………. 27 Littlev.UnitedStates,989A.2d1096(D.C.2010)………………… 18,25 Mackv.UnitedStates,6A.3d1224(D.C.2010)…………………….. 18 McDonald v. City of Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). . . . . . . 17, 20 Nordyke v. King, ___ F.3d ___, 2011 WL 1632063 (9th Cir. May 2, 2011). . . . . 23 Pearsonv.Callahan,129S.Ct.808(2009)……………………… 12,13

People v. Aguilar, 408 Ill. App. 3d 136, 944 N.E.2d 816 (Ill. App. Ct. 2011), perm.app.granted,No.112116(Ill.May25,2011)………………….. 18

People v. Dawson, 403 Ill. App. 3d 499 (Ill. App. Ct. 2010), cert. denied, 2011 WL766601(May2,2011)…………………………………. 18,25

People v. Delacy, 192 Cal. App. 4th 1481 (Cal. Ct. App. 2011). . . . . . . . . . . . . . 27 People v. Flores, 169 Cal. App. 4th 568 (Cal. Ct. App. 2008), perm. app.

denied,No.S170073(Cal.Mar.18,2009)…………………. 19-20,25,27 People v. Perkins, 62 A.D.3d 1160, 880 N.Y.S.2d 209 (N.Y. App. Div. 2009),

perm.app.denied,13N.Y.3d748(N.Y.2009)…………………… 18,25 People v. Williams, 405 Ill. App. 3d 958 (Ill. App. Ct. 2010), perm. app.

docketed,No.111594(Ill.May9,2011). …………………………. 18 People v. Yarbrough, 169 Cal. App. 4th 303 (Cal. Ct. App. 2008), perm. app.

denied,No.S169983(Cal.Mar.18,2009)…………………………. 19

Richards v. County of Yolo, 2011 WL 1885641 (E.D. Cal. May 16, 2011). . . . . . 23

Spencerv.State,286Ga.483(Ga.2010)………………………….. 27

State v. Knight, 44 Kan. App. 2d 666 (2009), perm. app. docketed, No. 100167 (Kan.Nov.8,2010). …………………………………….. 18,27

Statev.Morris,2009WL3807159(OhioCt.App.Nov.13,2009). ………. 27

State v. Schultz, No. 10-CM-138 (Wis. Cir. Ct. Clark County Oct. 12, 2010).. . . 17

State v. Sieyes, 168 Wash. 2d 276 (Wash. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 28

UnitedStatesv.Anderson,559F.3d348(5thCir.2009)……………….. 27

UnitedStatesv.Barton,633F.3d168(3dCir.2011). ………………… 28

United States v. Booker, ___ F.3d ___, 2011 WL 1631947 (1st Cir. May 2, 2011)…………………………………………………… 22

UnitedStatesv.Chester,628F.3d673(4thCir.2010)…………… 21,22,24 vii

UnitedStatesv.Dorosan,350F.App’x874(5thCir.2009). ………… 19,27 UnitedStatesv.Fincher,538F.3d868(8thCir.2008)………………… 27 UnitedStatesv.Khami,362F.App’x501(6thCir.2010). …………….. 27 United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), cert. denied, 131 S.

Ct. 958 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).. . . . . . . . . . . . passim United States v. Masciandaro, 648 F. Supp. 2d 779 (E.D. Va. 2009). . . . 1, 5, 7, 11 UnitedStatesv.McCane,573F.3d1037(10thCir.2009)………………. 27 United States v. Portillo-Munoz, ___ F.3d ___, 2011 WL 2306248 (5th Cir.

June 13, 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 UnitedStatesv.Pruess,2011WL893793(4thCir.Mar.14,2011)……….. 28

United States v. Reese, 627 F.3d 792 (10th Cir. 2010), cert. denied, 131 S. Ct. 2476 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

UnitedStatesv.ReneE.,583F.3d8(1stCir.2009). …………………. 28 UnitedStatesv.Richard,350F.App’x252(10thCir.2009). …………… 27 UnitedStatesv.Ross,323F.App’x117(3dCir.2009). ………………. 27 UnitedStatesv.Seay,620F.3d919(8thCir.2010)…………………… 27

United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) (“Skoien I”), vacated, 614 F.3d 638 (7th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1674 (2011) . ………………………………………………… 22-23,24

United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc) (“Skoien II”), cert.denied,131S.Ct.1674(2011)………………………… 18,23,28

UnitedStatesv.Vongxay,594F.3d1111(9thCir.2010). ……………… 28 UnitedStatesv.White,593F.3d1199(11thCir.2010)………………… 27

viii

United States v. Williams, 616 F.3d 685 (7th Cir.), cert. denied, 131 S. Ct. 805 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

UnitedStatesv.Yancey,621F.3d681(7thCir.2010). ……………….. 28 Williams v. State, 417 Md. 479 (Md. 2011), petition for cert. filed, 79

U.S.L.W.3594(Apr.5,2011). …………………………… 18,19,25 Woodenv.UnitedStates,6A.3d833(D.C.2010)……………………. 18

Federal Constitutional Provision, Statutes, Regulations, and Rules U.S.Const.,amend.II……………………………………. passim 1 U.S.C. § 109.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 16 U.S.C. § 1a-7b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 18 U.S.C. § 3401.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 18 U.S.C. § 3402.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1254.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 36C.F.R.§2.4(2007). ………………………………….. passim Fed. R. Crim. P. 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State Statutes Ala.Code§13A-11-73………………………………………. 16 AlaskaStat.§11.61.190etseq.. ……………………………….. 16 Ark.CodeAnn.§5-73-120. ………………………………….. 16 Ariz.Rev.Stat.§13-3102. …………………………………… 16

Cal.PenalCode§12031(asofJanuary1,2012,revisedto§25850)………. 16 Colo.Rev.Stat.§18-12-105. …………………………………. 16 Conn.Gen.Stat.§29-35……………………………………… 16 Del.CodeAnn.tit.11,§1442. ………………………………… 16 D.C.Code§7-2507.02(2001)…………………………………. 14 D.C.Code§22-4504.02……………………………………… 15 Fla. Stat. § 790.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Ga. Code Ann. § 16-11-126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Haw. Rev. Stat. § 134-26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Haw. Rev. Stat. § 134-51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 IdahoCodeAnn.§18-3302(9)…………………………………. 16 720Ill.Comp.Stat.5/24-1……………………………………. 15 Ind.Code§35-47-2-1……………………………………….. 16 Iowa Code § 724.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Kan.Stat.Ann.§21-4201. …………………………………… 16 Ky.Rev.Stat.Ann.§527.020. ………………………………… 16 La.Rev.Stat.Ann.§14:95……………………………………. 16 La.Rev.Stat.Ann.§32:292.1…………………………………. 16 La.Rev.Stat.Ann.§40:1379.3………………………………… 16 Me.Rev.Stat.tit.12,§11212. ………………………………… 16 Md. Code Ann. Crim. Law § 4-203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mass.Gen.Lawsch.269,§10…………………………………. 16 Mich.Comp.Laws§750.227………………………………….. 16 Minn.Stat.§624.714……………………………………….. 16 Miss.CodeAnn.§97-37-1……………………………………. 16 Mo.Rev.Stat.§571.030. ……………………………………. 16 Mont. Code Ann. § 45-8-316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Neb.Rev.Stat.§28-1202…………………………………….. 16 Nev.Rev.Stat.§202.350…………………………………….. 16 N.H.Rev.Stat.Ann.§159:4. …………………………………. 16 N.J. Stat. Ann. § 2C:39-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.J. Stat. Ann. § 2C:39-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.M.Stat.Ann.§30-7-2. ……………………………………. 16 N.Y. Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.Y. Penal Law § 265.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.C.Gen.Stat.§14-269……………………………………… 16 N.D.Cent.Code§62.1-02-10. ………………………………… 16 OhioRev.CodeAnn.§2923.16………………………………… 16 Okla.Stat.tit.21,§1289.7……………………………………. 16 Or.Rev.Stat.§166.250……………………………………… 16 18Pa.Cons.Stat.§6106. ……………………………………. 16 R.I.Gen.Laws§11-47-8…………………………………….. 16

S.C.CodeAnn.§16-23-20……………………………………. 16 S.D.CodifiedLaws§22-14-9. ………………………………… 16 Tenn.CodeAnn.§39-17-1307. ……………………………….. 16 Tenn.CodeAnn.§39-17-1308. ……………………………….. 16 Tex.PenalCodeAnn.§46.02. ………………………………… 16 UtahCodeAnn.§76-10-505………………………………….. 16 Va.CodeAnn.§18.2-308. …………………………………… 16 Wash.Rev.Code§9.41.050. …………………………………. 16 W. Va. Code § 20-2-5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 W. Va. Code § 20-2-6a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Wis. Stat. § 167.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Wyo.Stat.Ann.§6-8-104. …………………………………… 16

Other Authorities JackKerouac,OntheRoad(1957)………………………………. 11

About Us, National Park Service, http://www.nps.gov/aboutus/index.htm (last visitedJune20,2011)………………………………………… 5

John Steinbeck, Travels with Charley: In Search of America (1962). . . . . . . . . . 11 Mark Tushnet, Permissible Gun Regulations After Heller: Speculations About

MethodandOutcomes,56UCLAL.Rev.1425(2009)………………… 21 MarkTwain,RoughingIt(1872). ………………………………. 11

Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

xii

No. __-_______

IN THE SUPREME COURT OF THE UNITED STATES

SEAN MASCIANDARO, Petitioner,

v. UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner, Sean Masciandaro, respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit (Pet. App., infra, 1a-17a) is reported at 638 F.3d 458 (4th Cir. 2011). The opinion of the district court (Pet. App., infra, 18a-34a) is reported at 648 F. Supp. 2d 779 (E.D. Va. 2009). The opinion of the magistrate judge (Pet. App., infra, 35a-42a) is unreported.

JURISDICTION

The United States District Court for the Eastern District of Virginia (magistrate judge Theresa Carroll Buchanan) had jurisdiction over the charge of possession of a loaded weapon in a motor vehicle located on National Park Service land (Violation No. 1745587) pursuant to 18 U.S.C. § 3401(a). Jurisdiction over Mr. Masciandaro’s appeal to the United States District Court for the Eastern District of Virginia (district court judge T. S. Ellis, III) derived from 18 U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g)(2)(B). The court of appeals had jurisdiction over Mr. Masciandaro’s appeal pursuant to 28 U.S.C. § 1291. That court issued its opinion and judgment on March 24, 2011. Mr. Masciandaro did not seek rehearing.

This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED

The Second Amendment to the United States Constitution provides: “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.” U.S. Const., amend. II.

The National Park Service regulation at issue provides that

Carrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation is prohibited, except that carrying or possessing a loaded weapon in a vessel is allowed when such vessel is not being propelled by machinery and is used as a shooting platform in accordance with Federal and State law.

36 C.F.R. § 2.4(b) (2007).

INTRODUCTION

Three years ago, this Court announced that the Second Amendment protects an individual right to keep and bear arms in self-defense and defense of the home. District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). Since that time, numerous federal and state appellate courts from around the country have refused to recognize any Second Amendment self-defense right outside the home. Some courts have assumed (without deciding) that the right could extend beyond the home. Others have explicitly refused to recognize any constitutional self-defense right that exists outside of a traditional primary residence. These courts have read Heller as identifying a constitutional self-defense right only in one’s home or have refused to expand the right until this Court explicitly does so. Lower courts have, to date, upheld every challenged firearm regulation outside the home (with one known exception) using one of four alternative tests.

Mr. Masciandaro is a law-abiding citizen who was found sleeping in his car with a loaded handgun in a bag in the trunk. He was sleeping in a parking lot on Daingerfield Island, which is National Park Service (“NPS”) land. Because of the loaded handgun in his car, he was convicted of violating 36 C.F.R. § 2.4(b) (2007), which prohibits possession and carrying of loaded weapons in motor vehicles located on NPS land.

Mr. Masciandaro asks this Court to recognize his right to possess and carry a loaded firearm in his car in case of confrontation. He also asks this Court to consider the constitutionality of the NPS loaded weapons ban.

STATEMENT OF THE CASE

A. Mr. Masciandaro Was Arrested for Having a Loaded Weapon in His Car While on NPS Land.

Mr. Masciandaro owns a small reptile education business, Raging Reptiles. See C.A.J.A. 17-18.1 He travels to trade shows, schools, and other events held in the Northeast and Mid-Atlantic areas to teach children and adults about exotic snakes, monitor lizards, bearded dragons, and other reptiles. During the spring and summer months in 2008, Raging Reptiles’ customers scheduled many reptile education shows and show-and-tells. In those hectic months, Mr. Masciandaro spent three to five days each week on the road, sleeping in his car with expensive equipment, cash from shows, and other valuable personal and business items. United States v. Masciandaro, 638 F.3d 458, 461, 467 (4th Cir. 2011). He carried a handgun in his vehicle for protection while he was on the road, id. at 461, until a United States Park Police officer confiscated it.

On the morning of June 5, 2008, Mr. Masciandaro was sleeping in his car in a gravel parking lot on Daingerfield Island, off the George Washington Memorial Parkway in Alexandria, Virginia. Id. at 460. Daingerfield Island is an outcropping of land extending into the Potomac River. Id. It has a restaurant, marina, biking trail, parking lots, and other public facilities. Id. This area is part of an 84-million-acre network of land and over 4.5 million acres of oceans, lakes, and reservoirs that are governed by NPS regulations and include sites

1 “C.A.J.A.” refers to the joint appendix filed in the court of appeals. 4

ranging from historic landmarks, untouched wilderness, and underwater coral reefs to commercial areas, RV campgrounds, and rest stops.2

While on patrol, a Park Police officer noticed that Mr. Masciandaro’s car was parked incorrectly in a “Front End Parking Only” area. Id. After approaching the car and finding Mr. Masciandaro asleep in the reclined driver’s seat, the officer woke him up and asked for his driver’s license. Id. Complying, Mr. Masciandaro pulled a messenger bag from the trunk after releasing a latch and pulling down the top of the back seat to expose the car trunk space. United States v. Masciandaro, 648 F. Supp. 2d 779, 782 (E.D. Va. 2009). With the seat leaned back, the officer noticed a knife under the driver’s seat and asked Mr. Masciandaro if he had any other weapons in the car. Masciandaro, 638 F.3d at 460. Mr. Masciandaro said he had a loaded handgun in his bag. Id. The officer searched the car, confiscated the Kahr P9 9mm semi-automatic handgun, and arrested Mr. Masciandaro. Id.

B. The Magistrate Judge Upheld the NPS Loaded Weapons Ban and Convicted Mr. Masciandaro.

Mr. Masciandaro was charged with unlawful possession of a loaded firearm in a motor vehicle on NPS land, 36 C.F.R. § 2.4(b), and with failure to comply with a parking sign. Pet. App. 35a.

After this Court issued its decision in Heller, Mr. Masciandaro filed two pre-trial motions to dismiss the loaded weapon charge. Id. One motion asserted that the NPS regulation is unconstitutional under the Second Amendment, either facially or as applied in

2 See About Us, National Park Service, http://www.nps.gov/aboutus/index.htm (last visited June 20, 2011); see also C.A.J.A. 17 n.5.

this case.3 Id. at 36a-37a. At a hearing, Mr. Masciandaro and the officer testified, the magistrate judge heard argument on the motions and took them under advisement, and the government provided additional trial evidence. Id. at 35a. The government did not present any evidence regarding public safety on NPS land generally or on Daingerfield Island, or data showing the number of visitors to that area.

On February 3, 2009, the magistrate judge found Mr. Masciandaro guilty of violating the NPS loaded weapons ban and failing to follow the traffic sign. Pet. App. 42a. In a memorandum opinion, the magistrate judge concluded that the NPS loaded weapons ban is not unconstitutional. Id. at 37a-38a. In the judge’s view, Heller struck down a “complete prohibition” on the use of handguns for protection by ordinary citizens, while the NPS loaded weapons ban allowed Mr. Masciandaro “to have both ammunition and a handgun in his car; he simply was required to keep the handgun unloaded while on Daingerfield Island.” Id. at 38a. Though the judge concluded that § 2.4(b) is “narrowly tailored,” id., she did not identify

3 The second motion sought to dismiss because § 2.4(b) had been superseded at the time of trial by 36 C.F.R. § 2.4(h), which allowed possession of a loaded weapon in a vehicle so long as such possession is “in accordance with the laws of the state” in which the NPS land is located. Pet. App. 39a. Section 2.4(h) itself was subsequently enjoined by the District Court for the District of Columbia. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2009). Congress later enacted 16 U.S.C. § 1a-7b as part of the Credit Card Accountability Responsibility and Disclosure Act of 2009, which directed that “[t]he Secretary of the Interior shall not promulgate or enforce any regulation” that prohibits possession of a functional firearm on NPS land if such possession complies with the laws of the state in which the land is located. Masciandaro, 638 F.3d at 461-62. The magistrate judge, district court, and Fourth Circuit all held that under 1 U.S.C. § 109 (the federal savings statute), the version of § 2.4(b) in effect at the time of Mr. Masciandaro’s arrest governed. Id. at 462, 465. Mr. Masciandaro does not seek review of that holding. Section 2.4(b) has never been formally repealed and the government could enforce it against other individuals, just as it maintains its enforcement efforts against Mr. Masciandaro.

a compelling government interest or describe how the law withstood a strict scrutiny analysis. The judge later imposed a fine for violation of the NPS loaded weapons ban. Masciandaro, 638 F.3d at 461.

C. The District Court Analyzed the NPS Loaded Weapons Ban Under Three Constitutional Tests and Upheld the Conviction.

Mr. Masciandaro appealed the weapons conviction to the district court, which requested supplemental briefs addressing the “sensitive places” aspect of Heller. On August 26, 2009, the district court affirmed. Masciandaro, 648 F. Supp. 2d at 795. The court concluded that the NPS loaded weapons ban is valid under the intermediate scrutiny, strict scrutiny, and “undue burden” tests. Id. at 789. Mr. Masciandaro’s as-applied challenge to the NPS loaded weapons ban failed because the regulation is limited to motor vehicles and does not ban loaded weapons in the home. Id. at 790.

The district court also determined that Heller’s list of “‘presumptively lawful regulatory measures’ points persuasively” to rejection of the as-applied challenge. Id. In its view, the “sensitive places” examples announced in Heller “plainly suggest that motor vehicles on National Park land fall within any sensible definition of a ‘sensitive place.’” Id. And the court rejected the facial challenge, noting that since the Second Amendment does not grant Mr. Masciandaro an absolute right to carry a loaded weapon in his vehicle, “it necessarily follows that § 2.4(b) has at least some constitutional applications.” Id. at 792.

D. The Court of Appeals Avoided the Constitutional Question and Applied an Intermediate Scrutiny Hybrid Analysis to Uphold the Conviction.

On appeal, the Fourth Circuit affirmed the conviction without deciding whether Mr. Masciandaro has a Second Amendment right to carry or possess a loaded handgun in his car for self-defense. Masciandaro, 638 F.3d at 460. The court stated that it would await direction from this Court “on the question of Heller’s applicability outside the home environment.” Id. at 475. Judge Niemeyer wrote separately on this issue. He stated that a right outside the home is “plausible” given the Court’s discussion of the self-defense right in Heller and felt that the court should recognize Mr. Masciandaro’s constitutional claim. Id. at 467-68. But he concluded that the NPS loaded weapons ban is constitutional. Id. at 474.

When analyzing the constitutional challenge, the Fourth Circuit stated that the core of the Second Amendment right is in the home. Id. at 470. So while strict scrutiny would be appropriate to evaluate regulations affecting gun possession in the home, the intermediate scrutiny standard was applied here based on the “longstanding out-of-the-home/in-the-home distinction.” Id. Moreover, the NPS loaded weapons ban “reasonably served [the government’s] substantial interest in public safety in the national park area where Masciandaro was arrested.” Id. at 460. Finally, the court noted that “[t]he 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.” Id. at 472. But it declined to decide whether Daingerfield Island is a sensitive place like the schools or government buildings identified in Heller. Id. at 473.

REASONS FOR GRANTING THE PETITION

The Fourth Circuit’s decision in this case highlights the difficulty that law-abiding gun owners and courts face in trying to understand the scope and depth of the individual right to keep and bear arms announced in Heller. Because the Fourth Circuit refused to analyze the scope of that right, gun owners have no greater constitutional self-defense right outside the home than they did before Heller. Yet Heller’s description of the right was not so limited: the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592.

Mr. Masciandaro’s case is the right vehicle to address this problem. The issue of whether the right to keep and bear arms in self-defense extends outside the home is squarely presented, even though a divided Fourth Circuit panel avoided deciding the question until this Court gives it guidance. The Fourth Circuit also applied a balancing test to uphold the challenged NPS loaded weapons ban, determining that the law’s burden on Mr. Masciandaro’s self-defense options was outweighed by speculative gains in safety that flow from a ban of loaded weapons in motor vehicles. Finally, this case is a natural extension of the situation presented in Heller. Mr. Masciandaro is a law-abiding, responsible citizen who was barred from having a functional (loaded) handgun available while traveling and sleeping in his car. The only substantial difference between this case and the unconstitutional statute at issue in Heller is that here the prohibited conduct occurred outside the home.

This issue is not limited to the decision below. Despite the text of the Second Amendment, federal and state appellate courts either expressly hold that the right to keep and

bear arms ends at the doorway to the home or avoid deciding the constitutional question. If this Court does not halt this trend, the Second Amendment will be reduced to a constitutional bar on laws that prohibit handgun possession for self-defense in the home.

This case highlights another problem with the growing Second Amendment jurisprudence: many lower courts are applying scrutiny tests that this Court explicitly discarded in Heller. In particular, a number of federal appellate courts are applying a balancing form of intermediate scrutiny, i.e., they are balancing burdens on the right to keep and bear arms against purported gains in safety. Additionally, a number of state courts are applying a “reasonable regulation” standard, which is little more than the rational basis test that the Court rejected in Heller.

Because of the importance of clarifying and protecting the right to keep and bear arms

outside the home, this Court should grant Mr. Masciandaro’s petition.

I. This Case Is the Right Vehicle to Clarify the Scope of the Second Amendment.

A. This Case Cleanly Presents the Question of Whether a Second Amendment Right to Self-Defense Exists Outside the Home.

Mr. Masciandaro’s case offers this Court an ideal opportunity to clarify the scope of the Second Amendment right to self-defense. There are no factual disputes or standing issues. And the practical effect of the restrictions in this case and Heller are similar: law-abiding citizens cannot have an operable handgun available in case of confrontation.

First, the facts relevant to this Second Amendment challenge are undisputed. Mr. Masciandaro is a law-abiding, responsible citizen who carried a loaded handgun in his car for self-defense. The regulation Mr. Masciandaro violated, 36 C.F.R. § 2.4(b), bans all loaded weapons in motor vehicles on all land controlled by the NPS, 85 million acres of public and private land under NPS care. This includes the George Washington Memorial Parkway and Daingerfield Island, which has a public parking lot next to the Parkway. Masciandaro, 648 F. Supp. 2d at 781. When Mr. Masciandaro was first questioned by the Park Police officer, his handgun was in a gun case, in a messenger bag, and in the car’s rear compartment. Id. at 782.

Second, explicit recognition of the self-defense right outside the home is appropriate in this case. Like Mr. Heller, Mr. Masciandaro is a law-abiding and responsible citizen. He lawfully possessed his handgun, which is not a dangerous or unusual weapon, and traveled with it for self-defense. The challenged regulation is nearly as extreme as the challenged statutes in Heller: there is no way for a law-abiding citizen to have a handgun available for self-defense (i.e., loaded and functional) without violating § 2.4(b).

If there is a Second Amendment right outside the home, it surely applies to law-abiding citizens carrying handguns for self-defense while traveling on public highways. The road trip is a quintessential American experience. See, e.g., Mark Twain, Roughing It (1872); John Steinbeck, Travels with Charley: In Search of America (1962); Jack Kerouac, On the Road (1957). The need to protect “self, family, and property” is acute on the road, as well as at home.

B. The Decision Below Was Incorrect Because It Failed to Recognize a Constitutional Right Outside the Home and Applied a Balancing Test to Uphold a Total Weapons Ban in a Car.

The Fourth Circuit’s decision ignores this Court’s explicit guidance regarding the fundamental nature of the right to keep and bear arms. First, the court declined to decide whether the Second Amendment right extends beyond the home:

Masciandaro, 638 F.3d at 475 (Wilkinson, J., writing for the court as to Part III.B). The court concluded that any right that might exist outside the home is outside the “core right,” and hence a “lesser showing” is necessary to demonstrate the validity of a regulation that affects such conduct. Id. at 471.

Judge Wilkinson relied on the Court’s decision in Pearson v. Callahan, 129 S. Ct. 808 (2009), to justify avoidance of the question of whether the constitutional right to keep and bear a firearm for self-defense exists outside of the home. Masciandaro, 638 F.3d at 475. But this is a misreading of Pearson, which simply changed the procedure for evaluating qualified immunity. Prior to Pearson, judges were required to determine if a constitutional right was violated before determining if that right was clearly established at the time of the accused official’s conduct. Pearson, 129 S. Ct. at 815-16. The Court held that judges are no longer bound to that sequence and could consider the “clearly established” prong first, if appropriate. Id. at 818. It changed the procedure because “there will be cases in which a court

will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Id. at 820. This change also allowed courts to avoid a situation where a defendant lost on the first prong (i.e., was found to have violated the plaintiff’s constitutional right) but won the second, putting the defendant in the uncomfortable position of winning, but potentially being unable to appeal the determination that a constitutional violation occurred. Id.

These concerns are not present here. Instead, the decision below denies Mr. Masciandaro (and all other citizens subject to the law of the Fourth Circuit) a determination of the scope of his Second Amendment right. The court simultaneously informed him that if he had such a right outside the home, it would not be worth as much as the gains in public safety the court assures him are realized, notwithstanding the absence of evidence on this point in the record. Mr. Masciandaro is entitled to know what his rights are, even if the NPS loaded weapons ban is a valid limitation on them.

In this case, the Fourth Circuit also improperly applied a balancing test to analyze § 2.4(b) and determined that “[t]he Secretary could have reasonably concluded that, when concealed within a motor vehicle, a loaded weapon becomes even more dangerous,” to justify the ban. Masciandaro, 638 F.3d at 473 (emphasis added). This language parallels Justice Breyer’s view in Heller of the District of Columbia’s handgun ban: “a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime.” Heller, 554 U.S. at 682

(Breyer, J., dissenting) (emphasis added). Moreover, unlike Heller, any gains in safety attributable to § 2.4(b) are purely speculative, as there is no evidence of them in the record. Mr. Masciandaro, like millions of law-abiding gun owners, should be told the scope of his right to keep and bear arms in case of confrontation. Under the decision below, he is

left with no more information about his constitutional right than he had before his arrest.

C. This Case Is Analogous to Heller and Squarely Presents the Questions.

The NPS loaded weapons ban is quite similar to D.C. Code § 7-2507.02 (2001), which was struck down as an invalid limitation on Mr. Heller’s Second Amendment right. See Heller, 554 U.S. at 635. Section 7-2507.02 required “that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.” Id. at 628. Heller expressly held that a complete prohibition of the use of handguns for self-defense in the home is invalid. Id. at 635. The NPS loaded weapons ban also prohibits the use of handguns (or any other firearm) for self-defense, albeit in a motor vehicle.

The decision below incorrectly implies that § 2.4(b) allows someone to load a firearm if the need for self-defense arises. See Masciandaro, 638 F.3d at 474. The text of the NPS loaded weapons ban is unambiguous, and contains no self-defense exception:

36 C.F.R. § 2.4(b). Once a person in a motor vehicle on NPS land loads a firearm and renders it operable, that person violates § 2.4(b). The only exception, which is not relevant here, is that “[a]uthorized Federal, State and local law enforcement officers may carry firearms in the performance of their official duties.” 36 C.F.R. § 2.4(e). So an off-duty police officer driving on the Rock Creek Parkway in Washington, DC (which is controlled by the NPS) would violate § 2.4(b) when carrying a loaded weapon in her car.

The Fourth Circuit concluded that allowing the carrying of unloaded firearms while prohibiting loading them “leaves largely intact the right to ‘possess and carry weapons in case of confrontation.’” Masciandaro, 638 F.3d at 474. This cannot be reconciled with the Court’s opinion in Heller. The Court held that a requirement that guns have trigger locks (which, according to the District’s counsel, could be removed in “3 seconds”) and be unloaded made “it impossible for citizens to use [firearms] for the core lawful purpose of self-defense and is hence unconstitutional.” Heller, 554 U.S. at 630. Like the challenged statutes in Heller, the NPS loaded weapons ban contains no self-defense exception, but does contain a specific enumerated exception for law enforcement.

Moreover, the NPS loaded weapons ban is generally inconsistent with state law. In fact, only Illinois, Wisconsin, and the District of Columbia have such stringent rules regarding carrying loaded weapons in motor vehicles. 720 Ill. Comp. Stat. 5/24-1; Wis. Stat. § 167.31; D.C. Code § 22-4504.02. Other states allow the carrying of loaded weapons in motor vehicles under at least some conditions. Twenty-three states require a license or

4 concealedweaponspermit, threestatesrequirealicenseorconcealedweaponspermitunless

the weapon is secured,5 thirteen states allow open carry in motor vehicles while requiring a concealed weapons permit for carrying a concealed weapon in a motor vehicle,6 and nine states have no restrictions on law-abiding citizens’ carrying a loaded weapon in a motor vehicle.7

4 Ala. Code § 13A-11-73; Ark. Code Ann. § 5-73-120; Cal. Penal Code § 12031 (as of January 1, 2012, revised to § 25850); Conn. Gen. Stat. § 29-35; Haw. Rev. Stat. §§ 134-26, 134-51; Ind. Code § 35-47-2-1; Iowa Code § 724.4; Me. Rev. Stat. tit. 12, § 11212; Md. Code Ann. Crim. Law § 4-203; Mass. Gen. Laws ch. 269, § 10; Mich. Comp. Laws § 750.227; Minn. Stat. § 624.714; N.H. Rev. Stat. Ann. § 159:4; N.J. Stat. Ann. §§ 2C:39-5, 2C:39-2; N.Y. Penal Law §§ 265.03, 265.20; N.D. Cent. Code § 62.1-02-10; Ohio Rev. Code Ann. § 2923.16; Okla. Stat. tit. 21, § 1289.7; 18 Pa. Cons. Stat. § 6106; R.I. Gen. Laws § 11-47-8; Tenn. Code Ann. §§ 39-17-1307-08; Wash. Rev. Code § 9.41.050; W. Va. Code §§ 20-2-5, 20-2-6a.

5 Fla. Stat. § 790.25; S.C. Code Ann. § 16-23-20; Va. Code Ann. § 18.2-308. The Virginia law was amended in 2010, after Mr. Masciandaro’s arrest. At the time of his arrest, Virginia required that a weapon not be concealed “about his person, hidden from common observation” without first obtaining a permit. Va. Code Ann. § 18.2-308 (2008). Since his handgun was in a gun case inside a messenger bag in the trunk of his car, Mr. Masciandaro’s gun was not about his person.

Ariz. Rev. Stat. § 13-3102; Del. Code Ann. tit. 11, § 1442; Idaho Code Ann. § 18-3302(9); Kan. Stat. Ann. § 21-4201 (as of July 1, 2011, see 2010 Kan. Sess. Laws ch. 136, § 187); Ky. Rev. Stat. Ann. § 527.020; La. Rev. Stat. Ann. §§ 14:95, 32:292.1, 40:1379.3; Mont. Code Ann. § 45-8-316; Neb. Rev. Stat. § 28-1202; Nev. Rev. Stat. § 202.350; N.C. Gen. Stat. § 14-269; Or. Rev. Stat. § 166.250; S.D. Codified Laws § 22-14-9; Wyo. Stat. Ann. § 6-8-104.

7 Alaska Stat. § 11.61.190 et seq.; Colo. Rev. Stat. § 18-12-105; Ga. Code Ann. § 16-11-126; Miss. Code Ann. § 97-37-1; Mo. Rev. Stat. § 571.030; N.M. Stat. Ann. § 30-7-2; Tex. Penal Code Ann. § 46.02 (weapon cannot be in plain view); Utah Code Ann. § 76-10-505. Vermont does not regulate carrying of firearms.

Because the NPS loaded weapons ban completely prohibits the acts of carrying or possessing a firearm for self-defense while on NPS land, including on heavily traveled parkways used for commuting, it is an invalid limitation on law-abiding citizens’ Second Amendment right.

II. Courts Will Not Recognize a Second Amendment Right to Self-Defense Outside One’s Home Until This Court Explicitly Tells Them That Right Exists.

A. Lower Courts Are Concluding That the Second Amendment Right to Have a Firearm for Self-Defense Does Not Extend Outside the Home or Are Avoiding Taking a Position on the Question.

Heller established an individual right to self-defense in the home that is protected by the Second Amendment. McDonald v. City of Chicago applied this right against the states under the Fourteenth Amendment and recognized its fundamental nature. 561 U.S. ___, 130 S. Ct. 3020 (2010). The decision below highlights an almost unanimous response from the courts: to limit the Second Amendment right to keep and bear arms to the strict holdings of those cases. In fact, Mr. Masciandaro has been unable to identify a single state or federal appellate court that has recognized a Second Amendment right outside the home.8 And many courts have considered the question.

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.,

8 A single trial court judge in Wisconsin held that Wisconsin’s concealed carry law violates the Second Amendment. State v. Schultz, No. 10-CM-138 (Wis. Cir. Ct. Clark County Oct. 12, 2010). That decision does not appear to have been appealed.

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.9 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

9 See Wooden v. United States, 6 A.3d 833, 841 (D.C. 2010) (“Neither self-defense as such, nor even self-defense in the home of another (with a weapon carried there), is entitled to such protection, as we have read Heller.”); Mack v. United States, 6 A.3d 1224, 1236 (D.C. 2010) (no right under Heller to carry outside the home); Little v. United States, 989 A.2d 1096, 1101 (D.C. 2010) (same); People v. Dawson, 403 Ill. App. 3d 499, 508 (Ill. App. Ct. 2010) (same), cert. denied, 2011 WL 766601 (May 2, 2011); People v. Williams, 405 Ill. App. 3d 958, 963 (Ill. App. Ct. 2010) (same), perm. app. docketed, No. 111594 (Ill. May 9, 2011); People v. Aguilar, 408 Ill. App. 3d 136, 944 N.E.2d 816, 827 (Ill. App. Ct. 2011) (same), perm. app. granted, No. 112116 (Ill. May 25, 2011); Commonwealth v. Powell, 459 Mass. 572, 589 (Mass. 2011) (same); People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209 (N.Y. App. Div. 2009) (same), perm. app. denied, 13 N.Y.3d 748 (N.Y. 2009); State v. Knight, 44 Kan. App. 2d 666, 685 (2009) (same), perm. app. docketed, No. 100167 (Kan. Nov. 8, 2010).

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.10

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. The Fourth Circuit declined to decide whether Mr. Masciandaro had a right outside the home and applied a lower standard of scrutiny to uphold the NPS loaded weapons ban. See Masciandaro, 638 F.3d at 474-76, 471. In another case involving federal property, the Fifth Circuit merely assumed (without deciding) that the right extends outside the home and upheld a law regulating gun possession on Postal Service property because it is a “sensitive place,” without further analysis. United States v. Dorosan, 350 F. App’x 874, 875 (5th Cir. 2009) (per curiam). California appellate courts have also concluded that if the Second Amendment right extends outside the home, it is entitled to less protection.11 For example, in People v. Flores, the defendant challenged several California statutes, including the state ban on

10 The Williams court also noted that the statute contains an exception for permit holders, and the defendant had never applied for a permit. 417 Md. at 488. The regulation at issue in this case is even more extreme, as here there are no exceptions to the ban except for law enforcement personnel “in the performance of their official duties.” See 36 C.F.R. § 2.4(e).

See People v. Yarbrough, 169 Cal. App. 4th 303, 313 (Cal. Ct. App. 2008) (distinguishing law from Heller because no effect on gun possession in home), perm. app. denied, No. S169983 (Cal. Mar. 18, 2009); Garber v. Superior Court, 184 Cal. App. 4th 724 (Cal. Ct. App. 2010) (unpublished portion) (stating that Heller only prohibited total ban on handguns for self-defense in home), perm. app. denied, No. S183580 (Cal. Aug. 11, 2010).

carrying a loaded weapon in a public place. 169 Cal. App. 4th 568, 576-77 (Cal. Ct. App. 2008), perm. app. denied, No. S170073 (Cal. Mar. 18, 2009). The court upheld the ban and limited the core Second Amendment right to the home, rather than to self-defense.

These courts ignore the import of the term “bear arms.” See Heller, 554 U.S. at 592 (“Putting all of these textual elements [of the Second Amendment] together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”). But see McDonald, 130 S. Ct. at 3119-20 (Stevens, J., dissenting) (“Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home.”). They will also continue to limit the Second Amendment right to the home until this Court affirmatively extends its scope.

B. This Court’s Guidance Is Needed Now, Before the Lower Courts Foreclose Any Constitutional Protection of the Self-Defense Right Outside the Home.

This Court has the opportunity in this case to give the lower courts the critical guidance they have explicitly and implicitly requested relating to the Second Amendment right. In the absence of that guidance, the lower courts are likely to continue to chip away at the constitutional right to keep and bear arms. If this Court does not step in now, the thoughts of one commentator may prove prophetic:

By the time the Supreme Court gets around to hearing substantive Second Amendment challenges, the only real question for the Court will be, I suspect, whether to give Heller a respectful burial by rejecting the individual-rights interpretation it adopted, or to pretend that the Second Amendment protects an individual right while giving essentially no content to it except as a constitutional barrier to complete

prohibitions on handgun possession in the home for self-defense purposes.

Mark Tushnet, Permissible Gun Regulations After Heller: Speculations About Method and Outcomes, 56 UCLA L. Rev. 1425, 1441-42 (2009).

This constitutional right should not be allowed to wither. But without intervention, lower courts will continue to limit the Second Amendment right to self-defense in the home. Only this Court can step in and protect the full scope of the individual Second Amendment right to self-defense that it announced, for the first time, three years ago.

III. Federal and State Appellate Courts Are Applying Invalid Tests to Uphold All Weapons Regulations That Impact Activities Outside the Home, Contrary to Heller’s Direction.

“Heller has left in its wake a morass of conflicting lower court opinions regarding the proper analysis to apply to challenged firearms regulations.” United States v. Chester, 628 F.3d 673, 688-89 (4th Cir. 2010) (Davis, J., concurring). Judge Davis’s observation in Chester is no exaggeration. Mr. Masciandaro has identified at least four different approaches used by lower courts in analyzing regulations under the Second Amendment: (1) balancing the burden against the benefit to public safety; (2) presuming a regulation is valid if it is short of a total ban on possession of handguns in the home for self-defense (the so-called “reasonable regulation” standard); (3) citing the “Heller dicta” as dispositive of different laws with little or no analysis; and (4) historically analyzing a regulation in light of Heller to determine if the limitation is valid.

The first two approaches are in tension with Heller. “Interest-balancing” was expressly rejected, and the reasonable regulation standard is little more than rational basis, which was also rejected. See Heller, 554 U.S. at 628 n.27, 634-35. The third approach, citing the Heller dicta with little analysis, may be consistent with the approach taken in Heller, at least for certain laws that are identical or highly analogous to the “presumptively lawful measures” the Court identified. The last approach is similar to the historical analysis described in Heller.

This Court’s guidance is urgently needed to clarify the appropriate standard to measure burdens on those protected activities. Currently, the analysis depends on the court considering the issue.

A. Masciandaro and Other Federal Decisions Employ Balancing Tests Like the Test Proposed by the Heller Dissent.

As noted in Part I.B, supra page 13, the Fourth Circuit applied a balancing test and upheld 36 C.F.R. § 2.4(b) as constitutional. Similarly, the First, Third, Fourth, Seventh, Ninth, and Tenth Circuits have applied a balancing form of “intermediate scrutiny” in at least some circumstances.12 That is, they balanced the increase in public safety against the burden

12 See United States v. Booker, ___ F.3d ___, 2011 WL 1631947, at *9-12 (1st Cir. May 2, 2011) (balancing burden on right to keep and bear arms against benefit of keeping guns out of hands of domestic violence misdemeanants); United States v. Marzzarella, 614 F.3d 85, 97-101 (3d Cir. 2010) (balancing burden on right to keep and bear arms against benefit of enabling tracing of weapons via serial numbers), cert. denied, 131 S. Ct. 958 (2011); Chester, 628 F.3d at 682-83 (“The question then becomes whether the government can justify, under the appropriate level of scrutiny, the burden imposed on Chester’s Second Amendment rights by § 922(g)(9).”); United States v. Skoien, 587 F.3d 803, 814 (7th Cir. 2009) (“In other words, ‘the public benefits of the restrictions must be established by evidence, and not just asserted[;] . . . lawyers’ talk is insufficient.’” (quoting Annex Books

on individual rights. For example, the en banc court in Skoien II emphasized the unsympathetic nature of the defendant to help justify prohibiting the possession of guns by domestic violence misdemeanants. 614 F.3d at 645. In all of these decisions, the court determined the usefulness of the regulation in improving public safety and determined that the improvement was substantial, i.e., worth having.

These approaches ignore this Court’s observation that “[w]e know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.” Heller, 554 U.S. at 634 (emphasis added). The Court warned against allowing judges to “decide on a case-by-case basis whether the right is really worth insisting upon.” Id.

A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march

v. City of Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009)) (alterations in original)) (“Skoien I”), vacated, 614 F.3d 638 (7th Cir. 2010) (en banc) (“Skoien II”), cert. denied, 131 S. Ct. 1674 (2011); United States v. Williams, 616 F.3d 685, 692-94 (7th Cir.) (balancing burden against benefits of keeping weapons out of hands of violent felons), cert. denied, 131 S. Ct. 805 (2010); Nordyke v. King, ___ F.3d ___, 2011 WL 1632063, at *5-6 (9th Cir. May 2, 2011) (“[W]e hold that only regulations which substantially burden the right to keep and bear arms trigger heightened scrutiny under the Second Amendment.”); United States v. Reese, 627 F.3d 792, 802-05 (10th Cir. 2010) (balancing burden on right to keep and bear arms against benefit of keeping weapons out of hands of people subject to protective orders), cert. denied, 131 S. Ct. 2476 (2011); see also Richards v. County of Yolo, 2011 WL 1885641, at *3 (E.D. Cal. May 16, 2011) (interpreting Nordyke to mean that “if the regulation does not place a substantial burden to an individual’s fundamental [Second Amendment] right, then rational basis review applies”).

through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different.

Heller, 554 U.S. at 634-35 (internal citation omitted). The lower federal courts have also taken the “core protection” of self-defense in the

home described in Heller to support application of the balancing test that Heller rejects. Courts applying intermediate scrutiny generally justify this approach by finding that whatever situation is currently being evaluated is outside the core of the Second Amendment right identified in Heller. See, e.g., Masciandaro, 638 F.3d at 471 (“While we find the application of strict scrutiny important to protect the core right of the self-defense of a law-abiding citizen in his home . . . we conclude that a lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home.” (internal quotation omitted, emphasis added)); Skoien I, 587 F.3d at 812 (“The Second Amendment challenge in this case is several steps removed from the core constitutional right identified in Heller.” (emphasis added)); Chester, 628 F.3d at 682-83 (“[W]e believe [Chester’s] claim is not within the core right identified in Heller . . . .” (emphasis added)).

By labeling whatever right is at issue “outside the core,” courts have justified use of the balancing test to uphold the regulations they have considered. Only this Court can stop this weakening of the historical right to keep and bear arms.

B. State Appellate Courts Have Applied a Rational Basis Test to Uphold Weapons Regulations.

Despite this Court’s explicit rejection of a rational basis analysis of regulations that impact the Second Amendment in Heller, a number of state courts of appeal are applying what has been called the “reasonable regulation” standard. See Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007). Under the reasonable regulation analysis of gun control regulations, courts consider the question of whether the challenged law is a reasonable method of regulating the right to bear arms. “So long as a gun control measure is ‘not a total ban on the right to bear arms,’ the courts will consider it a mere regulation of the right” and uphold those regulations. Id. at 717 (footnotes omitted). The courts of appeals in the District of Columbia, California, Illinois, Maryland, Massachusetts, New York, and New Jersey have all applied this standard to uphold various weapons regulations.13

This approach, too, is invalid under Heller. “Obviously, the [rational basis] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.” Heller, 554 U.S. at 628 n.27. The sheer number and variety of cases that analyze Second Amendment right issues and uphold every law they

13 See, e.g., Little, 989 A.2d at 1101 (Heller limited to ban on gun possession in home); Flores, 169 Cal. App. 4th at 576-77 (same); Dawson, 403 Ill. App. 3d at 510 (same); Williams, 417 Md. at 496 (same); Powell, 459 Mass. at 588-89 (same); Perkins, 62 A.D.3d at 1161 (same); Crespo v. Crespo, 201 N.J. 207, 210 (N.J. 2010) (upholding law allowing seizure of defendant’s firearms after finding of domestic violence because “the right to possess firearms clearly may be subject to reasonable limitations”).

consider demonstrate that lower courts have—and will continue to—apply deferential standards that have already been rejected by the Court.

C. Some Courts Have Used the “Presumptively Lawful” Measures Identified in Heller to Avoid Any Meaningful Analysis of a Weapon Regulation Under Any Standard of Review.

Other courts have attempted to determine the scope of the right by relying on and analogizing to what has come to be known in the lower courts and the academic community as the “Heller dicta”:

[N]othing 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 as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S. at 179, 59 S. Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Heller, 554 U.S. at 626-27 (footnote omitted). Since Heller, a number of courts have embraced the caution that these presumptively

lawful regulatory measures are examples: “our list does not purport to be exhaustive.” Id. at 627 n.26. Specifically, the Third, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits, and state appellate courts in California, Florida, Georgia, Kansas, Massachusetts, Ohio, and Virginia, have, in some circumstances, simply identified a “safe harbor” within the Heller dicta to

uphold a particular firearm regulation without any true analysis of the law.14 Although this approach may appropriately dispense of challenges to bans on gun possession by felons, it does not make sense in a case involving a prohibition such as the one at issue here. Cf. United States v. McCane, 573 F.3d 1037, 1050 (10th Cir. 2009) (Tymkovich, J., concurring) (wondering “whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases”).

D. Other Courts Have Attempted to Apply a Historical Analysis to Determine Whether Certain Weapons Regulations Pass Constitutional Muster.

A final group of courts have performed a hybrid historical analysis to determine if a limitation is one that the Founders would have understood to be part of the right to keep and

14 See United States v. Ross, 323 F. App’x 117, 120 (3d Cir. 2009) (“dangerous and unusual weapons”); United States v. Anderson, 559 F.3d 348, 352 n.6 (5th Cir. 2009) (gun possession by felons); Dorosan, 350 F. App’x at 875 (“sensitive places”); Hamblen v. United States, 591 F.3d 471, 474 (6th Cir. 2009) (weapons “not typically possessed by law-abiding citizens”); United States v. Khami, 362 F. App’x 501, 507-08 (6th Cir. 2010) (gun possession by felons); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010) (gun possession by drug abusers); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008) (weapons “in common use by law-abiding citizens”); In re United States, 578 F.3d 1195, 1200 (10th Cir. 2009) (gun possession by domestic violence misdemeanants); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009) (gun possession by felons); United States v. Richard, 350 F. App’x 252, 260 (10th Cir. 2009) (gun possession by drug abusers); United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) (gun possession by domestic violence misdemeanants); People v. Delacy, 192 Cal. App. 4th 1481, 1492 (Cal. Ct. App. 2011) (gun possession by violent misdemeanants); Flores, 169 Cal. App. 4th at 574-76 (gun possession by violent misdemeanants and concealed weapons); Epps v. State, 55 So. 3d 710, 711 (Fla. Dist. Ct. App. 2011) (gun possession by felons); Spencer v. State, 286 Ga. 483, 484 (Ga. 2010) (same); Knight, 44 Kan. App. 2d at 685-86 (concealed weapons); Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 258 (Mass. App. Ct. 2011) (licensing requirements); State v. Morris, 2009 WL 3807159, at *12 (Ohio Ct. App. Nov. 13, 2009) (gun possession by felons); DiGiacinto v. The Rector and Visitors of George Mason Univ., 281 Va. 127, 134-37 (Va. 2011) (“sensitive places”).

bear arms.15 This analysis is consistent with Heller’s historical approach and the Court’s statement that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them . . . .” Heller, 554 U.S. at 634-35. In a similar context, this Court undertook a historical analysis to determine whether the history and purpose of the Petition Clause of the First Amendment, which also enshrined a preexisting right, supports imposition of liability against a government employer. Borough of Duryea v. Guarnieri, No. 09-1476, slip op. at 14 (U.S. June 20, 2011) (“Some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty.”); see also slip op. at 2 (Scalia, J., concurring in the judgment in part and dissenting in part) (“The reference to ‘the right of the people’ indicates that the Petition Clause was intended to codify a pre-existing individual right, which means that we must look to historical practice to determine its scope. See District of Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).”).

15 See United States v. Rene E., 583 F.3d 8, 11-16 (1st Cir. 2009) (gun possession by juveniles); United States v. Barton, 633 F.3d 168, 172-75 (3d Cir. 2011) (gun possession by felons); United States v. Pruess, 2011 WL 893793, at *1 (4th Cir. Mar. 14, 2011) (per curiam) (vacating and instructing district court to conduct analysis of ban on gun possession by felons); United States v. Portillo-Munoz, ___ F.3d ___, 2011 WL 2306248, No. 11-10086, slip op. at 3-8 (5th Cir. June 13, 2011) (gun possession by illegal aliens); Skoien II, 614 F.3d at 642-44 (gun possession by domestic violence misdemeanants); United States v. Yancey, 621 F.3d 681, 682-87 (7th Cir. 2010) (per curiam) (gun possession by drug abusers); United States v. Vongxay, 594 F.3d 1111, 1114-18 (9th Cir. 2010) (gun possession by felons); State v. Sieyes, 168 Wash. 2d 276, 294-96 (Wash. 2010) (gun possession by juveniles).

APPENDIX TO THE PETITION

UnitedStatesv.Masciandaro,638F.3d458(4thCir.2011). ………………… 1a

UnitedStatesv.Masciandaro,648F.Supp.2d779(E.D.Va.2009)…………… 18a

United States v. Masciandaro, memorandum opinion, Viol. Nos. 1745586 &1745587(Feb.3,2009)(E.D.Va.2009). ………………………. 35a

638 F.3d 458

(Cite as: 638 F.3d 458)

United States Court of Appeals, Fourth Circuit. UNITED STATES of America, Plaintiff–Appellee, v. Sean MASCIANDARO, Defendant–Appellant.

No. 09–4839. Argued: Dec. 8, 2010. Decided: March 24, 2011.

Background: Defendant was convicted in the United States District Court for the Eastern District of Virginia, T.S. Ellis, III, Senior District Judge, 648 F.Supp.2d 779, of carrying or possessing a loaded handgun in a motor vehicle within a national park area, and he appealed.

Holdings: The Court of Appeals, Niemeyer, Circuit Judge, held that: (1) general federal savings statute preserved gov- ernment’s authority to prosecute defendant’s pre- repeal conduct covered by prior regulation, and

(2) application of regulation to defendant did not violate his Second Amendment rights.

Affirmed.

Niemeyer, Circuit Judge, wrote separately as to Part III.B.

Wilkinson, Circuit Judge, wrote the opinion for the court as to Part III.B, in which Duffy, Senior District Judge, sitting by designation, joined.

West Headnotes

[1] Weapons 406 108

406 Weapons 406I In General

406k102 Constitutional, Statutory, and Regu- latory Provisions

406k108 k. Retroactive operation. Most Cited Cases

Although prior regulation prohibiting carrying or possessing a loaded handgun in a motor vehicle within a national park was superseded post-arrest by a more lenient regulation that provided for state law to govern the legality of defendant’s actions, general federal savings statute preserved govern- ment’s authority to prosecute defendant’s pre-repeal conduct covered by prior regulation. 1 U.S.C.A. § 109; 36 C.F.R. § 2.4(b).

[2] Criminal Law 110 15

110 Criminal Law 110I Nature and Elements of Crime

110k12 Statutory Provisions 110k15 k. Repeal. Most Cited Cases

Unless a repealing statute explicitly provides otherwise, the repeal of a criminal statute neither abates the underlying offense nor affects its attend- ant penalties with respect to acts committed prior to repeal.

[3] Weapons 406 107(2)

406 Weapons 406I In General

406k102 Constitutional, Statutory, and Regu- latory Provisions

406k107 Construction 406k107(2) k. Right to bear arms in

general. Most Cited Cases Second Amendment provides a fundamental

right to possess firearms for self-defense within the home. U.S.C.A. Const.Amend. 2.

[4] Weapons 406 107(2)

406 Weapons 406I In General

406k102 Constitutional, Statutory, and Regu- latory Provisions

406k107 Construction 406k107(2) k. Right to bear arms in

Pet. App. 1a

Page 1

638 F.3d 458

(Cite as: 638 F.3d 458)

general. Most Cited Cases Intermediate scrutiny applied when reviewing a

Second Amendment challenge to regulation prohib- iting carrying or possessing a loaded handgun in a motor vehicle within a national park, and therefore regulation would be valid if government could demonstrate that it was reasonably adapted to a substantial governmental interest. U.S.C.A. Const.Amend. 2; 36 C.F.R. § 2.4(b).

[5] Weapons 406 106(3)

406 Weapons 406I In General

406k102 Constitutional, Statutory, and Regu- latory Provisions

406k106 Validity 406k106(3) k. Violation of right to

bear arms. Most Cited Cases Application of regulation prohibiting carrying

or possessing a loaded handgun in a motor vehicle within a national park to defendant did not violate his Second Amendment rights; the narrow regulat- ory prohibition was reasonably adapted to substan- tial governmental interest in providing for the safety of individuals who visit and make use of the national parks. U.S.C.A. Const.Amend. 2; 36 C.F.R. § 2.4(b).

[6] Constitutional Law 92 667

92 Constitutional Law 92VI Enforcement of Constitutional Provisions

92VI(A) Persons Entitled to Raise Constitu- tional Questions; Standing

92VI(A)1 In General 92k667 k. Third-party standing in gen-

eral. Most Cited Cases A person to whom a statute was constitution-

ally applied will not be heard to challenge that stat- ute on the ground that it may conceivably be ap- plied unconstitutionally to others, in other situ- ations not before the court.

*459 ARGUED: Antigone Gabriella Peyton, Fin- negan, Henderson, Farabow, Garrett & Dunner,

LLP, Washington, D.C., for Appellant. Jeffrey Zee- man, Office of the United States Attorney, Alexan- dria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Rachel S. Martin, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virgin- ia; Matthew Levy, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, D.C., for Ap- pellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON and NIEMEYER, Circuit Judges, and P A TRICK MICHAEL DUFFY , Senior United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judge WILKINSON and Senior Judge DUFFY joined ex- cept as to Part III.B. Judge WILKINSON wrote the opinion for the court as to Part III.B, in which Seni- or Judge DUFFY joined. Judge NIEMEYER wrote a separate opinion as to Part III.B.

OPINION

NIEMEYER, Circuit Judge, 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 36 C.F.R. § 2.4(b). He challenges his conviction on two grounds: (1) *460 that he was improperly charged under § 2.4(b), because after he was arres- ted but before he was tried, that regulation was su- perseded by a more lenient regulation that provided for state law to govern the legality of his actions; or alternatively (2) that section 2.4(b) violates the Second Amendment as applied to him and facially.

Because we conclude that the holding in United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944), as well as the general federal savings statute, 1 U.S.C. § 109, denies defendants an automatic entitlement to the benefit of post-ar-

Pet. App. 2a

Page 2

638 F.3d 458

(Cite as: 638 F.3d 458)

rest changes in the law, we find that Masciandaro was properly tried under the law as it existed on the date of his arrest.

On Masciandaro’s constitutional challenge, we conclude that Masciandaro’s Second Amendment claim to a right to carry or possess a loaded hand- gun for self-defense is assessed under the interme- diate scrutiny standard, and, even if his claim im- plicates 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 nation- al park area where Masciandaro was arrested. Thus, we hold that 36 C.F.R. § 2.4(b) is constitutional as applied to Masciandaro’s conduct.

Although Masciandaro has also mounted a sep- arate facial challenge to § 2.4(b), we conclude that this challenge is foreclosed by our determination that the regulation is constitutional on an as-applied basis.

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 Mas- ciandaro and his girlfriend sleeping inside and awoke them by tapping on the window. He asked Masciandaro for his driver’s license, which Mas- ciandaro 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 under- neath the front seat, prompting him to ask Mas- ciandaro 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 con- cealed 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 in- cludes 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 36 C.F.R. § 2.4(b), and failing to comply with a traffic control device (the parking sign), in violation of 36 C.F.R. § 4.12. These regulations were promulgated by the Secretary of the Interior under 16 U.S.C. § 3, which authorizes the Secretary to “make and publish such rules and regulations as he may deem necessary *461 or proper for the use and management of the parks, monuments, and reservations under the juris- diction of the National Park Service.” Violations of these regulations are punishable by a fine of not more than $500 or imprisonment not exceeding six months, or both. Id.

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 com- puter, and other valuables on hand. The place where Masciandaro was arrested on June 5, 2008, was 20 miles from his residence in Woodbridge, Virginia.

On April 30, 2008, slightly more than a month before Masciandaro was arrested, the Secretary of the Interior proposed a revision to 36 C.F.R. § 2.4, which was designed to harmonize the regulation of firearms in national parks with that by the States. See General Regulations for Areas Administered by the National Park Service and the Fish and Wildlife

Pet. App. 3a

Page 3

638 F.3d 458

(Cite as: 638 F.3d 458)

Service, 73 Fed. Reg. 23,388 (Apr. 30, 2008). The proposal advocated adding a new provision to § 2.4 which would allow individuals to possess loaded, operable firearms within national parks whenever it was legal to do so under the laws of the state in which the park was located, so long as the individu- al was not otherwise prohibited from doing so by federal law. Id. On December 10, 2008—six months after Masciandaro’s arrest but less than two months before his trial—the Secretary published a final version of the regulation, to take effect Janu- ary 9, 2009, which provided:

Notwithstanding any other provision in this Chapter, a person may possess, carry, and trans- port 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 other- wise prohibited by applicable Federal law.

73 Fed. Reg. 74,966, 74,971–72 (codified at 36 C.F.R. § 2.4(h)).

When 36 C.F.R. § 2.4(h) took effect, Mas- ciandaro had not yet been tried, and he promptly filed a motion with the magistrate judge to dismiss the charges against him, arguing that § 2.4(h) had effectively superseded § 2.4(b). He also argued that, in any event, § 2.4(b) violated the Second Amendment, as applied to him and facially. The magistrate judge denied the motion to dismiss, and, on February 3, 2009, found Masciandaro guilty on both counts. The judge imposed a $150 fine on the handgun violation and a $50 fine on the parking vi- olation. Masciandaro appealed only the conviction on the handgun charge to the district court.

On March 19, 2009, while Masciandaro’s ap- peal to the district court was pending, the District Court for the District of Columbia issued a prelim- inary injunction, blocking enforcement of newly promulgated § 2.4(h), because the Department of the Interior had failed to conduct the required envir- onmental impact analysis. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1

(D.D.C.2009). Responding to this ruling, Congress promptly added language to an unrelated piece of legislation, which in essence reinstated § 2.4(h) by statute. See Credit Card Accountability Responsib- ility and Disclosure Act of 2009 (“Credit CARD Act”), codified at 16 U.S.C. § 1a–7b(b). Section 512 of the Credit CARD Act provides:

The Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an indi- vidual from possessing a firearm including an as- sembled or functional firearm in any unit of the National Park System or the National Wildlife Refuge System if—

*462 (1) the individual is not otherwise prohib- ited by law from possessing the firearm; and

(2) the possession of the firearm is in compli- ance with the law of the State in which the unit of the National Park System or the National Wildlife Refuge System is located.

16 U.S.C. § 1a–7b(b).

On appeal, the district court rejected Mas- ciandaro’s argument for application of § 2.4(h) in lieu of § 2.4(b) and affirmed the magistrate judge’s ruling. United States v. Masciandaro, 648 F.Supp.2d 779 (E.D.Va.2009). Relying mainly on United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944), the court held that it was proper to try Masciandaro under the law as it exis- ted at the time of his arrest. Id. at 784–85. Address- ing the constitutionality of § 2.4(b), the court did not decide what level of scrutiny to apply but held that even applying strict scrutiny, the provision was narrowly tailored to serve the compelling govern- mental interest in public safety and thus was consti- tutional on an as-applied basis. Id. at 788–91. The court rejected Masciandaro’s facial challenge be- cause he had not “demonstrat[ed] from actual fact ” that a substantial number of instances exist in which § 2.4(b) could not be applied constitution- ally. Id. at 792–94.

Pet. App. 4a

Page 4

638 F.3d 458

(Cite as: 638 F.3d 458)

From the judgment of the district court, dated August 26, 2009, Masciandaro filed this appeal.

[1] Masciandaro contends first that he should not have been prosecuted under 36 C.F.R. § 2.4(b) because that provision was effectively superseded first by 36 C.F.R. § 2.4(h), a more permissive regu- lation making state law applicable, and then by § 512 of the Credit CARD Act, which effectively co- dified § 2.4(h). Section 2.4(h) was thus in effect when Masciandaro was tried before the magistrate judge and § 512 of the Credit CARD Act is in ef- fect now. He maintains that a court must “apply the law in effect at the time it renders its decision.” Landgraf v. USI Film Prods., 511 U.S. 244, 277, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quoting Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)).

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, 36 C.F.R. § 2.4(b) was in effect and pro- hibited such conduct. The question that arises is whether legal developments postdating his arrest undermined the government’s ability to prosecute him under § 2.4(b).

The district court applied the Supreme Court’s decision in United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944), to reject Mas- ciandaro’s argument. In Hark, the defendants viol- ated beef pricing regulations promulgated during World War II pursuant to the Emergency Price Control Act of 1942. But after the defendants com- mitted their acts and before they were arrested, the regulations were revoked. The Supreme Court non- etheless rejected the defendants’ argument that they were entitled to the benefit of the change in the law, holding that “revocation of [a] regulation d[oes] not prevent indictment and conviction for violation of its provisions at a time when it remained in force.” 320 U.S. at 536, 64 S.Ct. 359. As it explained:

The reason for the common law rule that the re- peal of a statute ends the power to prosecute for prior violations is absent in the case of a prosecu- tion for violation of a regulation issued pursuant to an *463 existing statute which expresses a continuing policy, to enforce which the regula- tion was authorized. Revocation of the regulation does not repeal the statute; and though the regula- tion 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 Ex- port Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936)) (footnote omitted). The Court held that because the Emergency Price Control Act had re- mained in effect, the fact that the beef pricing regu- lations promulgated under the Act had been re- voked did not preclude the prosecution for an of- fense that occurred while the regulations were in force.

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 … maxim- um 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, 16 U.S.C. § 3, provided the Secretary of the Interior with the power to issue regulations “necessary … for the use and management of the parks … under the jurisdic- tion of the National Parks Service.” Both statutes made it a crime to violate the regulations, and both set forth specific penalties for violations. Compare Emergency Price Control Act of 1942, § 4(a), 56 Stat. 23, 28 (“It shall be unlawful … for any person to sell or deliver any commodity … in violation of any regulation or order under section 2”), and id. § 205(a)-(b), 56 Stat. 23, 33 (authorizing fines of up to $5,000 or imprisonment for up to two years for willful violations), with 16 U.S.C. § 3 (“[A]ny viol-

Pet. App. 5a

Page 5

638 F.3d 458

(Cite as: 638 F.3d 458)

ation of any of the rules and regulations authorized by this [Act] shall be punished by a fine of not more than $500 or imprisonment for not exceeding six months, or both …”).

Masciandaro claims that Hark is distinguish- able because 16 U.S.C. § 3 does not “contain sub- stantive provisions directly restricting or prohibit- ing certain conduct,” as did the Emergency Price Control Act. This argument, however, is unpersuas- ive because it treats what are actually differences in degree as differences in kind. Both laws attach spe- cific criminal penalties to actions that violate regu- lations issued by an Executive Branch official. They differ, however, in the specificity with which they describe the offending conduct—the Emer- gency Price Control Act made it unlawful to sell or deliver commodities in violation of a regulation’s terms, as specified by the Price Administrator, while 16 U.S.C. § 3 makes it unlawful to violate a regulation adopted for the use and management of national parks, as specified by the Secretary of the Interior. Thus, both create an offense and both de- pend on implementing regulations to “call[ ] the statutory [offense] into play.” Hark, 320 U.S. at 536, 64 S.Ct. 359. We thus conclude, as did the dis- trict court, that Masciandaro’s effort to distinguish Hark falls short and that Hark is controlling.

Masciandaro suggests that Hark is also distin- guishable insofar as it depended on the continuing vitality of the underlying enabling statute. See Hark, 320 U.S. at 536, 64 S.Ct. 359 (“Revocation of [a] 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”). He claims that in this case, with the enactment of the Credit CARD Act, “Congress expressly *464 withdrew the authority to enforce the superseded [National Parks Service] regulation against Mr. Masciandaro and other citizens who are similarly situated.” He explains, the Credit CARD Act “states that the Secretary of the [Interior] (through the Park Police and local United States Attorneys’

offices) shall not ‘enforce any regulation that pro- hibits an individual from possessing a firearm in- cluding an assembled or functional firearm in any unit of the National Parks System’ if that individual is acting in conformance with state laws regulating that weapon.” Thus, he argues, while Hark applies when a regulation, but not the authorizing statute, has been revoked, it does not apply when both the regulation and the authorizing statute have been eliminated, as, he asserts, occurred here.

While it is true that the Credit CARD Act pro- hibited the Secretary of the Interior from enforcing a regulation such as § 2.4(b) in certain circum- stances, that Act did not modify or revoke 16 U.S.C. § 3, which authorized, and continues to au- thorize, the Secretary of the Interior generally to is- sue national park regulations that are enforceable by a fine or imprisonment or both. If we accept the argument that the Credit CARD Act somehow re- pealed a portion of 16 U.S.C. § 3 by implication by limiting the Secretary of the Interior’s authority, the original form of the authorizing statute would non- etheless be saved under the general savings statute, 1 U.S.C. § 109, which provides:

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 ac- tion 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 re- peal.” Landgraf, 511 U.S. at 271, 114 S.Ct. 1483; see also Yeaton v. United States, 9 U.S. (5 Cranch) 281, 283, 3 L.Ed. 101 (1809) (holding that when a criminal statute expires or is repealed, “no penalty can be enforced, nor punishment inflicted, for viol- ations of the law committed while it was in force, unless some special provision be made for that pur- pose by statute”).

Pet. App. 6a

Page 6

638 F.3d 458

(Cite as: 638 F.3d 458)

[2] Accordingly, “unless [a] repealing statute explicitly provides otherwise, the repeal of a crim- inal statute neither abates the underlying offense nor affects its attendant penalties with respect to acts committed prior to repeal.” United States v. Bradley, 455 F.2d 1181, 1190 (1st Cir.1972), aff’d 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). This principle extends to criminal laws as well as to regulations which implement them. Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 554–55, 74 S.Ct. 745, 98 L.Ed. 933 (1954) (interpreting the savings statute to “prevent the expiration of a … statute from cutting off appropriate measures to en- force the expired statute in relation to violations of it, or of regulations issued under it, occurring be- fore its expiration” (emphasis added)). Thus, even if it were the case that both the criminal regulation and its enabling act were found to have been re- pealed, the savings statute would nonetheless pre- serve the government’s authority to prosecute pre- repeal conduct covered by the regulation. Id.

While Masciandaro does argue that Congress eliminated the Secretary’s power to restrict firearm possession under 16 U.S.C. § 3 by enacting § 512 of the Credit CARD Act, he has not pointed to any language in § 512 “explicitly provid [ing],” *465 as required by Bradley, that the savings statute does not apply. Indeed, the new law makes no mention of 1 U.S.C. § 109 or existing prosecutions. Because there is no explicit language in § 512 of the Credit CARD Act avoiding application of the savings stat- ute, the savings statute’s default rule applies. See Bradley, 455 F.2d at 1190. And under that rule, the government retains the ability to prosecute previous violations of 16 U.S.C. § 3 or of any “regulations issued under” that provision, such as 36 C.F.R. § 2.4(b). Allen, 347 U.S. at 554, 74 S.Ct. 745.

In sum, we conclude that Masciandaro was properly prosecuted under 36 C.F.R. § 2.4(b), the law applicable at the time of his arrest.

III We now turn to Masciandaro’s constitutional

challenge to 36 C.F.R. § 2.4(b). Masciandaro con-

tends that the Second Amendment, as construed by the Supreme Court in its “watershed” decision in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), guaranteed to him the right to possess and carry weapons in case of confrontation and thus protected him from pro- secution under § 2.4(b) for exercising that right in a national park area. He explains that

[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 Amend- ment’s protections.

The government maintains that the holding of Heller is inapplicable here. It argues:

In Heller, the Supreme Court held that the Dis- trict of Columbia law that “totally ban[ned] hand- gun possession in the home” and prohibit[ed] rendering any lawful firearm in the house oper- able for the purpose of immediate self-defense vi- olated the Second Amendment. Because the Su- preme Court’s decision is limited to the posses- sion of firearms in the home, it does not invalid- ate the regulation at issue, which narrowly in- volves 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 ar- ticulated there. Thus, in resolving Masciandaro’s constitutional challenge, we will begin with a dis- cussion of Heller’s holding and then proceed to ad- dress, seriatim, the scope of the Second Amend-

Pet. App. 7a

Page 7

638 F.3d 458

(Cite as: 638 F.3d 458)

ment 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 law- ful regulatory measure; and the application of our conclusions to Masciandaro’s circumstances.

A The Second Amendment states, “A well regu-

lated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

Resolving the longstanding issue whether the Second Amendment guarantees an *466 individual right to keep and bear arms or a collective right to do so in connection with militia service, the Su- preme Court in Heller held, based on “the historical background of the Second Amendment,” that the Amendment guarantees the “pre-existing” “individual right to possess and carry weapons in case of confrontation.” Heller, 128 S.Ct. at 2797 (emphasis omitted). Because the right predated the Constitution, the Court looked to the historical re- cord when articulating its nature, noting that the right was secured to individuals according to “ ‘libertarian political principles,’ not as members of a fighting force,” to “protect[ ] against both public and private violence.” Id. at 2798–99. It also ob- served that throughout the country’s history, Amer- icans have valued the right not only to be able to prevent the elimination of militia, but “even more important[ly], for self-defense and hunting.” Id. at 2801.

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 fash- ion 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 pur- pose. 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 enu- merated 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 and 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, 128 S.Ct. at 2817–18 (internal quota- tion marks, footnote, and citation omitted).

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 con- cealed weapons held them to be lawful under the Second Amendment. Id. at 2816. It summarized:

Although we do not undertake an exhaustive his- torical 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 as schools and government buildings, or laws im- posing conditions and qualifications on the com-

Pet. App. 8a

Page 8

638 F.3d 458

(Cite as: 638 F.3d 458)

mercial sale of arms.

Id. at 2816–17. The Court explained in a foot- note 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 *467 scrutiny that should be applied to laws that burden those rights. It found it unnecessary to do so because the District of Columbia law under consideration would violate the Second Amendment “[u]nder any of the stand- ards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 2817.

Two years after deciding Heller, the Supreme Court revisited the Second Amendment in McDon- ald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), holding that the Second Amendment was applicable to the States by incorporation into the Fourteenth Amendment. Ex- plaining Heller further, the McDonald Court stated that “self-defense is the central component” of the individual right to keep and bear arms and that this right is “fundamental.” Id. at 3036, 3038 n. 17 (plurality opinion) (emphasis omitted). McDonald also reaffirmed that Second Amendment rights are far from absolute, reiterating that Heller had “assur[ed]” that many basic handgun regulations were presumptively lawful. In a similar vein, the McDonald Court noted that the doctrine of “incorporation does not imperil every law regulat- ing firearms.” Id. at 3047.

[3] 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 re- mains 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 regula- tion.

NIEMEYER, Circuit Judge, writing separately on

this Part III.B:

B Invoking Heller’s 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, 128 S.Ct. at 2821. Alternatively, he con- tends that if his car is found not to be his home, his arrest nonetheless violated a more general right to carry or possess a handgun outside of the home for self-defense.

I would reject Masciandaro’s argument that his car, even when he slept in it frequently, was his “home” so as to fall within the core protection ar- ticulated in Heller. In the circumstances where Masciandaro had a residence in Woodbridge, Vir- ginia, 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 es- sential to making a place a person’s home for Heller ’s core protection. I would conclude, in the circum- stances 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 im- portant part of individual freedom—one of “the fundamental rights of Englishmen.” Heller , 128 S.Ct. at 2798. It found that the right included the right to “protect[ ] [oneself] against both public and private violence,” id. at 2799 (emphasis added), thus extending the right in some form to wherever a person could become exposed to public or private violence. See also id. at 2797 (finding that the Second Amendment’s operative clause *468

Pet. App. 9a

Page 9

638 F.3d 458

(Cite as: 638 F.3d 458)

“guarantee[s] the individual right to possess and carry weapons in case of confrontation”). Because “self-defense has to take place wherever [a] person happens to be,” it follows that the right extends to public areas beyond the home. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Re- search Agenda, 56 U.C.L.A. L. Rev. 1443, 1515–18 (2009) [hereinafter “ Implementing the Right for Self–Defense ”]. Moreover, the right to keep and bear arms was found to have been understood to ex- ist not only for self-defense, but also for member- ship in a militia and for hunting, id. at 2801, neither of which is a home-bound activity. Indeed, one as- pect of the right, as historically understood, was “to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.” Id. at 2801 (emphasis added).

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, 128 S.Ct. at 2817 (emphasis added), suggesting that some form of the right ap- plies where that need is not “most acute.” Further, when the Court acknowledged that the Second Amendment right was not unlimited, it listed as ex- amples of regulations that were presumptively law- ful, those “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Id. If the Second Amendment right were confined to self-defense in the home, the Court would not have needed to express a reservation for “sensitive places” outside of the home.

What the Heller Court describes as the general preexisting right to keep and bear arms for particip- ation 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 activit- ies or needs occur, just as other Amendments apply

Pet. App. 10a

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 re- cognized. See Heller, 128 S.Ct. at 2816–17. The complex question of where it may apply outside the home, and what persons may invoke it, is, however, not one that we need to fully answer, because it ap- pears sufficiently clear that, in this case, Mas- ciandaro’s claim to self-defense—asserted by him as a law-abiding citizen sleeping in his automobile in a public parking area—does implicate the Second Amendment, albeit subject to lawful limita- tions. And any analysis of it, therefore, requires re- view of the government’s interest in regulating fire- arms through 36 C.F.R. § 2.4(b) under the appropri- ate level of scrutiny, which we now address.FN*

FN* In his opinion for the court, my good colleague concludes that we need not de- cide 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 con- fronted directly with the contention that 36 C.F.R. § 2.4(b) violated Masciandaro’s Second Amendment right to possess a fire- arm for self-defense purposes, and, having found that § 2.4(b) applies, we cannot duck the issue. See Bowers v. NCAA, 475 F.3d 524, 550 (3d Cir.2007) (observing that the court was “squarely presented with [a] constitutional question” and thus “obliged to enter the fray,” despite the “prudential concerns” expressed by Justice Brandeis’ concurrence in Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936)). Applying intermediate scrutiny to reject Masciandaro’s claim does not avoid the constitutional question—it presumes the existence of the constitutional right and conducts a constitutional analysis to defeat it. As I have written, I would acknowledge that Masciandaro’s claim, in the particular

Page 10

638 F.3d 458

(Cite as: 638 F.3d 458)

circumstances of this case, implicates the Second Amendment, leading us to reject the claim under the intermediate scrutiny standard.

Second, I believe that application of the broader Second Amendment right dis- cussed in Heller to factual settings arising outside the home involves pre- cisely 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, 430 U.S. 112, 135 n. 26, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); see United States v. Mendoza, 464 U.S. 154, 160, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). Thus, while determining when and where the Second Amendment ap- plies is every bit as complex as Judge Wilkinson suggests, I feel it both neces- sary and important to address the cir- cumstances presented here.

*469 NIEMEYER, Circuit Judge, writing for the court:

C [4] Masciandaro argues that § 2.4(b) should be

analyzed under strict scrutiny, because at the time of his arrest, he was a law-abiding citizen who was simply seeking to exercise his “fundamental” right to self-defense.

Without responding to Masciandaro’s argument directly, the government asserts that § 2.4(b) satis- fies the strict scrutiny standard, as it is narrowly tailored to advance a compelling government in- terest in public safety. In making this argument, however, we do not understand the government to be taking a specific position on the level of scrutiny to apply.

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, 128 S.Ct. at 2817, 2821, because it concluded that the District of Columbia’s

handgun ban under consideration before it “would fail constitutional muster” “[u]nder any of the standards of scrutiny [traditionally] applied to enu- merated constitutional rights,” id. at 2817–18 (emphasis added). The Court did, however, rule out a rational basis review, because that level of review “would be redundant with the separate constitution- al prohibitions on irrational laws.” Id. at 2817 n. 27. Moreover, by listing several “presumptively lawful regulatory measures,” id. at 2816–17 & n. 26, the Court provided a hint as to the types of govern- mental interests that might be sufficient to with- stand Second Amendment challenges, as well as the contexts in which those interests could be success- fully invoked.

We have held that intermediate scrutiny should be applied when reviewing a Second Amendment challenge to 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by a person convicted of a misdemeanor crime of domestic violence. United States v. Chester, 628 F.3d 673, 677 (4th Cir.2010). In Chester, officers searching Chester’s home in West Virginia uncovered a 12–gauge shotgun and a 9mm handgun, both of which Chester was prohib- ited from possessing under § 922(g)(9) because he had a prior misdemeanor conviction for domestic violence. In response to Chester’s challenge, we concluded that the scope of the Second Amendment extended to Chester’s activity in possessing fire- arms in the home for self-defense and that the bur- den on possession of the firearms imposed by § 922(g)(9) was subject to intermediate scrutiny. We explained:

Although Chester asserts his right to possess a firearm in his home for the purpose of self- defense, we believe his claim 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*470 of Chester’s criminal history as a domestic violence misdemeanant. Accordingly, we conclude that in- termediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated per-

Pet. App. 11a

Page 11

638 F.3d 458

(Cite as: 638 F.3d 458)

sons.

Id. at 682–83; see also United States v. Marz- zarella, 614 F.3d 85, 97 (3d Cir.2010) (applying in- termediate scrutiny under the Second Amendment to 18 U.S.C. § 922(k), which prohibits the posses- sion of firearms with obliterated serial numbers).

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 oth- er 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, 621 F.3d 681, 683 (7th Cir.2010). Indeed, as has been the experience under the First Amend- ment, we might expect that courts will employ dif- ferent types of scrutiny in assessing burdens on Second Amendment rights, depending on the char- acter of the Second Amendment question presented. Under such an approach, we would take into ac- count the nature of a person’s Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government’s justifications for the regulation. See United States v. Skoien, 587 F.3d 803, 809 (7th Cir.2009), vacated, 614 F.3d 638 (7th Cir.2010) (en banc), pet. for cert. filed, No. 10–7005 (U.S. Oct. 12, 2010). As we stated in Chester:

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 bur- den on the core Second Amendment right of armed self-defense should require strong justific- ation. But less severe burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate the central self-defense con- cern of the Second Amendment, may be more easily justified.

Chester, 628 F.3d at 682 (quoting Skoien, 587 F.3d at 813–14).

As we observe that any law regulating the con- tent of speech is subject to strict scrutiny, see, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), we assume that any law that would burden the “fundamental,” core right of self- defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move out- side the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense. See Heller, 128 S.Ct. at 2816 (noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues”). Since historical meaning en- joys a privileged interpretative role in the Second Amendment context, see id. at 2816; Skoien, 587 F.3d at 809, this longstanding out- of-the-home/in-the-home distinction bears directly on the level of scrutiny applicable. Indeed, one of the principal cases relied upon in Heller upheld a state concealed carry ban after applying review of a decidedly less-than-strict nature. See Nunn v. State, 1 Ga. 243, 249 (1846) (“But a law which is merely intended to promote personal security, and to put down lawless aggression and violence, and to this end prohibits the wearing of certain weapons in such a manner as *471 is calculated to exert an un- happy influence upon the moral feelings of the wearer, by making him less regardful of the person- al security of others, does not come in collision with the Constitution”).

Were we to require strict scrutiny in circum- stances such as those presented here, we would likely foreclose an extraordinary number of regulat- ory measures, thus handcuffing lawmakers’ ability to “prevent[ ] armed mayhem” in public places, see Skoien, 614 F.3d at 642, and depriving them of “a variety of tools for combating that problem,” Heller, 128 S.Ct. at 2822. While we find the applic-

Pet. App. 12a

Page 12

638 F.3d 458

(Cite as: 638 F.3d 458)

ation of strict scrutiny important to protect the core right of the self-defense of a law-abiding citizen in his home (“where the need for defense of self, fam- ily, and property is most acute,” Heller, 128 S.Ct. at 2817), we conclude that a lesser showing is neces- sary with respect to laws that burden the right to keep and bear arms outside of the home. Accord- ingly, we hold that 36 C.F.R. § 2.4(b) will survive Masciandaro’s as-applied challenge if it satisfies in- termediate scrutiny— i.e., if the government can demonstrate that § 2.4(b) is reasonably adapted to a substantial governmental interest. See Chester, 628 F.3d at 683; cf. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (applying intermediate scrutiny to content- neutral time, place, and manner restrictions on speech); Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (applying intermediate scrutiny to commercial speech in light of its “subordinate position in the scale of First Amendment values”).

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 36 C.F.R. § 2.4(b) is a law regulating firearms in “sensitive places,” as identified in Heller, 128 S.Ct. at 2816–17, and therefore is presumptively constitu- tional, see id. at 2817 n. 26. Arguing that Dainger- field Island is a sensitive place, the government states 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 ap- purtenant parking lots, where courts have found firearms restrictions to be presumptively reason- able. 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 fre- quented 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.

Masciandaro 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 su- perseded [National Park Service] weapons regu- lation, is a public road and a major traffic thor- oughfare 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 and *472 remote forests and parks across the United States. Those regulations reflect the [Department of Interior's] determina- tion 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 ex- plained that “nothing in [36 C.F.R. § 2.4] shall be construed to authorize concealed carry of firearms in any Federal facility or Federal court facility as

Pet. App. 13a

Page 13

638 F.3d 458

(Cite as: 638 F.3d 458)

defined in 18 U.S.C. § 930.” 73 Fed. Reg. at 74,971 (emphasis added).

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 128 S.Ct. at 2799, 2816. For example, it stated:

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 sensit- ive places such as schools and government build- ings.

Id. at 2816–17 (emphasis added). Because of the relation between the first statement and the ex- amples, 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 ques- tions about the scope of the Second Amendment and the scrutiny to be given to government regula- tions 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 limit-

ations, the Court cautioned that Heller should not be read “to cast doubt on longstanding prohibi- tions” 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*473 on the right to bear arms or did not violate the Second Amendment for some oth- er reason.

Chester, 628 F.3d at 679. In Marzzarella, the Third Circuit labored over the same ambiguity:

We recognize the phrase “presumptively lawful” could have different meanings under newly enun- ciated 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 stand- ard of scrutiny.

Marzzarella, 614 F.3d at 91.

We need not, however, resolve the ambiguity in the “sensitive places” language in this case, be- cause even if Daingerfield Island is not a sensitive place, as Masciandaro argues, 36 C.F.R. § 2.4(b) still passes constitutional muster under the interme- diate scrutiny standard.

E [5] 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 Dainger- field Island. Although the government’s interest

Pet. App. 14a

Page 14

638 F.3d 458

(Cite as: 638 F.3d 458)

need not be “compelling” under intermediate scru- tiny, cases have sometimes described the govern- ment’s interest in public safety in that fashion. See Schenck v. Pro–Choice Network, 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (referring to the “significant governmental interest in public safety”); United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (commenting on the “Federal Government’s com- pelling interests in public safety”). The govern- ment, after all, is invested with “plenary power” to protect the public from danger on federal lands un- der the Property Clause. See U.S. Const. art. IV, § 3, cl. 2 (giving Congress the power to “make all needful Rules and Regulations respecting the Ter- ritory or other Property belonging to the United States”); Utah Div. of State Lands v. United States, 482 U.S. 193, 201, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987); Camfield v. United States, 167 U.S. 518, 525, 17 S.Ct. 864, 42 L.Ed. 260 (1897); see also United States v. Dorosan, 350 Fed.Appx. 874, 875 (5th Cir.2009) (per curiam) (noting that U.S. Postal Service is authorized under the Property Clause to exclude firearms from its property); Volokh, Imple- menting the Right for Self–Defense, 56 U.C.L.A. L. Rev. at 1529–33. As the district court noted, Daingerfield Island is a national park area where large numbers of people, including children, con- gregate for recreation. See Masciandaro, 648 F.Supp.2d at 790. Such circumstances justify reas- onable measures to secure public safety.

We also conclude that § 2.4(b)’s narrow prohib- ition is reasonably adapted to that substantial gov- ernmental interest. Under § 2.4(b), national parks patrons are prohibited from possessing loaded fire- arms, and only then within their motor vehicles. 36 C.F.R. § 2.4(b) (“Carrying or possessing a loaded weapon in a motor vehicle, vessel, or other mode of transportation is prohibited”). We have no occasion in this case to address a regulation of unloaded fire- arms. Loaded firearms are surely more dangerous than unloaded firearms, as they could fire accident- ally or be fired before a potential victim has the op- portunity to flee. The Secretary could have reason-

ably concluded that, when concealed within a motor vehicle, a loaded weapon becomes even more dan- gerous. In this respect, § 2.4(b) is analogous to the litany of state concealed carry prohibitions specific- ally*474 identified as valid in Heller. See 128 S.Ct. at 2816–17.

By permitting park patrons to carry unloaded firearms within their vehicles, § 2.4(b) leaves largely intact the right to “possess and carry weapons in case of confrontation.” Heller, 128 S.Ct. at 2797. While it is true that the need to load a firearm impinges on the need for armed self-de- fense, see Volokh, Implementing the Right for Self–Defense, 56 U.C.L.A. L. Rev. at 1518–19, in- termediate scrutiny does not require that a regula- tion be the least intrusive means of achieving the relevant government objective, or that there be no burden whatsoever on the individual right in ques- tion. See United States v. Baker, 45 F.3d 837, 847 (4th Cir.1995). Moreover, because the United States Park Police patrol Daingerfield Island, the Secretary could conclude that the need for armed self-defense is less acute there than in the context of one’s home.

Accordingly, we hold that, on Masciandaro’s as-applied challenge under the Second Amendment, § 2.4(b) satisfies the intermediate scrutiny standard.

IV In view of our determination that 36 C.F.R. §

2.4(b) is constitutional under the Second Amend- ment as applied to Masciandaro, a priori we reject his facial overbreath challenge to § 2.4(b).

[6] Without entertaining the novel notion that an overbreath challenge could be recognized “outside the limited context of the First Amend- ment,” Salerno, 481 U.S. at 745, 107 S.Ct. 2095, we conclude that a person, such as Masciandaro, to whom a statute was constitutionally applied, “will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitution- ally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610,

Pet. App. 15a

Page 15

638 F.3d 458

(Cite as: 638 F.3d 458)

93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This conclu- sion “reflect[s] the conviction that under our consti- tutional system courts are not roving commissions assigned to pass judgment on the validity of the Na- tion’s laws.” Id. at 610–11, 93 S.Ct. 2908; see also Gonzales v. Carhart, 550 U.S. 124, 167–68, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (“It is neither our obligation nor within our traditional institution- al role to resolve questions of constitutionality with respect to each potential situation that might devel- op…. For this reason, ‘[a]s-applied challenges are the basic building blocks of constitutional adjudica- tion’ ” (quoting Richard H. Fallon, Jr., As–Applied and Facial Challenges and Third–Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000))); Skoien, 614 F.3d at 645 (“[a] person to whom a statute properly applies [cannot] obtain relief based on arguments that a differently situated person might present”). Accordingly, we reject his facial challenge.

***

Because we conclude that 36 C.F.R. § 2.4(b) was properly applied to Masciandaro’s conduct and that § 2.4(b) is constitutional as applied to the cir- cumstances in this case, we affirm the judgment of the district court.

AFFIRMED

WILKINSON, Circuit Judge, with whom DUFFY, Senior District Judge, joins, writing for the court as to Part III.B:

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 out- side the home.

*475 This case underscores the dilemma faced by lower courts in the post- Heller world: how far to push Heller beyond its undisputed core holding. On the question of Heller’s applicability outside the home environment, we think it prudent to await dir- ection from the Court itself. See Williams v. State, 417 Md. 479, 10 A.3d 1167, 1177 (2011) (“If the

Supreme Court, in [ McDonald's ] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”); see also Sims v. United States, 963 A.2d 147, 150 (D.C.2008).

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 num- ber 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, Imple- menting the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Re- search Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litiga- tion over schools, airports, parks, public thorough- fares, and various additional government facilities. And even that may not address the place of any right in a private facility where a public officer ef- fects 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 regu- lation.

The trend toward constitutional avoidance seems, finally, to be taking hold. Ashwander, at long last, is back. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The seminal case seems to be Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), which cut back on Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), and relieved the circuit courts of the need and burden of deciding constitutional questions in cases that could be resolved on nar-

Pet. App. 16a

Page 16

638 F.3d 458

(Cite as: 638 F.3d 458)

rower grounds. Just as the qualified immunity in- quiry in that case could assume arguendo the viola- tion of a constitutional right, so too can the applica- tion of intermediate scrutiny in this case assume ar- guendo the existence of a right. Courts take this ap- proach routinely in harmless error determinations as well.

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 busi- ness. We do not wish to be even minutely respons- ible for some unspeakably tragic act of mayhem be- cause in the peace of our judicial chambers we mis- calculated as to Second Amendment rights. It is not far-fetched to think the *476 Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square.

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.

C.A.4 (Va.),2011. U.S. v. Masciandaro 638 F.3d 458

END OF DOCUMENT

Pet. App. 17a

Page 17

harm a victim.’’ Begay, 128 S.Ct. at 1586. It is the government’s burden to prove that defendant qualifies under the ACCA and the record does simply not support a decision that defendant’s convictions con- stitute violent felonies.15 See Roseboro, 551 F.3d at 242–43.

Because this court does not find the consultation of additional materials to be persuasive at all, this court concludes that defendant’s convictions for failure to stop for a blue light do not qualify as violent felonies under the ACCA.

As a final note, this court is particularly concerned about the discrepancy in sen- tencing for defendants who are guilty of the same exact offense. In certain coun- ties in South Carolina, the word ‘‘willfully’’ is inserted as a matter of course in an indictment.16 By contrast, other counties only charge the language of the statute in an indictment. This court has no way of distinguishing, without looking to the facts behind the conviction, whether it actually involved intentional conduct, let alone vio- lent and aggressive conduct.

V. CONCLUSION

For the reasons set forth above, this court concludes it is bound by Supreme Court precedent to apply the categorical approach to the statute in question. Moreover, the court does not believe that the South Carolina failure to stop for a blue light statute, as written, qualifies as a violent felony under the ACCA. However, in the unlikely event the modified categori- cal approach is the correct approach to apply, this court finds that the government

15. Another court in this district recently held the government failed to meet its burden to prove the defendant’s convictions qualified as ‘‘violent felonies.’’ See United States v. Wright, Cr. No. 9:07–cr–418 (D.S.C. July 29, 2009) (Blatt, Jr., J.). In so holding, the court observed that with only the indictment to consider, it was unlikely that the government

has failed to meet its burden because the indictment alone is not sufficient to estab- lish that defendant’s prior convictions for FTSBL constitute violent felonies under the ACCA.

AND IT IS SO ORDERED.

UNITED STATES of America v. Sean MASCIANDARO. No. 1:09cr238.

United States District Court, E.D. Virginia, Alexandria Division.

Aug. 26, 2009.

Background: Following conviction by United States Magistrate Judge for pos- session of loaded weapon in motor vehicle in National Park, defendant sought rever- sal.

Holdings: The District Court, T.S. Ellis, III, J., held that:

(1) exception to regulation prohibiting the possession of loaded weapons in motor vehicles on National Park land did not apply to defendant;

(2) defendant’s conviction did not violate his Second Amendment right to keep and bear arms;

could ever meet its burden of a preponder- ance of the evidence. Id.

16. This court has learned in researching this issue that the word ‘‘intentionally’’ is included in Richland County but not in adjoining Lex- ington County. This is also true in Charles- ton County where ‘‘intentionally’’ is included, but not in adjoining Dorchester County.

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

779

Pet. App. 18a

780

648 FEDERAL SUPPLEMENT, 2d SERIES

(3) federal regulation criminalizing the possession of a loaded weapon in a motor vehicle on National Park land was not facially unconstitutional as vio- lating the Second Amendment; and

(4) there was no abuse of discretion in not granting post-sentencing request for expungement.

Affirmed.

1. United States Magistrates O26, 27 An appellate review conducted by a district court after a bench trial before a magistrate judge is not a trial de novo; rather, the district court utilizes the same standards of review applied by a court of appeals in assessing a district court convic-

compelling and regulation was narrowly tailored and substantially related to fur- thering public safety in National Parks since it was limited to individuals who carried loaded firearm in motor vehicle on National Park land. U.S.C.A. Const. Amend. 2; 36 C.F.R. § 2.4(b).

tion.

Constitutional Law O1054 Intermediate scrutiny requires that

2. Weapons O3 Exception to regulation prohibiting

the challenged statute or regulation be substantially related to an important gov- ernmental objective to survive a constitu- tional challenge.

the possession of loaded weapons in motor vehicles on National Park land, for posses- sion in accordance with laws of state in which park was located, which was enacted after defendant’s arrest but before his tri- al, did not apply to defendant, since en- abling statute did not change between de- fendant’s offense conduct and time of his trial. 36 C.F.R. § 2.4(h); National Park Service Organic Act, § 3, 16 U.S.C.A. § 3.

7. Administrative Law and Procedure O390.1

3. Constitutional Law O4582 Criminal Law O13(1)

undue burden analysis where it does not have the purpose or effect of placing a substantial obstacle in the path of the indi- vidual seeking to engage in constitutionally protected conduct.

Where a defendant is convicted of a general charge that is framed in the words of the statute, a constitutional challenge to that conviction must focus on the statute’s elements, as conviction upon a charge not made would be sheer denial of due pro- cess. U.S.C.A. Const.Amends. 5, 14.

8. Constitutional Law O656 A party ordinarily can only succeed in

4. Weapons O3 Defendant’s conviction for possession

a facial challenge by establishing that no set of circumstances exists under which the law would be valid, i.e., that the law is unconstitutional in all of its applications.

of loaded weapon in motor vehicle on Na- tional Park land did not violate his Second Amendment right to keep and bear arms; governmental interest in public safety in National Parks was both important and

9. Weapons O3 Federal regulation criminalizing the

Pet. App. 19a

5. Administrative Law and Procedure O390.1

Constitutional Law O1053 Strict scrutiny requires that a statute

or regulation be narrowly tailored to serve a compelling governmental interest in or- der to survive a constitutional challenge.

6. Administrative Law and Procedure O390.1

Constitutional Law O1050 A statute or regulation survives an

possession of a loaded weapon in a motor vehicle on National Park land was not facially unconstitutional as violating the Second Amendment; law had at least some

constitutional applications and nothing in- dicated that a substantial number of in- stances existed in which regulation could not be applied constitutionally. U.S.C.A. Const.Amend. 2; 36 C.F.R. § 2.4(b).

Appellant, Sean Masciandaro, seeks re- versal of his conviction by a United States Magistrate Judge of possession of a loaded weapon in a motor vehicle in a National Park, in violation of 36 C.F.R. § 2.4(b) (2007) and 16 U.S.C. § 3. Specifically, Mas- ciandaro argues

(i) that the Magistrate Judge erred by applying the regulation in force at the time of the offense conduct, rath- er than the later-amended regulation in force at the time of trial and sen- tencing;

(ii) that the Magistrate Judge erred in rejecting Masciandaro’s as-applied and facial Second Amendment chal- lenges to the regulation, in light of the Supreme Court’s decision in Dis- trict of Columbia v. Heller, 554 U.S. ––––, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); and

(iii) that the Magistrate Judge erred in rejecting Masciandaro’s post-sen- tencing request for expungement of his conviction.

For the reasons that follow, these argu- ments fail and the judgment of conviction must be affirmed.

On the morning of June 5, 2008, United States Park Police (‘‘USPP’’) Sergeant Kenneth Fornshill was on patrol duty in the area surrounding Daingerfield Island, a National Park Service (‘‘NPS’’) property located appurtenant to and east of the George Washington Memorial Parkway in Northern Virginia.1 At approximately 10:00 a.m., Sergeant Fornshill, who was in a marked patrol car, entered the Dainger- field Island gravel parking lot and ob-

tional Airport and due north of Old Town Alexandria, Virginia.

10. Statutes O64(1) Where a law has at least some consti-

tutional applications, a facial challenge to that law ordinarily succeeds only where the challenging party demonstrates that any unconstitutional applications of the law are not severable as a matter of statutory construction; this severability inquiry is largely a question of legislative intent, but the presumption is in favor of severability.

11. Criminal Law O1226(3.1) Courts have inherent equitable power

to order the expungement of criminal rec- ords, but such power is of exceedingly narrow scope.

12. Criminal Law O1226(3.1) A court’s equitable expungement pow-

er is to be reserved only for extreme and compelling circumstances, such as when necessary to remedy the denial of an indi- vidual’s constitutional rights, or when the government concedes the defendant’s inno- cence.

13. Criminal Law O1226(3.1) Even if magistrate judge had discre-

tion to grant defendant’s post-sentencing request for expungement of conviction, there was no abuse of discretion in not granting the request, where conviction was constitutionally valid and upheld.

Rosie Haney, United States Attorney’s Office, Alexandria, VA, for Plaintiff.

Rachel Sarah Martin, Office of the Fed- eral Public Defender, Alexandria, VA, for Defendant.

1. Daingerfield Island, which is not an island, is located due south of Ronald Reagan Na-

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

781

Pet. App. 20a

782

648 FEDERAL SUPPLEMENT, 2d SERIES

served an illegally parked Toyota hatch- back.2 After parking next to the vehicle and exiting his patrol car, Sergeant Forns- hill approached the Toyota and noticed two individuals asleep inside, namely (i) a man, later identified to be Masciandaro, who was asleep in the driver’s seat; and (ii) a woman, later identified to be Mascianda- ro’s girlfriend, asleep in the front passen- ger seat. Sergeant Fornshill then awak- ened Masciandaro and the passenger by tapping on the driver’s side window and asked Masciandaro, the owner of the vehi- cle, to produce his driver’s license. Mas- ciandaro reached behind the reclined pas- senger seat and pulled a latch on the back seat, giving him access to the vehicle’s trunk. He then retrieved a messenger bag from the trunk and placed it on the back seat, which was obscured by the vehi- cle’s tinted rear windows. After removing his wallet from the bag, Masciandaro, who had remained in the driver’s seat, pro- duced his Virginia driver’s license.

As Masciandaro was retrieving his driv- er’s license, Sergeant Fornshill observed a large knife in plain view protruding from under the vehicle’s driver’s seat. This ob- servation prompted Sergeant Fornshill to direct Masciandaro to step out of the vehi- cle, and to inquire of Masciandaro whether there were other weapons in the vehicle. In response, Masciandaro said that he had a loaded handgun in the messenger bag from which he had obtained his wallet. Sergeant Fornshill then handcuffed both Masciandaro and the female passenger. After a second officer arrived, Sergeant Fornshill searched the vehicle and discov- ered Masciandaro’s Kahr P9 9mm semiau- tomatic handgun in a gun case inside the messenger bag. Sergeant Fornshill con- firmed that the firearm was loaded; six rounds of ammunition were in the weap- on’s magazine and a seventh was in the

2. More specifically, the Toyota was improper- ly parked parallel to the edge of the parking

weapon’s chamber. Sergeant Fornshill then arrested Masciandaro on two charges: (i) unlawful possession of a load- ed firearm in a motor vehicle on NPS land, in violation of § 2.4(b); and (ii) failure to comply with a traffic control device, in violation of 36 C.F.R. § 4.12 (2007). Mas- ciandaro was then taken to the nearby USPP station, where he produced an ex- pired Virginia concealed-carry permit and was processed and released pending trial.

Prior to trial before a United States Magistrate Judge, Masciandaro filed two motions to dismiss the firearm charge, ar- guing (i) that § 2.4 had been amended after his arrest to provide an exception decriminalizing his offense conduct; and (ii) that § 2.4(b), as it existed at the time of the offense conduct, is unconstitutional under the Second Amendment, both facial- ly and as applied to him. On January 14, 2009, Masciandaro appeared, with counsel, before the Magistrate Judge for trial and a hearing on his motions to dismiss. The Magistrate Judge received evidence and heard the live testimony of Masciandaro and Sergeant Fornshill. Following oral argument, the Magistrate Judge took the case under advisement.

Thereafter, on February 3, 2009, the Magistrate Judge issued an Order denying Masciandaro’s motions to dismiss and find- ing him guilty of both the traffic violation and firearm charge. In an accompanying Memorandum Opinion setting forth the reasons for denying the motions to dis- miss, the Magistrate Judge ruled (i) that because Masciandaro must be adjudicated under the regulation in force at the time of his offense conduct, and not the subse- quently amended regulation, any exception set forth in a post-offense amendment to § 2.4 is inapplicable; and (ii) that § 2.4(b), both facially and as applied to Mascianda-

lot in an area clearly marked as front-end parking only.

Pet. App. 21a

ro, does not violate the Second Amend- ment right to keep and bear arms as that right was interpreted by the Supreme Court in Heller.3 Thereafter, on March 10, 2009, Masciandaro appeared for sen- tencing, and the Magistrate Judge im- posed a $50 fine on the § 4.12 sign viola- tion and a $150 fine and a $10 special assessment on the § 2.4(b) firearm viola- tion. Following imposition of sentence, Masciandaro orally moved for expunge- ment of the firearm conviction, arguing that ‘‘extenuating circumstances, including the fact that the regulation has changed,’’ warranted exercise of the Magistrate Judge’s equitable expungement power. Sentencing Tr. 4. The Magistrate Judge denied the request, noting that:

I understand what you are saying. I don’t think I can get into that business. I think that the rules are clear here, that the law is clear here and that it still applies. And I took that into consider- ation, frankly, I think, in the fine. But I don’t feel that’s appropriate given the case law. So, I am sorry, that is denied.

Id. at 4–5. On March 24, 2009, Masciandaro filed a

timely notice of appeal of the firearm con- viction, pursuant to Rule 58(g)(2)(B), Fed. R.Crim.P. Following an order granting the parties’ joint motion for an extension of time, Masciandaro filed his opening brief on June 19, 2009, arguing (i) that the Magistrate Judge erred in denying Mas- ciandaro’s request to apply the amended version of § 2.4 in force at the time of trial and sentencing; (ii) that the Magistrate Judge erred in denying Masciandaro’s as- applied and facial Second Amendment challenges to § 2.4(b)’s prohibition on load-

3. In the course of the January 14 oral argu- ment, Masciandaro also moved orally to dis- miss the firearm charge on the ground that the government failed to prove, as he con- tends was required, that the firearm was operable at the time of the arrest. The

ed weapons in motor vehicles on National Park land; and (iii) that the Magistrate Judge erred in refusing to exercise juris- diction over Masciandaro’s post-sentencing expungement request. On July 31, 2009, the parties appeared, by counsel, for oral argument. By Order issued that same day, the appeal was taken under advise- ment, and the parties were directed to submit supplemental briefs. The parties complied, and Masciandaro’s appeal is now ripe for disposition.

II.

[1] Jurisdiction over Masciandaro’s ap- peal derives from 18 U.S.C. § 3402, and original jurisdiction below was proper un- der 18 U.S.C. § 3401(a). Importantly, ‘‘[a]n appellate review conducted by a dis- trict court after a bench trial before a magistrate judge is not a trial de novo; rather, the district court utilizes the same standards of review applied by a court of appeals in assessing a district court convic- tion.’’ United States v. Bursey, 416 F.3d 301, 305 (4th Cir.2005) (citing Rule 58(g)(2)(D), Fed.R.Crim.P.); see also Unit- ed States v. Steinert, 470 F.Supp.2d 627, 630 (E.D.Va.2007) (same). With respect to Masciandaro’s first two arguments, which were preserved below and raise purely legal issues regarding the denial of his motions to dismiss, review is de novo. See Bursey, 416 F.3d at 306. Review of the Magistrate Judge’s denial of Mascianda- ro’s post-sentencing expungement request is for abuse of discretion. See Hodge v. Jones, 31 F.3d 157, 166 (4th Cir.1994) (not- ing that ‘‘[e]xpunction TTT is a discretion- ary function of the court, rarely utilized absent extreme circumstances’’).

Magistrate Judge denied this motion in the February 3 Opinion, ruling that neither the regulation, nor the definition of ‘‘weapon’’ set forth in 36 C.F.R. § 1.4 (2007), required such a showing. Masciandaro has not ap- pealed that ruling here.

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

783

Pet. App. 22a

784

648 FEDERAL SUPPLEMENT, 2d SERIES

III.

trial and sentencing. That exception pro- vides that

[n]otwithstanding any other provision in this Chapter [providing for NPS regula- tions], a person may possess, carry, and transport concealed, loaded, and opera- ble 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 oth- erwise prohibited by applicable Federal law.

§ 2.4(h). Masciandaro argues that because he was not in violation of the applicable Virginia firearm regulations at the time of his arrest, the exception set forth in § 2.4(h) decriminalizes his conduct.

Masciandaro’s arguments in this regard fail, however, as it is clear that with re- spect to federal criminal regulations pro- mulgated under federal enabling statutes, the regulation in effect at the time of the alleged offense conduct applies absent an express retroactivity statement to the con- trary in the regulation’s amendment or its enabling statute. The Supreme Court es- sentially disposed of this issue more than sixty-five years ago in United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944). There, the Supreme Court held that ‘‘revocation of [a] regulation d[oes] not prevent indictment and convic- tion for violation of its provisions at a time when it remained in force’’ because ‘‘[r]ev- ocation of [a criminal] regulation does not repeal the [regulation’s enabling] statute.’’ Id. at 536, 64 S.Ct. 359. This follows from the fact that although a ‘‘regulation calls the [enabling statute’s] statutory penalties into play, the statute, not the regulation, creates the offense and imposes punish- ment for its violation.’’ Id. Here, § 2.4(b)’s enabling statute, 16 U.S.C. § 3,

used as shooting platforms.

Masciandaro’s appeal presents three questions. First, it is necessary to deter- mine whether Masciandaro was entitled to the benefit of an exception set forth in an amended regulation in effect at the time of trial and sentencing but not at the time of the offense conduct. Second, assuming the Magistrate Judge correctly held that only the regulation in force at the time of the offense conduct controls, it is next necessary to determine whether that regu- lation, either as applied to Masciandaro’s offense conduct, or on its face is unconsti- tutional under the Second Amendment. And finally, assuming that Masciandaro was constitutionally convicted under the appropriate regulation, it is necessary to determine whether the Magistrate Judge’s rejection of Masciandaro’s post-sentencing expungement request constituted an abuse of discretion.

Each of these questions is separately addressed.

A. Applicable Regulation

[2] Masciandaro’s first argument, dis- tilled to its essence, is that he was entitled to the benefit of an exception to § 2.4(b)’s general prohibition on possession of loaded weapons in motor vehicles on National Park land, which exception was not in force at the time of his offense conduct. In this regard, Masciandaro was convicted of violating § 2.4(b), which prohibits ‘‘[c]ar- rying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation’’ on National Park land.4 The exception Masciandaro contends should have been applied at his trial is set forth in 36 C.F.R. § 2.4(h) (2008), which went into effect on January 9, 2009, and was in force at the time of Masciandaro’s

4. Section 2.4(b) includes an exception, not applicable here, for nonmoving vehicles being

Pet. App. 23a

did not change between Masciandaro’s of- fense conduct and the time of his trial. Nor does that enabling statute or § 2.4(b) contain any express retroactivity state- ment excepting the regulation at issue from the rule set forth in Hark. According- ly, Masciandaro was not entitled to the

offense conduct to establish a more strin- gent standard. See Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)(quoting Beazell v. Ohio, 269 U.S. 167, 169–70, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). In addition, where, as here, a regulation is amended to become more le- nient after a defendant’s alleged offense conduct, the government is free to elect not to prosecute or to prosecute under the new, more lenient standard. Mascianda- ro’s argument that he is entitled to such leniency, however, is precluded by Hark ’s clear holding.6 Accordingly, the Magis- trate Judge’s application of the regulation in effect at the time of Masciandaro’s of- fense conduct must be affirmed.7

between January 9, 2009, and March 19, 2009; (iii) between March 19, 2009, and Feb- ruary 22, 2010; and (iv) after February 22, 2010. Hark and the operation of § 109 sensi- bly avoid this anomaly.

7. Even assuming, arguendo, that Masciandaro had been entitled to § 2.4(h)’s exception, it is not at all clear that his conduct was in com- pliance with the applicable Virginia statute, Va.Code § 18.2–308(A), which prohibits car- rying a concealed firearm ‘‘about [the] per- son’’ without a permit. To the contrary, a brief review of Virginia case law suggests that Masciandaro, whose concealed-carry permit had expired, carried the firearm at issue in this case ‘‘about his person’’ and in a con- cealed manner when he held the messenger bag (in which the firearm was hidden) in the backseat of his vehicle. See, e.g., Schaaf v. Commonwealth, 220 Va. 429, 432, 258 S.E.2d 574 (1979) (concealed firearm carried in a handbag is ‘‘about the person’’); Leith v. Commonwealth, 17 Va.App. 620, 621–22, 440 S.E.2d 152 (1994) (concealed firearm located in locked console of automobile is ‘‘about the person’’ because it is ‘‘close to the carrier’’ and ‘‘readily accessible’’). The cases relied on by Masciandaro in this regard appear ei- ther to be factually distinguishable or to have been overruled. See, e.g., Pruitt v. Common- wealth, 274 Va. 382, 389, 650 S.E.2d 684 (2007) (firearm placed by defendant between front seats of vehicle as he exited following an accident was not ‘‘about his person’’ because ‘‘once [defendant] exited the vehicle and closed the door, the [firearm] was no longer accessible to him so as to afford ‘prompt and

benefit of § 2.4(b).

§ 2.4(h)’s

amendment to

This result is both sensible and fair, as Masciandaro’s conduct was clearly pro- scribed at the time he engaged in it.5 Of course, it would be neither fair, nor consti- tutional to apply a regulation or statute that changed after a defendant’s alleged

5. In this respect, it is worth noting that the general federal savings statute, 1 U.S.C. § 109, provides that repeal of a federal crimi- nal statute (or partial repeal by amendment) does not preclude prosecution under the prior statute for offense conduct occurring before the statutory change, absent an express retro- activity statement to the contrary. Section 109 reversed the common-law rule, which required application of a statute as it existed at the time of trial, rather than the version existing at the time of the offense conduct. Hark, which issued prior to the enactment of § 109, essentially anticipates § 109’s reversal of the common-law rule and applies § 109’s underlying principle to regulations. See Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 554– 55, 74 S.Ct. 745, 98 L.Ed. 933 (1954). In- deed, there is no reason in principle to treat a statute and a regulation promulgated pursu- ant to a statute disparately in this regard.

6. It is worth noting that application of the amended regulation might be problematic, as nine days after Masciandaro’s sentencing, a D.C. federal district court issued a prelimi- nary injunction against application of § 2.4(h). See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1 (D.D.C. 2009). Just over two months later, Congress passed, and the President signed, a statute codifying the since-enjoined exception. See Pub.L. No. 111–49, Title V, § 512, 123 Stat. 1735, 1764 (May 22, 2009) (codified at 16 U.S.C. § 1a–7b) (effective February 22, 2010). Thus, Masciandaro’s argument, if accepted, would lead to application of different statuto- ry or regulatory provisions based on whether he went to trial (i) before January 9, 2009; (ii)

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

785

Pet. App. 24a

786 B. Second Amendment Challenge

Masciandaro next argues that the Mag- istrate Judge erred in denying his as-ap- plied and facial Second Amendment chal- lenges. More specifically, Masciandaro contends (i) that application of § 2.4(b) to him violates his Second Amendment right to keep and bear arms, as that right was announced by the Supreme Court in Hel- ler; and (ii) that even assuming his as- applied challenge fails, § 2.4(b) is unconsti- tutionally overbroad on its face. Where, as here, a party brings both as-applied and facial constitutional challenges, it is appro- priate to determine first whether the law is constitutional as applied to the challeng- ing party’s conduct, and then only if the as-applied challenge fails, to determine whether it is necessary to consider the facial challenge. This is so ‘‘for reasons relating both to the proper functioning of courts and to their efficiency,’’ as address- ing facial challenges unnecessarily ‘‘would convert use of the overbreadth doctrine from a necessary means of vindicating the plaintiff’s own right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws.’’ Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502–04, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). In addition, ‘‘the overbreadth question is ordi-

immediate use’ ’’); Sutherland v. Common- wealth, 109 Va. 834, 65 S.E. 15 (1909) (hold- ing that a firearm ‘‘in a scabbard and in a pair of saddlebags’’ is not ‘‘readily accessible for use or surprise if desired’’), overruled in part by Schaaf, 220 Va. at 431, 432, 258 S.E.2d 574 (observing that ‘‘Sutherland was decided seventy years ago, and it is doubtful that this court in 1909 envisioned the modern day handbag’’ and holding application of Sutherland to such situations ‘‘would render [§ 18.2–308(A) ] useless’’). In any event, the Magistrate Judge explicitly declined to ad- dress this issue at trial, holding that § 2.4(h)’s

648 FEDERAL SUPPLEMENT, 2d SERIES

Pet. App. 25a

narily more difficult to resolve than the as- applied, since it requires TTT consideration of many more applications than those im- mediately before the court.’’ Fox, 492 U.S. at 485, 109 S.Ct. 3028 (quoting Broad- rick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).8 Thus, Masciandaro’s as-applied challenge is ad- dressed first. Before doing so, however, it is necessary to summarize briefly Heller ’s narrow holding and dicta, in which the Supreme Court—for the first time—held that the Second Amendment protects an individual’s right to keep and bear arms in certain circumstances.

(1) Heller’s Holding

The Second Amendment provides: ‘‘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.’’ U.S. Const. amend. II. Just over a year ago, the Supreme Court in Heller interpreted this language to ‘‘guarantee [an] individual right to possess and carry weapons in case of confronta- tion.’’ 128 S.Ct. at 2797. Of course, Hel- ler ’s holding was much narrower. More specifically, the Supreme Court in Heller addressed three District of Columbia weapons laws, which taken together ‘‘total- ly ban[ned] handgun possession in the home’’ and ‘‘require[d] that any lawful fire- arm in the home be disassembled or bound by a trigger lock at all times, rendering it

exception did not apply. Because that ruling is affirmed here, it is unnecessary to reach or decide whether Masciandaro would qualify for the § 2.4(h) exception.

8. Indeed, in Fox, the Supreme Court remand- ed the case, first for a ‘‘determination, pursu- ant to the standards described above, of the validity of [the] law’s application’’ to the par- ticular plaintiffs ‘‘and, [only] if its application TTT is found to be valid, for determination whether [the law’s] substantial overbreadth nonetheless makes it unenforceable.’’ 492 U.S. at 486, 109 S.Ct. 3028.

inoperable.’’ Id. at 2817.9 Importantly, Heller involved an as-applied challenge to these provisions by a D.C. special police officer who sought an injunction ordering the District of Columbia to issue him a license to carry his handgun, operable and free of a trigger lock, in his home. In finding that the officer was entitled to the relief sought, the Supreme Court summa- rized its holding as follows:

In sum, we hold that the District’s ban on handgun possession in the home vio- lates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. As- suming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Id. at 2821–22 (emphasis added). Thus, Heller ’s narrow holding is explicitly limit- ed to vindicating the Second Amendment ‘‘right of law-abiding, responsible citizens to use arms in defense of hearth and home.’’ Id. at 2821 (emphasis added).

Interestingly, Heller does not squarely address or decide the appropriate level of scrutiny to be applied to statutes and regu- lations subjected to Second Amendment challenges. Justice Scalia’s majority opin-

9. In describing the provisions at issue. Heller observed that ‘‘[f]ew laws in the history of our Nation have come close to the severe restric- tion of the District’s handgun ban.’’ 128 S.Ct. at 2818.

10. See, e.g., United States v. Engstrum, 609 F.Supp.2d 1227, 1231–35 (D.Utah 2009) (ap- plying strict scrutiny and upholding 18 U.S.C. § 922(g)(9), which prohibits individuals con- victed of domestic violence crimes from pos- sessing firearms).

11. See, e.g., United States v. Miller, 604 F.Supp.2d 1162, 1171–72 (W.D.Tenn.2009) (applying intermediate scrutiny and uphold- ing federal felon-in-possession statute, 18 U.S.C. § 922(g)); United States v. Bledsoe, No.

ion sidesteps this issue, noting that it is preferable to address it in the future on a case-by-case basis. See Heller, 128 S.Ct. at 2821. Heller itself suggests that some elevated level of scrutiny—either strict scrutiny or some intermediate level of scrutiny—is appropriate, and the D.C. laws at issue in Heller failed under any such standard. Id. at 2817–18 and n. 27. Those lower courts to address Second Amendment challenges to statutes and regulations post-Heller have not been uni- form in this respect; some have applied strict scrutiny,10 others have used interme- diate scrutiny,11 and still others have for- mulated an ‘‘undue burden’’-type approach similar to that used in the context of abor- tion regulations.12 In any event, it is rea- sonable to conclude from Heller that some elevated level of scrutiny is required when assessing the Second Amendment constitu- tionality of statutes and regulations.

(2) Heller’s Dicta

Because Heller also ‘‘represents [the Su- preme] Court’s first in-depth examination of the Second Amendment,’’ Justice Sca- lia’s majority opinion provides some guid- ance, in dicta, for future courts evaluating Second Amendment claims. Id. at 2821. In this regard, Heller ’s dicta is notable for

SA–08–CR–13(2)–XR, 2008 WL 3538717, at *4 (W.D.Tex. Aug. 8, 2008) (unpublished) (ap- plying intermediate scrutiny and upholding 18 U.S.C. § 922(a)(6), which places age re- strictions on firearm purchases).

12. See, e.g., Nordyke v. King, 563 F.3d 439, 460 (9th Cir.2009) (ordinance prohibiting fire- arm possession on county property did ‘‘not meaningfully impede the ability of individuals to defend themselves in their homes with usa- ble firearms, the core of the right as Heller analyzed it’’); People v. Flores, 169 Cal. App.4th 568, 577, 86 Cal.Rptr.3d 804 (2008) (statute prohibiting carrying of loaded fire- arms in public did ‘‘not burden the core Sec- ond Amendment right announced in Heller ’’).

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

787

Pet. App. 26a

788

648 FEDERAL SUPPLEMENT, 2d SERIES

the degree to which it confirms the limited scope of the case’s holding. For example, the majority opinion emphasizes that ‘‘[l]ike most rights, the right secured by the Second Amendment is not unlimited’’ and is ‘‘not a right to keep and carry any weapon whatsoever in any manner whatso- ever and for whatever purpose.’’ Id. at 2816. Thus, Heller recognizes (with ap- proval) that ‘‘the majority of 19th-century courts to consider the question held that prohibitions on carrying concealed weap- ons were lawful under the Second Amend- ment or state analogues.’’ Id. In addition, the majority opinion cautions that

[a]lthough we do not undertake an ex- haustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibi- tions on the possession of firearms by felons and the mentally ill, or laws for- bidding the carrying of firearms in sen- sitive places such as schools and gov- ernment buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

13. To be sure, in rejecting the District of Columbia’s argument that the Second Amend- ment provided only a collective right connect- ed to militia service, Heller relied on at least two 19th-century state supreme court cases interpreting the Second Amendment as pro- tecting an individual right to carry weapons openly (but not concealed) in public. More specifically, Heller cited approvingly to Nunn v. State, 1 Ga. 243 (1846), in which ‘‘the Georgia Supreme Court construed the Second Amendment as protecting the ‘natural right of self-defence’ and therefore struck down a ban on carrying pistols openly.’’ Heller, 128 S.Ct. at 2809 (quoting Nunn, 1 Ga. at 251). The Heller majority described Nunn as ‘‘perfectly captur[ing] the way in which the operative clause of the Second Amendment furthers’’ the Amendment’s purpose. Id. Similarly, Heller ’s dicta also cited with approval to State v. Chandler, 5 La. Ann. 489 (1850), in which ‘‘the Louisiana Supreme Court held that citi- zens had a right to carry arms openly’’ under the Second Amendment. Heller, 128 S.Ct. at

Id. at 2816–17 (emphasis added). More- over, Heller ‘‘identif[ied] these presump- tively lawful regulatory measures only as examples’’ that did ‘‘not purport to be ex- haustive.’’ Id. at 2817 n. 26. Accordingly, although Heller does not preclude Second Amendment challenges to laws regulating firearm possession outside the home,13 Heller ’s dicta makes pellucidly clear that the Supreme Court’s holding should not be read by lower courts as an invitation to invalidate the existing universe of public weapons regulations.14 With these as guiding principles, the analysis turns to Masciandaro’s as-applied challenge.

(3) As–Applied Challenge

[3, 4] With respect to Masciandaro’s as-applied challenge, the analysis properly begins with § 2.4(b)’s elements. This is so because where, as here, a defendant is convicted of a ‘‘general’’ charge that is ‘‘framed in the words of the statute,’’ a constitutional challenge to that conviction must focus on the statute’s elements, as ‘‘[c]onviction upon a charge not made would be sheer denial of due process.’’

2809 (citing Chandler, 5 La. Ann. at 490). Of course, like Heller, these 19th-century state supreme court decisions were silent on the constitutionality of the narrower regulation at issue here: a prohibition on carrying or pos- sessing loaded weapons in motor vehicles on National Park land.

14. In this regard, at least one commentator has observed that Heller ’s list of presumptive- ly lawful regulatory measures ‘‘is a crucial cue to lower court judges that is likely to minimize greatly the Heller decision’s im- pact.’’ A. Rostron, Protecting Gun Rights and Improving Gun Control after District of Co- lumbia v. Heller, 13 Lewis & Clark L. Rev. 383, 394 (2009). Thus, ‘‘[r]ather than being a win for the ‘pro-gun’ side or a setback for the ‘anti-gun’ forces, [Heller ] may turn out simply to have been a victory for all Americans, having finally driven home to everyone that respecting gun rights and achieving sound gun control are not mutually exclusive en- deavors.’’ Id. at 418.

Pet. App. 27a

Thornhill v. Alabama, 310 U.S. 88, 96, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (quoting De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937)).15 Here, 2.4(b) required the government to prove essentially three elements, namely (i) that Masciandaro ‘‘carr[ied] or possess[ed] a loaded weapon’’; (ii) that he did so ‘‘in a motor vehicle’’; and (iii) that he did so on National Park land. § 2.4(b). Thus, the question presented is whether Mascianda- ro’s conviction based on conduct satisfying these elements violates his Second Amend- ment right to keep and bear arms, as that right was elucidated by the Supreme Court in Heller. Put differently, the ques- tion is whether Masciandaro has a Second Amendment right to carry a loaded fire- arm in his vehicle on National Park land.

[5–7] As a threshold matter, it is im- portant to observe that Heller’s narrow holding does not reach or decide this issue. This is so because § 2.4(b), unlike the laws at issue in Heller, does not prohibit pos- session of a loaded firearm in the home; rather, § 2.4(b) prohibits carrying or pos- sessing a loaded weapon in a motor vehi- cle on National Park land.16 Thus, it is necessary to determine whether § 2.4(b)’s application to Masciandaro’s offense con- duct withstands the appropriate level of elevated constitutional scrutiny—either

15. See also Dunn v. United States, 442 U.S. 100, 106–107, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) (‘‘To uphold a conviction on a charge that was neither alleged in the indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitu- tional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused.’’)

16. In this respect, Masciandaro argued that because he often slept in his vehicle when traveling long distances, his vehicle is in ef- fect his home. This argument is unpersua- sive. First, occasionally sleeping in one’s ve- hicle on someone else’s property does not convert that vehicle into a home. And more importantly, Masciandaro himself testified at

strict scrutiny, intermediate scrutiny, or an ‘‘undue burden’’ analysis. In this re- spect, strict scrutiny requires that a stat- ute or regulation ‘‘be narrowly tailored to serve a compelling governmental interest in order to survive’’ a constitutional chal- lenge. Abrams v. Johnson, 521 U.S. 74, 91, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). Intermediate scrutiny requires that the challenged statute or regulation ‘‘be sub- stantially related to an important govern- mental objective.’’ Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Finally, a statute or regulation survives an ‘‘undue burden’’ analysis where it does not have the ‘‘ ‘purpose or effect [of] plac[ing] a substantial obstacle in the path’ ’’ of the individual seeking to engage in constitutionally protected con- duct. Gonzales v. Carhart, 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Planned Parenthood of South- eastern Penn. v. Casey, 505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)).

These principles, applied here, compel the conclusion that under any elevated lev- el of constitutional scrutiny, Masciandaro’s as-applied challenge must fail. First, the governmental interest furthered by § 2.4(b)—public safety in National Parks—is both important and compelling. In addition, § 2.4(b) is both narrowly tai-

trial that he often carries numerous personal items in his vehicle precisely because he ‘‘[g]enerally TTT do[es not] know at what point TTT [he] will be home.’’ Trial Tr. 17 (empha- sis added). Thus, even Masciandaro acknowl- edged at trial that he sometimes slept in his vehicle because he was away from home, not because his vehicle was his home. According- ly, Masciandaro’s argument that the regula- tion in question violated his Second Amend- ment right to carry a weapon in his home must be rejected. Neither reached nor decid- ed here is whether a person using a camper or recreational vehicle (RV) on National Park land has a Second Amendment right to carry or possess a loaded, operable firearm in the camper or RV.

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

789

Pet. App. 28a

790

648 FEDERAL SUPPLEMENT, 2d SERIES

lored and substantially related to further- ing public safety in National Parks. In this respect, § 2.4(b) does not prohibit car- rying or possessing a loaded firearm on National Park land outside motor vehicles, nor does § 2.4(b) prohibit carrying or pos- sessing unloaded firearms in motor vehi- cles on National Park land. Rather, § 2.4(b) is limited to those individuals, like Masciandaro, who elect to carry or possess a loaded firearm in a motor vehicle, and who do so on National Park land. More- over, given these limitations, it is clear that § 2.4(b) does not have the purpose or effect of placing a substantial obstacle in the path of Masciandaro’s exercise of his Second Amendment right, as announced in Heller, ‘‘to use arms in defense of hearth and home.’’ Heller, 128 S.Ct. at 2821. Accordingly, because § 2.4(b) plainly with- stands any elevated level of scrutiny, Mas- ciandaro’s as-applied challenge must fail.

In addition, Heller’s list of ‘‘presump- tively lawful regulatory measures’’ points persuasively to rejection of Masciandaro’s as-applied challenge. Id. at 2817 n. 26. In this respect, Heller’s dicta explicitly ac- knowledges that ‘‘laws forbidding the car- rying of firearms in sensitive places such as schools and government buildings’’ do not violate the Second Amendment rights of those prosecuted under such laws. Id. at 2817 (emphasis added). Although Hel- ler does not define ‘‘sensitive places,’’ the examples given—schools and government buildings—plainly suggest that motor vehi- cles on National Park land fall within any sensible definition of a ‘‘sensitive place.’’ Schools and government buildings are sen- sitive places because, unlike homes, they are public properties where large numbers of people, often strangers (and including

17. See, e.g., J.H. Wilkinson III, Of Guns, Abor- tions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 303 (2009) (arguing that ‘‘gun control is one area where ‘the answers to most of the cruel questions posed are political

children), congregate for recreational, edu- cational, and expressive activities. Like- wise, National Parks are public properties where large numbers of people, often strangers (and including children), congre- gate for recreational, educational, and ex- pressive activities. Moreover, the loca- tions within National Parks where motor vehicles travel—roads and parking lots— are even more sensitive, as roads and parking lots are extensively regulated thoroughfares frequented by large num- bers of strangers, including children. Thus, unlike a home or other private prop- erty, where the ‘‘need for defense of self, family, and property is most acute,’’ the locations in National Parks where vehicles travel, like schools and government build- ings, are sensitive places where the Second Amendment leaves the judgment of wheth- er (and if so, how) to regulate firearms to the legislature, not the judiciary. Id. at 2817. Similarly, Heller ’s approval of con- cealed weapons bans provides further sup- port for rejecting Masciandaro’s as-applied challenge, as carrying a loaded weapon in a motor vehicle—an act which, by defini- tion, is almost always outside the view of those nearby—presents the sort of compel- ling safety risk more adequately resolved by legislation than judicial ipse dixit.17

Finally, the result reached here also finds support in the scant post-Heller case law addressing firearms regulations in ‘‘sensitive places.’’ For example, in Nor- dyke v. King, 563 F.3d 439 (9th Cir.2009), a Ninth Circuit panel rejected a Second Amendment Heller challenge to a county ordinance broader than the regulation at issue in this case. More specifically, Nor- dyke held that an ordinance banning all possession of weapons or ammunition on

and not juridical.’ ’’ (quoting Webster v. Re- prod. Health Servs., 492 U.S. 490, 532, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (Scalia, J., concurring in part and concurring in the judgment))).

Pet. App. 29a

county property ‘‘fits within the exception from the Second Amendment for ‘sensitive places’ that Heller recognized.’’ Id. at 460. This is so, the Ninth Circuit panel ex- plained, because county property includes many ‘‘gathering places where high num- bers of people might congregate’’ and, like government building and schools, ‘‘possess- ing firearms in such places risks harm to great numbers of defenseless people (e.g., children).’’ Id. at 460, 459. Thus, the ordinance upheld in Nordyke did ‘‘not meaningfully impede the ability of individ- uals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it.’’ Id. at 460.

18. It is worth noting that the Ninth Circuit has since voted to rehear Nordyke en banc. See 575 F.3d 890 (9th Cir.2009) (Order). Of course, it is also worth noting that the bulk of the panel opinion in Nordyke confronted an issue not present in this case, namely whether the Second Amendment applies to state and county ordinances via Fourteenth Amend- ment incorporation. In any event, the panel opinion in Nordyke is persuasive with respect to its ‘‘sensitive places’’ analysis, and no en banc reconsideration of that analysis would affect the result reached here.

In addition, the result reached here also finds support in other post-Heller cases up- holding weapons regulations based on both Heller ’s ‘‘sensitive places’’ exception and Hel- ler ’s recognition that concealed weapons bans are constitutional. See, e.g., United States v. Davis, 304 Fed.Appx. 473, 474 (9th Cir.2008) (unpublished) (upholding convic- tion for carrying concealed weapon in an airplane and observing that ‘‘nothing in [Hel- ler ] was intended to cast doubt on the prohi- bition of concealed weapons in sensitive places’’); United States v. Dorosan, No. 08cr042, 2009 WL 273300, at *1 (E.D.La. Jan. 28, 2009) (Mem. Op.) (affirming magis- trate judge’s judgment of conviction for viola- tion of 39 C.F.R. § 232.1(1), which prohibits possession of firearms on United States Postal Service property, finding the regulation con- stitutional under Heller’s ‘‘sensitive places’’ exception); United States v. Walters, No. 08cr31, 2008 WL 2740398, at *1 (D.Vi. July 15, 2008) (Order) (upholding conviction for possession of a firearm within 1,000 feet of a

The same result should obtain here for essentially similar reasons. Significantly, § 2.4(b) is more narrowly framed than the ordinance at issue in Nordyke; § 2.4(b) does not prohibit all possession of firearms and ammunition on National Park land, but rather limits the prohibition at issue to carrying or possessing loaded firearms in motor vehicles. Thus, if the county ordi- nance at issue in Nordyke is constitutional under the Second Amendment, the consti- tutionality of § 2.4(b) follows a fortiori.18 Accordingly, Masciandaro’s § 2.4(b) con- viction, which rested on proof that he pos- sessed a loaded firearm in a motor vehicle and on National Park land, does not vio- late his Second Amendment rights.19

school zone); People v. Yarbrough, 169 Cal. App.4th 303, 314, 86 Cal.Rptr.3d 674 (2008) (‘‘concealment of a firearm under TTT cloth- ing on a residential driveway that was not closed off from the public and was populated with temporary occupants falls within the ‘historical tradition’ of prohibiting the carry- ing of dangerous weapons in publicly sensi- tive places’’ (quoting Heller, 128 S.Ct. at 2817)).

19. In this respect, because proof that Mas- ciandaro’s conduct satisfied the elements of § 2.4(b) is sufficient to defeat the as-applied challenge, it is unnecessary to determine whether the Magistrate Judge could have ap- plied a narrowing construction that would have placed the conduct for which Mascian- daro was convicted even further outside the scope of his Second Amendment rights. See, e.g., Osborne v. Ohio, 495 U.S. 103, 125–26, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (reject- ing as-applied constitutional challenge based on state supreme court’s narrowing construc- tion but ‘‘remand[ing] for a new trial TTT to ensure that [defendant’s] conviction stemmed from a finding that the [government] had proved each of the elements’’ of the offense). But see, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874(1997) (observing that courts ‘‘may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction’’ (quoting Virginia v. Am. Book- seller’s Ass’n, 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988))); United States v.

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

791

Pet. App. 30a

792

648 FEDERAL SUPPLEMENT, 2d SERIES

(4) Facial Challenge

[8, 9] Next, although Masciandaro’s as- applied challenge fails, it is necessary to address his facial challenge. This is so because a facial challenge generally per- mits a ‘‘defendant to attack a statute be- cause of its effect on conduct other than the conduct for which defendant is being punished, thus protecting the right to en- gage in conduct not directly before the court.’’ Massachusetts v. Oakes, 491 U.S. 576, 586, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (Scalia, J., concurring) (citing Brockett, 472 U.S. at 503, 105 S.Ct. 2794). The Supreme Court has recently recog- nized that there are generally two types of facial challenges to a law’s constitutionali- ty. First, a party ordinarily ‘‘can only succeed in a facial challenge by ‘estab- lish[ing] that no set of circumstances exists under which the [law] would be valid,’ i.e., that the law is unconstitutional in all of its applications.’’ Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). In addition, the Su- preme Court’s ‘‘cases recognize a second type of facial challenge in the First Amendment context under which a law may be overturned as impermissibly over- broad because a ‘substantial number’ of its applications are unconstitutional, ‘judged in relation to the statute’s plainly legiti- mate sweep.’ ’’ Id. at 1190 n. 6 (quoting New York v. Ferber, 458 U.S. 747, 769–71, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)).20

Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875) (‘‘It would certainly be dangerous if the legis- lature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.’’) Similarly, because the judgment of conviction here did not rest upon any factual findings (nor did the charging document at issue set forth any allegations) concerning the nature of Daingerfield Island, it is unneces- sary to determine whether such findings may

Thus, the analysis turns to whether Ma- ciandaro’s Second Amendment facial chal- lenge to § 2.4(b) succeeds under either type of facial challenge.

[10] First, it is pellucidly clear that Masciandaro has not ‘‘establish[ed] that no set of circumstances exists under which’’ § 2.4(b) would be valid. Salerno, 481 U.S. at 745, 107 S.Ct. 2095. In this respect, it is important to observe as a threshold matter that because, as discussed supra, the Second Amendment does not grant Masciandaro an absolute right to carry a loaded weapon in his vehicle on National Park land in all circumstances, it necessar- ily follows that § 2.4(b) has at least some constitutional applications. And where, as here, a law has at least some constitutional applications, a facial challenge to that law ordinarily succeeds only where the chal- lenging party demonstrates that any un- constitutional applications of the law are not ‘‘severable’’ as a matter of statutory construction. This ‘‘severability’’ inquiry ‘‘is largely a question of legislative intent, but the presumption is in favor of sever- ability.’’ Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984). Thus, absent a clear showing that the law’s enacting body ‘‘would not have enacted those provisions [or applications] which are within its power, independently of [those] which [are] not, the invalid part[s] may be dropped if what is left is fully operative as a law.’’ Id. (internal quotations omitted).21 Masciandaro has made no such showing. Notably, the only applications of § 2.4(b) raised by Mascian-

have provided further support for rejecting Masciandaro’s as-applied challenge.

20. See also United States v. Booker, 543 U.S. 220, 314, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Thomas, J., dissenting in part) (‘‘Ab- sent an exception such as First Amendment overbreadth, we will facially invalidate a stat- ute only if the plaintiff establishes that the statute is invalid in all its applications.’’).

21. See also Booker, 543 U.S. at 323, 125 S.Ct. 738 (Thomas, J., dissenting in part) (‘‘We pre-

Pet. App. 31a

daro that are even arguably unconstitu- tional under Heller are (i) application of § 2.4(b) to a person legitimately using a motor vehicle as a home, or (ii) application of § 2.4(b) to a person who loads a firearm in a vehicle on National Park land for immediate and articulable self-defense purposes. Yet, even assuming, arguendo, that such applications might infringe on some hypothetical individual’s Second Amendment right, narrowing constructions of § 2.4(b) could easily remedy any uncon- stitutionality.22 Accordingly, Masciandaro has not ‘‘establish[ed] that no set of cir- cumstances exists under which’’ § 2.4(b)

sume that the unconstitutional application is severable. This presumption is a manifesta- tion of Salerno ’s general rule that we should not strike a statute on its face unless it is invalid in all its applications. Unless the Leg- islative clearly would not have enacted the constitutional applications independently of the unconstitutional application, the Court leaves the constitutional applications stand- ing.’’ (citing Regan, 468 U.S. at 653, 104 S.Ct. 3262)).

22. For example, where, unlike here, a person prosecuted under § 2.4(b) lawfully resides in a ‘‘vehicle’’ (like a motor home), a construing court could simply narrow the meaning of ‘‘motor vehicle’’ in § 2.4(b) to exclude vehi- cles actually used as homes. Similarly, in the unlikely event that a person were prosecuted for loading a weapon in circumstances pre- senting an imminent danger, a construing court could read a common-law ‘‘justifica- tion’’ defense into § 2.4(b). Although these observations do not purport to determine whether (and under what facts) such con- structions would be appropriate or necessary, these observations illustrate that any uncon- stitutional applications of § 2.4(b) are resolva- ble on a case-by-case basis.

Of course, Heller did not read a common- law ‘‘justification’’ or ‘‘self-defense’’ exception into the D.C. law at issue in that case, instead finding that such statutory construction was foreclosed by a prior opinion of the D.C. Court of Appeals, the statute’s plain text, and ‘‘the presence of certain other enumerated exceptions.’’ Heller, 128 S.Ct. at 2818–19 (citing McIntosh v. Washington, 395 A.2d 744, 755–56 (D.C.1978)). In this regard, it is im-

would be constitutionally valid and hence has failed to satisfy the first type of facial challenge. Salerno, 481 U.S. at 745, 107 S.Ct. 2095.

Similarly, Masciandaro has not demon- strated that § 2.4(b) must be struck down on its face as unconstitutionally overbroad. First, it is debatable whether the facial ‘‘overbreadth’’ doctrine ever extends be- yond the First Amendment context and, if it does, whether it is applicable to Second Amendment challenges.23 And even as- suming, arguendo, that facial overbreadth challenges are permissible in the Second Amendment context,24 it appears more

portant to note that the Supreme Court typi- cally ‘‘defer[s] to the decisions of the courts of the District of Columbia on matters of exclu- sively local concern.’’ Whalen v. United States, 445 U.S. 684, 687, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). But see Heller, 128 S.Ct. at 2853–54 (Breyer, J., dissenting) (‘‘[B]e- cause I see nothing in the District law that would preclude the existence of a background common-law self-defense exception, I would avoid the constitutional question by interpret- ing the statute to include it.’’). By contrast, neither § 2.4(b)’s plain text, nor any enumer- ated exceptions, foreclose a common-law self- defense exception. Nor is it necessary here to consider deference to the construction of a state court, as the regulation at issue is feder- al, and not local, in nature.

23. See Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System, 194–97 (5th ed.2003) (describing de- bate in Supreme Court and among scholars as to scope of overbreadth doctrine).

24. To be sure, Heller likens the Second Amendment right to keep and bear arms in at least some respects to the First Amendment right to free speech, most notably in observ- ing that ‘‘rational basis’’ scrutiny was not the appropriate standard of scrutiny for the D.C. regulations at issue in that case. See Heller, 128 S.Ct. at 2817 n. 27 (‘‘Obviously, [a ration- al basis] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeop- ardy, the right to counsel, or the right to keep and bear arms.’’).

U.S. v. MASCIANDARO

Cite as 648 F.Supp.2d 779 (E.D.Va. 2009)

793

Pet. App. 32a

794

648 FEDERAL SUPPLEMENT, 2d SERIES

doubtful still that such challenges are ap- propriate with respect to firearms laws not affecting the home.25 In any event, it is unnecessary here to decide whether (and under what circumstances) a facial over- breadth challenge may succeed on Second Amendment grounds, as Masciandaro has failed to satisfy his burden of demonstrat- ing ‘‘from actual fact that a substantial number of instances exist in which’’ § 2.4(b) cannot be applied constitutionally. N.Y. State Club Ass’n Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (emphasis added).26 In- deed, Masciandaro’s allegations of § 2.4(b)’s overbreadth are purely hypo- thetical and are unsupported by any show- ing that the alleged overbreadth is real, let alone substantial. Accordingly, Mascian- daro’s facial challenges must be rejected and the Magistrate Judge’s ruling in that regard affirmed.

725 F.2d 674 (4th Cir.1984)). Thus, a court’s equitable expungement power ‘‘is to be reserved only for extreme and com- pelling circumstances, such as when neces- sary to remedy the denial of an individual’s constitutional rights, or when the govern- ment concedes the defendant’s innocence.’’ Id. at 284 (internal citations and quotation marks omitted).

[13] This case presents no such cir- cumstances. Indeed, where, as here, a conviction is constitutionally valid and up- held, it is difficult to imagine circum- stances warranting expungement. Thus, even assuming the Magistrate Judge had discretion to grant Masciandaro’s expunge- ment request, the record does not support Masciandaro’s contention that it was an abuse of discretion not to grant the re- quest. Rather, the Magistrate Judge found that expungement was not ‘‘appro- priate given the case law’’ and that any extenuating circumstances were taken into account by the modest fine imposed. Sen- tencing Tr. 4, 5. Accordingly, Masciandaro has failed to demonstrate that the Magis- trate Judge’s denial of his expungement request was an abuse of discretion.

IV.

In sum, the Magistrate Judge correctly held that Masciandaro must be adjudicated under the regulations in effect at the time of the alleged offense conduct. In addi- tion, the Magistrate Judge correctly held

arms for self-defense is ‘‘most acute,’’ it ap- pears doubtful that overbreadth challenges are appropriate where, as here, a firearm limitation does not even arguably affect fire- arms in the home. Heller, 128 S.Ct. at 2817.

26. See also Wash. State Grange, 128 S.Ct. at 1190 n. 6 (‘‘We generally do not apply the ‘strong medicine’ of overbreadth analysis where the parties fail to describe the instanc- es of arguable overbreadth of the contested law.’’).

C. Expungement [11, 12] Masciandaro’s

final ment—that the Magistrate Judge commit- ted an abuse of discretion in refusing to exercise jurisdiction over or grant his ex- pungement request—is patently meritless. To be sure, ‘‘courts TTT have inherent equi- table power to order the expungement of criminal records[,] TTT [but] such power is of ‘exceedingly narrow scope.’ ’’ United States v. Salleh, 863 F.Supp. 283, 283–84 (E.D.Va.1994) (quoting Coles v. Levine, 561 F.Supp. 146, 153 (D.Md.1983), aff’d,

argu-

25. In this respect, it is worth noting that even in the First Amendment context, overbreadth challenges are inappropriate to challenges only involving regulation of ‘‘commercial speech.’’ See, e.g., Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496–97, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (‘‘[O]verbreadth doctrine does not ap- ply to commercial speech.’’); Bates v. State Bar of Ariz., 433 U.S. 350, 380–81, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (same). Thus, given Heller ’s focus on the home, where the Second Amendment right to keep and bear

Pet. App. 33a

IN RE DIGITEK PRODUCT LIABILITY LITIGATION

Cite as 648 F.Supp.2d 795 (S.D.W.Va. 2009)

795

that Masciandaro’s as-applied and facial Second Amendment challenges are not supported by Heller and hence must fail. Finally, the Magistrate Judge’s denial of Masciandaro’s post-sentencing expunge- ment request was not an abuse of discre- tion. Accordingly, Masciandaro’s appeal must be dismissed and his judgment of conviction affirmed.

An appropriate Order will issue.

In re DIGITEKb PRODUCT LIABILITY LITIGATION.

This Document Relates to all Cases.

MDL No. 1968.

United States District Court, S.D. West Virginia, Charleston.

July 23, 2009.

Background: Consumers brought product liability action against corporation. Follow- ing transfer to multidistrict litigation (MDL) court, consumers moved for order permitting ex parte contact with corpora- tion’s former employees.

Holding: The District Court, Mary E. Stanley, United States Magistrate Judge, held that counsel for consumers would be permitted to conduct ex parte interviews of former employees.

Ordered accordingly.

1. Federal Courts O157 Transfer of a case to a multidistrict

litigation court requires the application of the law of the circuit of the transferee court considering motions with respect to discovery disputes and other pretrial is- sues.

2. Attorney and Client O32(12) Counsel for consumers in multidistrict products liability action would be permit- ted to conduct ex parte interviews of de- fendant corporation’s former employees to the extent allowed by American Bar Asso- ciation (ABA) Model Rules and comment, without giving advance notice of intention to contact employees or to send such em- ployees a form letter approved by the court. U.S.Dist.Ct.Rules S.D.W.Va., Rule

83.7.

PRETRIAL ORDER # 31 (Ex Parte Contact with Former Actavis Employees)

MARY E. STANLEY, United States Magistrate Judge.

Pending before the court is Plaintiffs’ motion for an order permitting ex parte contact with former Actavis employees (docket # 153). The Actavis defendants have responded in opposition (# 156), and Plaintiffs have filed a reply (# 158).

Positions of the parties

Plaintiffs contend that the court should apply the West Virginia Rules of Profes- sional Conduct with respect to counsel’s ex parte contact with the former employees of the Actavis defendants. (# 153, at 1.) They assert that in multidistrict litigation, the transferee court applies the law of the circuit in which it is sitting when ruling on discovery disputes. Id., at 4. Plaintiffs argue that the West Virginia Rules permit ex parte contact with former employees of an adverse corporate party. Id., at 1.

The Actavis defendants respond that Plaintiffs’ motion does not comport with either New Jersey or West Virginia law. (# 156, at 2.) They urge the court to adopt reasonable restrictions and protections for ex parte interviews of their former em- ployees, including identification and notice of each former employee to be contacted,

Pet. App. 34a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 2 of 9

Pet. App. 35a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 3 of 9

Pet. App. 36a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 4 of 9

Pet. App. 37a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 5 of 9

Pet. App. 38a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 6 of 9

Pet. App. 39a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 7 of 9

Pet. App. 40a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 8 of 9

Pet. App. 41a

Case 1:09-cr-00238-TSE Document 10-11 Filed 06/19/2009 Page 9 of 9

Pet. App. 42a

OBJECTIONS TO PSIs, REQUESTS FOR DEPARTURES, SENTENCING MEMORANDA

admin — Tue, 05 Jul 2011 19:02:54 +0000

OBJECTIONS TO PSIs, REQUESTS FOR DEPARTURES, SENTENCING MEMORANDA

 As of May 1, 2011, the U.S. Probation Office is conducting PSI interviews remotely (videoconferencing) for clients housed at certain prisons. Interviews are not recorded or monitored. Defense counsel will be offered the option of participating in the PSI interview remotely from the U.S. Probation Office in lieu of travelling to the facility and will be allowed to speak with the client privately if needed. The U.S. Probation Office will get the necessary authorizations to release information after the rearraignments and before the clients are returned to their facilities.

 Five Eastern District of Louisiana judges (Judges Barbier, Africk, Fallon, Vance, and Lemelle) are currently participating in a pilot program requiring the U.S. Probation Office to file PSIs electronically. They are delivered to attorneys through CM/ ECF.

ELECTRONIC FILING OF PRE-SENTENCE INVESTIGATION REPORTS

admin — Tue, 05 Jul 2011 19:00:37 +0000

On May 9, 2011, a pilot program commenced in which the U.S. Probation Office is now electronically filing and serving pre-sentence investigation reports through CM/ECF.

If the case is a sealed case or if the re-arraignment is sealed, these reports will NOT be electronically filed. They will be submitted on paper in a sealed manner to the attorneys and the court.

If a case is appealed, these reports will continue to be transmitted on paper in a sealed envelope to the Court of Appeals. At some point in the near future, we anticipate the 5th Circuit will begin accepting these documents electronically, as well.

 The Probation Office will designate personnel to e-file these reports. The designated probation officers will be set up as court users in CM/ECF with limited docketing privileges.

 When a report is filed, a docket entry will appear on a public docket sheet with the docket text reflecting that the pre-sentence report is either a ‘draft’ or ‘final’, the defendant’s name, and that the document will have restricted access.

 The NEF of the docket entry will be sent only to the government and applicable defense attorneys as determined by Probation. If an attorney is not a CM/ECF user, Probation must serve the report on them by conventional means.

 The Probation officer will then grant electronic access to view the document only to the government and applicable defense attorneys via an electronic “padlock” similar to the way court transcripts are handled now. This padlock also has a ‘history’ feature displaying the user who grants access, to whom access is given, and the date this occurred. The Probation officers have been cautioned to verify that only those attorneys representing the government and the defendant to be sentenced get access to the report.

 Each judge should designate a group of those staff members, if any, who will have access to the ‘Final’ pre-sentence investigation report and associated attachments.

 As the Clerk’s office docketing staff will not generally have access to the documents, these docket entries will not be QCed.

FILING PROCEDURES

 The Draft Pre-Sentence Investigation Report is e-filed by Probation and includes instructions to attorneys to file objections or sentencing memoranda directly to the Probation Office and not e-filed in CM/ECF. Probation will monitor the deadline for objections as they currently do. Though it will appear on the docket activity report, the Judge and staff will not have access to view the draft report. Only the government and applicable defense attorneys, as determined by Probation, will have access.

 Objections to pre-sentence investigation report are to be filed by attorneys directly with the Probation Office and not e-filed in CM/ECF.

 Sentencing Memoranda shall continue to be delivered by attorneys directly to the judge. These will not be e-filed in CM/ECF.

 The Final (and any Revised Final) Pre-Sentence Investigation Report (including worksheet) is e-filed by Probation with the following attachments: (1) sentencing recommendation, (2) any addendum, and (3) any letters. The docket entry will appear on a docket activity report. The case manager or other designated chamber’s staff will notify the judge of the filing. Only Probation and those staff members designated by the judge will have access to view the final report AND its attachments. The government and applicable defense attorneys will have access to the report but not the attachments.

JUDICIAL NOMINATIONS

admin — Tue, 05 Jul 2011 18:58:13 +0000

On June 7, 2011, President Obama nominated Susie Morgan to the United States District Court for the Eastern District of Louisiana. Ms. Morgan is a partner in the commercial litigation group at Phelps Dunbar here in New Orleans. Prior to joining Phelps Dunbar in 2005, she worked for 24 years at the Shreveport firm of Wiener, Weiss and Madison. Before that, she served as a law clerk to former Chief Judge of the Fifth Circuit Court of Appeals, Henry A. Politz. No hearing date has been set yet.

The Senate held confirmation hearings on June 8, 2011 for two of President Obama’s Louisiana nominees: Stephen Higginson, nominated on May 9, 2011 to the Fifth Circuit Court of Appeals, and Jane Margaret Triche-Milazzo, nominated on March 16, 2011 to the Eastern District of Louisiana. The Senate also held a confirmation hearing on May 4, 2011 for Nannette Jolivette-Brown, nominated on March 3, 2011 to the Eastern District of Louisiana. Her nomination was reported by the Committee to the Senate on May 26, 2011.

FSA 2010

admin — Tue, 05 Jul 2011 18:55:10 +0000

The issue of the retroactivity of the “Fair Sentencing Act of 2010″ (FSA), which reduced penalties for crack cocaine offenses, has been the source of quite a bit of recent litigation. On February 9, 2011, the Fifth Circuit ruled, in United States v. Doggins, 633 F.3d 379 (5th Cir. 2011), that the FSA is NOT retroactive for defendants who were sentenced BEFORE the FSA was signed into law on August 3, 2010. The Fifth Circuit, and indeed nearly every other federal circuit, has ruled that the “Savings Statute” of Title 1 U.S.C. §109 requires the application of the old law in place at the time of the commission of the crime, in the absence of congressional intent either express or implied as to the retroactivity of a new law. Thus, in the Fifth Circuit, the FSA is not retroactive as to any defendant who was sentenced before August 3, 2010. What about defendants who committed their offense before August 3, 2010, but have not been convicted and/or sentenced until AFTER August 3, 2010?

In a surprising decision, on May 31, 2011, the First Circuit upheld a district court’s decision to apply the FSA retroactively to a defendant who committed his offense before August 3, 2010, but was sentenced after that date. In United States v. Douglas, F.3d , 2011 WL 2120163 (C.A.1 (Me.)), the First Circuit looked to congressional intent and determined that Congress would not have ordered the Sentencing Commission to promulgate emergency guideline amendments to implement the FSA if it had not wanted the act to apply to defendants whose cases were still pending conviction or sentence after August 3, 2010. The First Circuit stated that “the imposition of a minimum sentence that Congress has condemned as too harsh makes this an unusual case. It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.”

The First Circuit’s Douglas decision creates a circuit split with the Seventh Circuit’s decision in United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). The Seventh Circuit found that the FSA did not apply retroactively to defendants who committed their offense before August 3, 2010, but were sentenced later. The Fifth Circuit has not addressed the issue of the whether it will allow retroactive application of the FSA to defendants who committed their crime before August 3, 2010, but were or still are awaiting sentence. We do not know whether the Fifth Circuit will follow the First or Seventh Circuit’s lead on this issue. Given the circuit split, it is likely that the Government will take a writ of certiorari to the Supreme Court on the Douglas decision.

With all the uncertainty at the circuit level, it is little wonder that the district courts are all over the place with trying to decide whether the FSA applies retroactively to pending cases with defendants who committed offenses before the FSA was enacted but had or have not yet been sentenced. Judge Ponsor’s ruling, in United States v. Watts, F.Supp.2d , 2011 WL 1282542 (D.Mass.) from the District of Massachusetts, is truly outstanding and should serve as a model for any defense motion requesting application of the FSA to a currently pending crack case. Given the huge success with the Douglas decision in the First Circuit and the resulting circuit split, defense counsel should definitely consider filing a motion for application of the FSA to any crack cases where the defendant committed the offense prior to August 3, 2010, but has not yet been convicted and/or sentenced.

__________________________________

1Evans, Circuit Judge, United States v. Anthony Fisher, 635F.3d336 (7th Cir. 2011).

Fifth Circuit Holds that District Courts Must Give Notice and Opportunity to be Heard Before Closing or Sealing Sentencing Proceedings

admin — Tue, 05 Jul 2011 18:52:28 +0000

In United States v. Cardenas-Guillen v. Hearst Newspapers, LLC (No. 10-40221), the Fifth Circuit held that the press and public have a First Amendment right of access to sentencing hearings and, therefore, the district court must give notice and an opportunity to be heard before closing or sealing a sentencing proceeding. This can be accomplished by, for example, docketing the motion to seal, or simply by placing a notice on the docket that there is a motion to close “a proceeding” and allowing interested parties to submit briefs or hold a hearing. The court explicitly rejected the government’s argument that security concerns justified the district court’s decision not to give

the press and public any notice or opportunity to be heard prior to closure

By way of background, the Houston Chronicle had moved to intervene in the criminal prosecution of a drug cartel leader, had requested that certain sealed documents be unsealed, and had also requested that the district court give notice and an opportunity to be heard before closing any future proceedings. The government then moved to close the sentencing hearing for reasons for public safety, and to not give notice to the public that the hearing was taking place. The court granted the government’s motion in a sealed order, and the court also sealed the government’s motion. The Houston Chronicle was able to find out when the sentencing hearing was scheduled and attempted to gain access to the courtroom with a handwritten motion. However, the court did not rule on that motion, denied access to the reporter and then denied the motion as moot after the closed sentencing proceeding had concluded.

USSC ADOPTS PERMANENT AMENDMENT IMPLEMENTING FSA

admin — Tue, 05 Jul 2011 18:48:21 +0000

USSC ADOPTS PERMANENT AMENDMENT IMPLEMENTING FSA

In April 2011, the Commission promulgated amendments to the federal sentencing guidelines covering drug trafficking offenses, firearms offenses, and other federal offenses.

In particular, it adopted a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010, legislation that, among other things, reduced the statutory mandatory minimum penalties for crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack cocaine. The Act also contained directives to the Commission to review and amend the federal sentencing guidelines to account for certain aggravating and mitigating circumstances in drug trafficking cases to better account for offender culpability. In October 2010, the Commission promulgated an emergency, temporary amendment to implement an emergency directive in the Fair Sentencing Act of 2010.

The Commission voted to set the triggering quantities of crack cocaine for the 5- and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy, in which the Commission, based on available information, defined crack cocaine offenders who deal in quantities of one ounce (approximately 28 grams) or more in a single transaction as wholesalers. As a result of the Commission’s amendments, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

In other actions the Commission adopted amendments to:  increase penalties for certain firearms offenses. For example, the Commission voted to provide increased penalties for

certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.  implement the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203), and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). More information regarding these amendments, and other amendments, can be found on

the Commission’s website at www.ussc.gov.

The Commission submitted its 2010-2011 amendment package to Congress on April 28, 2011. Congress has 180 days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2011, unless Congress acts affirmatively to modify or disapprove them.

Federal Crack Amendment Retroactive

admin — Tue, 05 Jul 2011 18:44:20 +0000

On June 30, 2011, the United States Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines implementing the FSA’s 18:1 crack/powder ratio. Retroactivity of the amendment will become effective on November 1, 2011, the same day that the proposed permanent amendment would take effect, unless Congress acts to disapprove the amendment.

Unfortunately, the Commission’s vote to give retroactive application to the proposed amendments to the guidelines does not give retroactive effect to the FSA itself. Many crack offenders will still be required under federal law to serve mandatory 5- or 10-year sentences because of the amount of crack cocaine involved in their offenses.

According to the Commission’s June 30 news release, approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the FSA amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s news release lists a number of factors that were considered during its deliberations, including the purpose of the amendment implementing the FSA, which lowers the penalties for crack cocaine offenses, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment.

According to the news release, after the Commission voted to give retroactive effect to its 2007 crack cocaine amendment, 16,433 motions for a reduced sentence were granted by federal district courts throughout the country. The Commission has conducted a study of the recidivism rate of those offenders who received a reduced sentence as a result of the 2007 amendment as compared to a similarly situated group of federal crack cocaine offenders who served their normal term of imprisonment. It has determined that there is no statistically significant difference in recidivism rates between the two groups of offenders.

Federal Case Law Update

admin — Thu, 09 Sep 2010 00:16:55 +0000

Tuesday, June 29, 2010

Supreme Court SyllabiSears v. Upton No. 09-8554 Decided June 29, 2010 Opinion Author: Per Curiam ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA Per Curiam. According to an expert who testified during state postconviction relief, petitioner Demarcus A. Sears performs at or below the bottom first percentile in several measures of cognitive functioning and reasoning. The cause of this abnormality appears to be significant frontal lobe brain damage Sears suffered as a child, as well as drug and alcohol abuse in his teens. But because-in the words of the state trial court-his counsel conducted a penalty phase investigation that was “on its face . . . constitutionally inadequate,” App. to Pet. for Cert. 27B, evidence relating to Sears’ cognitive impairments and childhood difficulties was not brought to light at the time he was sentenced to death. Continue reading Sears v. Upton …

Monday, June 28, 2010

Supreme Court SyllabiMcDonald v. City of Chicago No. 08-1521 Argued March 02, 2010 Decided June 28, 2010 Opinion Author: Alito Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases- United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535 -which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36. You can access the full text of the ruling at this link.

Friday, June 25, 2010

Supreme Court SyllabiSkilling v. United States No. 08-1394 Argued March 01, 2010 Decided June 24, 2010 Opinion Author: Ginsburg Founded in 1985, Enron Corporation grew from its headquarters in Houston, Texas, into the seventh highest-revenue-grossing company in America. Petitioner Jeffrey Skilling, a longtime Enron officer, was Enron’s chief executive officer from February until August 2001, when he resigned. Less than four months later, Enron crashed into bankruptcy, and its stock plummeted in value. After an investigation uncovered an elaborate conspiracy to prop up Enron’s stock prices by overstating the company’s financial well-being, the Government prosecuted dozens of Enron employees who participated in the scheme. In time, the Government worked its way up the chain of command, indicting Skilling and two other top Enron executives. These three defendants, the indictment charged, engaged in a scheme to deceive investors about Enron’s true financial performance by manipulating its publicly reported financial results and making false and misleading statements. Count 1 of the indictment charged Skilling with, inter alia, conspiracy to commit “honest-services” wire fraud, 18 U. S. C. §§371, 1343, 1346, by depriving Enron and its shareholders of the intangible right of his honest services. Skilling was also charged with over 25 substantive counts of securities fraud, wire fraud, making false representations to Enron’s auditors, and insider trading. Continue reading Skilling v. United States … Black v. United States No. 08-876 Argued December 08, 2009 Decided June 24, 2010 Opinion Author: Ginsburg Petitioners (hereinafter Defendants)-executives of Hollinger International, Inc. (Hollinger), a publicly held U. S. company-were indicted for mail fraud, 18 U. S. C. §§1341, 1346, and other federal crimes. At trial, the Government pursued alternative mail-fraud theories, charging that (1) Defendants stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and (2) by failing to disclose those fees, Defendants deprived Hollinger of their honest services. Before jury deliberations began, the Government proposed special-verdict forms that would reveal, in the event that the jury voted to convict on a mail-fraud count, the particular theory or theories accounting for the verdict. Defendants resisted, preferring an unelaborated general verdict. The Government ultimately acquiesced. The District Court instructed the jury on each of the alternative theories. As to honest-services fraud, the court informed the jury, over Defendants’ timely objection, that a person commits that offense if he misuses his position for private gain for himself and/or a co-schemer and knowingly and intentionally breaches his duty of loyalty. The jury returned general verdicts of “guilty” on the mail-fraud counts, found that one Defendant was also guilty of obstruction of justice, and acquitted Defendants on all other charges. Continue reading Black v. United States … Magwood v. Patterson No. 09-198 Argued March 24, 2010 Decided June 24, 2010 Opinion Author: Thomas Petitioner Magwood was sentenced to death for murder. After the Alabama courts denied relief on direct appeal and in postconviction proceedings, he sought federal habeas relief. The District Court conditionally granted the writ as to his sentence, mandating that he be released or resentenced. The state trial court sentenced him to death a second time. He filed another federal habeas application, challenging this new sentence on the grounds that he did not have fair warning at the time of his offense that his conduct would permit a death sentence under Alabama law, and that his attorney rendered ineffective assistance during the resentencing proceeding. The District Court once again conditionally granted the writ. The Eleventh Circuit reversed, holding in relevant part that Magwood’s challenge to his new death sentence was an unreviewable “second or successive” challenge under 28 U. S. C. §2244(b) because he could have raised his fair-warning claim in his earlier habeas application. Continue reading Magwood v. Patterson …

Monday, June 21, 2010

Holder v. Humanitarian Law ProjectNo. 08-1498 * Argued February 23, 2010 Decided June 21, 2010 Opinion Author: Chief Justice Roberts *Together with No. 09-89, Humanitarian Law Project et al. v. Holder, Attorney General, et al., also on certiorari to the same court. It is a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” 18 U. S. C. §2339B(a)(1). The authority to designate an entity a “foreign terrorist organization” rests with the Secretary of State, and is subject to judicial review. “[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” §2339A(b)(1). Over the years, §2339B and the definition of “material support or resources” have been amended, inter alia, to clarify that a violation requires knowledge of the foreign group’s designation as a terrorist organization or its commission of terrorist acts, §2339B(a)(1); and to define the terms “training,” §2339A(b)(2), “expert advice or assistance,” §2339A(b)(3), and “personnel,” §2339B(h). Continue reading Holder v. Humanitarian Law Project …

Thursday, June 17, 2010

Supreme Court SyllabiDillon v. United States No. 09-6338 Argued March 30, 2010 Decided June 17, 2010 Opinion Author: Sotomayor In 1993, petitioner Dillon was convicted of, inter alia, crack and powder cocaine offenses, which produced a base offense level of 38 and a Guidelines range of 262-to-327 months’ imprisonment. The court sentenced him at the bottom of the range for those counts. After the Sentencing Commission amended the Guidelines to reduce the base offense level associated with each quantity of crack cocaine, USSG Supp. App. C, Amdt. 706, and made that amendment retroactive, USSG Supp. App. C, Amdt. 713, Dillon moved for a sentence reduction under 18 U. S. C. §3582(c)(2). That provision authorizes a district court to reduce an otherwise final sentence pursuant to a Guidelines amendment if a reduction is consistent with the Commission’s policy statements. The relevant policy statement, USSG §1B1.10, precludes a court from reducing a sentence “to a term that is less than the minimum of the amended guidelines range” except in limited circumstances. In addition to the two-level reduction authorized by the amendment, Dillon sought a variance below the amended Guidelines range, contending that United States v. Booker, 543 U. S. 220, authorized the exercise of such discretion. The District Court imposed a sentence at the bottom of the revised range but declined to grant a further reduction. Finding Booker inapplicable to §3582(c)(2) proceedings, the court concluded that the Commission’s directives in §1B1.10 constrained it to impose a sentence within the amended Guidelines range. The Third Circuit affirmed. Continue reading Dillon v. United States …

Wednesday, June 16, 2010

Supreme Court SyllabiDolan v. United States No. 09-367 Argued April 20, 2010 Decided June 14, 2010 Opinion Author: Breyer Petitioner Dolan pleaded guilty to assault resulting in serious bodily injury and entered into a plea agreement, which stated that the District Court could order restitution for his victim. Dolan’s presentence report also noted that restitution was required, but did not recommend an amount because of a lack of information on hospital costs and lost wages. The Mandatory Victims Restitution Act provides that “if the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing,” the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). On July 30, the District Court held a sentencing hearing and imposed a sentence of imprisonment and supervised release. On August 8, the court entered a judgment, stating that restitution was “applicable” but leaving open the amount of restitution given that no information had yet “been received regarding possible restitution payments.” On October 5, 67 days later, an addendum documenting the restitution amount was added to the presentence report. The court did not set a hearing until February 4, about three months after the 90-day deadline had expired. At the hearing, Dolan argued that because that deadline had passed, the law no longer authorized restitution. Disagreeing, the court ordered restitution, and the Tenth Circuit affirmed. Continue reading … Dolan v. United States Holland v. Florida No. 09-5327 Argued March 1, 2010 Decided June 14, 2010 Opinion Author: Breyer Petitioner Holland was convicted of first-degree murder and sentenced to death in Florida state court. After the State Supreme Court affirmed on direct appeal and denied collateral relief, Holland filed a pro se federal habeas corpus petition, which was approximately five weeks late under the 1-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2244(d). The record facts reveal, inter alia, that Holland’s court-appointed attorney, Bradley Collins, had failed to file a timely federal petition, despite Holland’s many letters emphasizing the importance of doing so; that Collins apparently did not do the research necessary to find out the proper filing date, despite the fact that Holland had identified the applicable legal rules for him; that Collins failed to inform Holland in a timely manner that the State Supreme Court had decided his case, despite Holland’s many pleas for that information; and that Collins failed to communicate with Holland over a period of years, despite Holland’s pleas for responses to his letters. Meanwhile, Holland repeatedly requested that the state courts and the Florida bar remove Collins from his case. Based on these and other record facts, Holland asked the Federal District Court to toll the AEDPA limitations period for equitable reasons. It refused, holding that he had not demonstrated the due diligence necessary to invoke equitable tolling. Affirming, the Eleventh Circuit held that, regardless of diligence, Holland’s case did not constitute “extraordinary circumstances.” Specifically, it held that when a petitioner seeks to excuse a late filing based on his attorney’s unprofessional conduct, that conduct, even if grossly negligent, cannot justify equitable tolling absent proof of bad faith, dishonesty, divided loyalty, mental impairment, or the like. Continue reading Holland v. Florida …

Monday, June 07, 2010

Supreme Court SyllabiBarber v. Thomas No. 09-5201 Argued March 30, 2010 Decided June 07, 2010 Opinion Author: Breyer The federal sentencing statute at issue provides that a “prisoner … serving a term of imprisonment of more than 1 year … may receive credit toward the service of [that] sentence … of up to 54 days at the end of each year” subject to the Bureau of Prison’s (BOP) “determination … that, during that year, the prisoner” has behaved in an exemplary fashion. 18 U. S. C. §3624(b)(1). Credit “for the last year or portion of a year of the term of imprisonment [is] prorated … .” Ibid. The BOP applies this statute using a methodology that awards 54 days of credit at the end of each year the prisoner serves and sets those days to the side. When the difference between the time remaining in the sentence and the amount of accumulated credit is less than one year, the BOP awards a prorated amount of credit for that final year proportional to the awards in other years. Continue reading Barber v. Thomas … United States v Juvenile Male No. 09-940 Decided June 07, 2010 Opinion Author: Per Curiam ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Per Curiam. In 2005, respondent was charged in the United States District Court for the District of Montana with juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U. S. C. §5031 et seq. Respondent eventually pleaded “true” to knowingly engaging in sexual acts with a person under 12 years of age, which would have been a crime under §§2241(c) and 1153(a) if committed by an adult. In June 2005, the District Court accepted respondent’s plea and adjudged him delinquent. The court sentenced respondent to two years’ official detention and juvenile delinquent supervision until his 21st birthday. The court also ordered respondent to spend the first six months of his juvenile supervision in a prerelease center and to abide by the center’s conditions of residency. Continue reading United States v Juvenile Male …

Tuesday, June 01, 2010

Supreme Court SyllabiCarr v. United States No. 08-1301 Argued February 24, 2010 Decided June 01, 2010 Opinion Author: Sotomayor Enacted in 2006, the Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for, inter alia, any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a). Before SORNA’s enactment, petitioner Carr, a registered sex offender in Alabama, relocated to Indiana without complying with the latter State’s registration requirements. Carr was indicted under §2250 post-SORNA. The Federal District Court denied Carr’s motion to dismiss, which asserted that the §2250 prosecution would violate the Constitution’s Ex Post Facto Clause because he had traveled to Indiana before SORNA’s effective date. Carr then pleaded guilty and was sentenced to prison. Affirming the conviction, the Seventh Circuit held that §2250 does not require that a defendant’s travel postdate SORNA and that reliance on a defendant’s pre-SORNA travel poses no ex post facto problem so long as the defendant had a reasonable time to register post-SORNA but failed to do so, as had Carr. Continue reading Carr v. United States … Berghuis v. Thompkins No. 08-1470 Argued March 01, 2010 Decided June 01, 2010 Opinion Author: Kennedy After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion. At trial on first-degree murder and other charges, the prosecution called Eric Purifoy, who drove the van in which Thompkins and a third accomplice were riding at the time of the shooting, and who had been convicted of firearm offenses but acquitted of murder and assault. Thompkins’ defense was that Purifoy was the shooter. Purifoy testified that he did not see who fired the shots. During closing arguments, the prosecution suggested that Purifoy lied about not seeing the shooter and pondered whether Purifoy’s jury had made the right decision. Defense counsel did not ask the court to instruct the jury that it could consider evidence of the outcome of Purifoy’s trial only to assess his credibility, not to establish Thompkins’ guilt. The jury found Thompkins guilty, and he was sentenced to life in prison without parole. In denying his motion for a new trial, the trial court rejected as nonprejudicial his ineffective-assistance-of-counsel claim for failure to request a limiting instruction about the outcome of Purifoy’s trial. On appeal, the Michigan Court of Appeals rejected both Thompkins’ Miranda and his ineffective-assistance claims. The Federal District Court denied his subsequent habeas request, reasoning that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that it was not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), for the State Court of Appeals to determine that he had waived his right to remain silent. The Sixth Circuit reversed, holding that the state court was unreasonable in finding an implied waiver of Thompkins’ right to remain silent and in rejecting his ineffective-assistance-of-counsel claim. Continue reading Berghuis v. Thompkins …

Monday, May 24, 2010

Supreme Court SyllabiUnited States v. Comstock No. 08-1224 Argued January 12, 2010 Decided May 17, 2010 Opinion Author: Breyer Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. 18 U. S. C. §4248. The Government instituted civil-commitment proceedings under §4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing, the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground. Continue Reading United States v. Comstock … Abbott v. Abbott No. 08-645 Argued January 12, 2010 Decided May 17, 2010 Opinion Author: Kennedy After the Abbotts, a married couple, moved to Chile and separated, the Chilean courts granted respondent wife daily care and control of their minor son, A. J. A., while awarding petitioner husband visitation rights. Mr. Abbott also had a ne exeat right to consent before Ms. Abbott could take A. J. A. out of the country under Chile Minors Law 16,618 (Minors Law 16,618), art. 49. When Ms. Abbott brought A. J. A. to Texas without permission from Mr. Abbott or the Chilean family court, Mr. Abbott filed this suit in the Federal District Court, seeking an order requiring his son’s return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U. S. C. §11601 et seq. Among its provisions, the Convention seeks “to secure the prompt return of children wrongfully removed or retained in any Contracting State,” Art. 1; provides that such “removal or retention … is to be considered wrongful where” “it is in breach of rights of custody attributed to a person … under the law of the State in which the child was [theretofore] habitually resident,” Art. 3 (a), and where “those rights [had been] actually exercised … or would have been so exercised but for the removal or retention,” Art. 3 (b); and defines “rights of custody” to “include … the right to determine the child’s place of residence,” Art. 5 (a). The District Court denied relief, holding that the father’s ne exeat right did not constitute a “righ[t] of custody” under the Convention and, thus, that the return remedy was not authorized. The Fifth Circuit affirmed. Continue Reading Abbott v. Abbott … Graham v. Florida No. 08-7412 Argued November 9, 2009 Decided May 17, 2010 Opinion Author: Kennedy Petitioner Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, but the State First District Court of Appeal affirmed. Continue Reading Graham v. Florida … Sullivan v Florida No. 08-7621 Decided May 17, 2010 Opinion Author: Per Curiam ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT PER CURIAM. The writ of certiorari is dismissed as improvidently granted. It is so ordered. Continue Reading Sullivan v. Florida … United States v.Marcus No. 08-1341 Argued February 24, 2010 Decided May 24, 2010 Opinion Author: Breyer Respondent Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000. Thus, he claimed, the indictment and evidence permitted at trial allowed a jury to convict him exclusively on the basis of preenactment conduct in violation of the Ex Post Facto Clause. He conceded that he had not raised this objection in the District Court, but argued that because the constitutional error was plain, his conviction must be set aside. The Second Circuit agreed and vacated the conviction. In doing so, the court held that, even in the case of a continuing offense, retrial is necessary if there is “any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.” The court noted that this was “true even under plain error review.” Continue Reading United States v.Marcus … United States v. O’Brien No. 08-1569 Argued February 23, 2010 Decided May 24, 2010 Opinion Author: Kennedy Respondents O’Brien and Burgess each carried a firearm during an attempted robbery. Count three of their indictment charged them with using a firearm in furtherance of a crime of violence, which carries a mandatory minimum 5-year prison term. 18 U. S. C. §924(c)(1)(A)(i). Count four alleged use of a machinegun (here, a pistol that authorities believed operated as a fully automatic firearm) in furtherance of that crime, which carries a 30-year mandatory minimum term. §924(c)(1)(B)(ii). The Government moved to dismiss the fourth count on the basis that it could not establish the count beyond a reasonable doubt, but it maintained that §924(c)(1)(B)(ii)’s machinegun provision was a sentencing enhancement to be determined by the District Court upon a conviction on count three. The court dismissed count four and rejected the Government’s sentencing-enhancement position. Respondents then pleaded guilty to the remaining counts. The court sentenced O’Brien to a 102-month term and Burgess to an 84-month term for their §924(c) convictions. In affirming the District Court’s §924(c)(1)(B)(ii) ruling, the First Circuit looked primarily to Castillo v. United States, 530 U. S. 120, which held that the machinegun provision in an earlier version of §924(c) constituted an element of an offense, not a sentencing factor. The court found that Castillo was “close to binding,” absent clearer or more dramatic changes than those made by Congress’ 1998 amendment of §924(c) or a clearer legislative history. Continue Reading United States v. O’Brien … Robertson v. US ex rel. Watson No. 08-6261 Decided May 24, 2010 Opinion Author: Per Curiam ON WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS PER CURIAM. This is a complicated case, but it raises a straightforward and important threshold issue. When we granted certiorari, we rephrased the question presented to focus on that issue: “Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” 558 U. S ___ (2009). The answer to that question is no. The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government. The court below held otherwise, relying on a dissenting opinion in one of our cases, and on the litigating position of the United States, which the Solicitor General has properly abandoned in this Court. See Brief for United States as Amicus Curiae 12-13, n. 3. We should correct the lower court’s error and return the case to that court to resolve the remaining questions. Continue Reading Robertson v. US ex rel. Watson … Jefferson v. Upton No. 09-8852 Decided May 24, 2010 Opinion Author: Per Curiam ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Per Curiam. Petitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his lawyers were constitutionally inadequate because they failed to investigate a traumatic head injury that he suffered as a child. The state court rejected that claim after making a finding that the attorneys were advised by an expert that such investigation was unnecessary. Under the governing federal statute, that factual finding is presumed correct unless any one of eight exceptions applies. See 28 U. S. C. §§2254(d)(1)-(8) (1994 ed.). But the Court of Appeals considered only one of those exceptions (specifically §2254(d)(8)). And on that basis, it considered itself “duty-bound” to accept the state court’s finding, and rejected Jefferson’s claim. Because the Court of Appeals did not fully consider several remaining potentially applicable exceptions, we vacate its judgment and remand. Continue Reading Jefferson v. Upton …

Tuesday, April 20, 2010

Supreme Court SyllabiUnited States v. Stevens No. 08-769 Argued October 06, 2009 Decided April 20, 2010 Opinion Author: Chief Justice Roberts Congress enacted 18 U. S. C. section 48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” section 48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” section 48(b). The legislative background of section48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under section48 for selling videos depicting dogfighting. He moved to dismiss, arguing that section48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared section48 facially unconstitutional as a content-based regulation of protected speech. Continue reading United States v. Stevens …

Wednesday, March 31, 2010

Padilla v. Kentucky, No. 08-651In postconviction proceedings arising from a drug distribution prosecution, after which petitioner faced deportation based on his guilty plea and claimed that his counsel failed to advise him of the consequences of the plea, denial of postconviction relief is reversed and remanded where, because counsel must inform a client whether his plea carries a risk of deportation, petitioner sufficiently alleged that his counsel was constitutionally deficient. Read more … Related Resources: Case Docket

Monday, March 15, 2010

Supreme Court SyllabiBloate v. United States No. 08-728 Date Argued October 06, 2010 Decided March 08, 2010 Opinion Author: Thomas The Speedy Trial Act of 1974 (Act) requires a criminal defendant’s trial to commence within 70 days of his indictment or initial appearance, 18 U. S. C. §3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). As relevant here, the Act automatically excludes from the 70-day period ‘delay resulting from … proceedings concerning the defendant,” 18 U. S. C. A. §3161(h)(1) (hereinafter subsection (h)(1)), and separately permits a district court to exclude “delay resulting from a continuance” it grants, provided the court makes findings required by §3161(h)(7) (hereinafter subsection (h)(7)). Petitioner’s indictment on federal firearm and drug possession charges started the 70-day clock on August 24, 2006. After petitioner’s arraignment, the Magistrate Judge ordered the parties to file pretrial motions by September 13. On September 7, the court granted petitioner’s motion to extend that deadline, but on the new due date, September 25, petitioner waived his right to file pretrial motions. On October 4, the Magistrate Judge found the waiver voluntary and intelligent. Over the next three months, petitioner’s trial was delayed several times, often at petitioner’s instigation. On February 19, 2007-179 days after he was indicted-he moved to dismiss the indictment, claiming that the Act’s 70-day limit had elapsed. In denying the motion, the District Court excluded the time from September 7 through October 4 as pretrial motion preparation time. At trial, petitioner was found guilty on both counts and sentenced to concurrent prison terms. The Eighth Circuit affirmed the denial of the motion to dismiss, holding that the period from September 7 through October 4 was automatically excludable from the 70-day limit under subsection (h)(1). Continue reading Bloate v. United States … =========================================================================================== Johnson v. United States No. 08-6295 Date Argued October 06, 2009 Decided March 02, 2010 Opinion Author: Scalia Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use … of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). Concluding it does, the District Court enhanced Johnson’s sentence under §924(e)(1), sentencing him to a term of 15 years and 5 months. The Eleventh Circuit affirmed. Continue reading Johnson v. United States …

Friday, February 26, 2010

Supreme Court SyllabiMaryland v. Shatzer No. 08-680 Date Argued October 5, 2009 Decided February 24, 2010 Opinion Author: Scalia ========================================================================================= In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a Maryland prison pursuant to a prior conviction, about allegations that he had sexually abused his son. Shatzer invoked his Miranda right to have counsel present during interrogation, so the detective terminated the interview. Shatzer was released back into the general prison population, and the investigation was closed. Another detective reopened the investigation in 2006 and attempted to interrogate Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory statements. The trial court refused to suppress those statements, reasoning that Edwards v. Arizona, 451 U. S. 477, did not apply because Shatzer had experienced a break in Miranda custody prior to the 2006 interrogation. Shatzer was convicted of sexual child abuse. The Court of Appeals of Maryland reversed, holding that the mere passage of time does not end the Edwards protections, and that, assuming, arguendo, a break-in-custody exception to Edwards existed, Shatzer’s release back into the general prison population did not constitute such a break. Continue reading ‘Maryland v Shatzer’ …

Monday, February 22, 2010

Supreme Court SyllabiWilkins v. Gaddy No. 08-10914 Decided February 22, 2010 Opinion Author: Per Curiam ========================================================================================== ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Per Curiam. In Hudson v. McMillian, 503 U. S. 1, 4 (1992), this Court held that “the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury.” In this case, the District Court dismissed a prisoner’s excessive force claim based entirely on its determination that his injuries were ” de minimis.” Because the District Court’s approach, affirmed on appeal, is at odds with Hudson’s direction to decide excessive force claims based on the nature of the force rather than the extent of the injury, the petition for certiorari is granted, and the judgment is reversed. Continue reading ‘Wilkins v. Gaddy’ … Thaler v. Haynes No. 09-273 Decided February 22, 2010 Opinion Author: Per Curiam ========================================================================================== ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Per Curiam. This case presents the question whether any decision of this Court “clearly establishes” that a judge, in ruling on an objection to a peremptory challenge under Batson v. Kentucky, 476 U. S. 79 (1986), must reject a demeanor-based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror’s demeanor on which the explanation is based. The Court of Appeals appears to have concluded that either Batson itself or Snyder v. Louisiana, 552 U. S. 472 (2008), clearly established such a rule, but the Court of Appeals read far too much into those decisions, and its holding, if allowed to stand, would have important implications. We therefore grant the petition for certiorari, grant respondent’s motion to proceed in forma pauperis, and reverse the judgment of the Court of Appeals. Continue reading Thaler v. Haynes …

Friday, January 22, 2010

Supreme Court News UpdatesJudges CAN Disagree with the Career Offender Guideline Today, the Supreme Court GVR’d Vazquez v. United States (Case No. 09-5370), an 11th Circuit case. Judge Presnell originally sentenced Vazquez to 110 months’ incarceration, down from the 210-262 month range for the career offender guideline. The Eleventh Circuit reversed, finding the sentence procedurally unreasonable because it rested on the district court’s “disagreement with the guidelines, which was impermissible.” At resentencing, J. Presnell found that “it may be” that the career offender guideline “is immune from the policy criticisms otherwise permissible” because the crack guidelines involved an “implied congressional policy” while the career offender guideline “is a product of direct congressional expression.” The court resentenced Mr. Vazquez to 180 months’ imprisonment, concluding: “[I]f I were allowed to consider what I consider to be the unjust application of 4B1.1 in this case, I would impose a sentence lower than 180 months.” On appeal (by Mr. Vazquez), the Eleventh Circuit held that the district court’s refusal to consider its policy disagreement with the career offender guideline was not procedurally unreasonable. The court believed itself bound by United States v. Williams, 456 F.3d 1353 (11th Cir. 2006), which held that the district court impermissibly ignored congressional policy by generally disagreeing with the career offender guideline. The court stated that district courts may vary from guidelines based on policy disagreements only “where Sentencing Commission policy judgment, not Congressional direction, underlies the Guideline at issue,’” and “‘where that policy judgment did not arise from the Commission’s exercise of its characteristic institutional role.’” Vazquez sought rehearing en banc. In his petition, Mr. Vazquez showed that the Eleventh Circuit was alone in its position (as none of the cases cited by the court really supported its position). Additionally, Mr. Vazquez cited to the fact that the Solicitor General had taken a position inconsistent with the Eleventh Circuit’s opinion. The Eleventh Circuit denied rehearing. In his petition for writ of certiorari, Mr. Vazquez reiterated the points raised in his petition for rehearing. The Solicitor General agreed that the Eleventh Circuit opinion was wrong, and asked that the Supreme Court remand the case to the Eleventh Circuit so it could affirmatively know the Solicitor General’s position. Today, the Supreme Court granted cert, vacated the Eleventh Circuit opinion, and remanded for further proceedings based on the Solicitor General’s position. Carrying a Concealed Weapon Not a Violent Felony In Hunter v. United States (Case No. 09-122), the S Ct GVR’d another case from the 11th Circuit. Hunter was sentenced to 188 months as an Armed Career Criminal, based in part on two prior convictions for carrying a concealed weapon. To make another long procedural story short, the Solicitor General agreed that Hunter’s claim (on a 2255) presented a “substantial showing” that his sentence under the ACCA, in light of Begay and Archer, violated due process because it was in excess of the ten-year statutory maximum otherwise applicable in 18 U.S.C. 922(g) cases. And today the Supreme Court vacated the Eleventh Circuit’s order denying Hunter’s certificate of appealability and remanded “for further consideration in light of the position asserted by the Solicitor General in her brief.” Hunter v. United States, No. 09-122 (Jan. 19, 2010).

Tuesday, January 19, 2010

Supreme Court SyllabiPresley v. Georgia No. 09-5270 Decided January 19, 2010 Opinion Author: Per Curiam ================================================================================= ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA Per Curiam. After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. 285 Ga. 270, 674 S. E. 2d 909 (2009). Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgia’s affirmance contravened this Court’s clear precedents. Certiorari and petitioner’s motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed. Continue reading Presley v. Georgia … Wellons v. Hall No. 09-5731 Decided January 19, 2010 Opinion Author: Per Curiam ================================================================================= ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Per Curiam. From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioners constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in Cone v. Bell, 556 U. S. ___, ___ (2009) (slip op., at 1718). We do not know how the court would have ruled if it had the benefit of our decision in that case. Continue reading Wellons v. Hall …

Federal Crack Amendment

admin — Thu, 09 Sep 2010 00:11:31 +0000

INTRODUCTION
Over the past several years progress has been made in reducing the harsh sentences for crack cocaine offenses. Most recently, on August 3, 2010 the Fair Sentencing Act of 2010 was signed into law, reducing to 18 to 1 the sentencing ratio amount of powder cocaine versus crack cocaine that triggers the same sentence. The legislation also eliminates the mandatory minimum for simple possession of crack. On November 1, 2007, the Sentencing Commission amended the crack guidelines, lowering the penalties for most crack cocaine offenses in USSG §2D1.1 by two levels. On December 11, 2007, the Commission voted to make the amended guidelines retroactive to cases sentenced before November 1, 2007, with an effective date of March 3, 2008. The Commission also significantly modified USSG §1B1.10, which addresses the retroactive application of amendments. Through an amendment effective May 1, 2008 (Amendment 715), the Commission further modified USSG §2D1.1, revising the way in which combined offense levels are determined in cases involving crack and other drugs. The amendment, which was also made retroactive, provides that 1 gram of cocaine base equals 20 kilograms of marijuana and provides for a two-level reduction in the combined offense level for polydrug cases unless certain exceptions apply. The resources on this page help explain the new law as well as the application of the 2007 crack cocaine guidelines.
COMBATING DISPARITY IN CRACK/POWDER COCAINE SENTENCING
Legislative Developments Historic Crack Reform Law Enacted: On August 3, 2010 President Obama signed the Fair Sentencing Act of 2010, reducing sentences for crack cocaine offenses. The 100 to 1 sentencing ratio has been reduced to 18 to 1. Twenty-eight grams of crack cocaine will now trigger a five-year prison sentence and 280 grams of crack will trigger a ten-year sentence. The five-year mandatory minimum for simple possession of crack cocaine has also been eliminated. The Fair Sentencing Act does not appear to apply retroactively. The Sentencing Commission has issued proposed amendments to implement the directives of the new legislation. The notice and comment period for the proposed amendments is 30 days, to accommodate the Act’s mandate that the Commission promulgate temporary amendments by November 1, 2010. For details on the Act, including the issue of retroactivity, see the FAMM website and the Sentencing Law and Policy Blog. Also, this sample pleading may be helpful in arguing for application of the Act to pending cases with offenses committed before August 3, 2010. Testimony of Assistant United States Attorney General Lanny Breuer Supporting Elimination of Crack/Powder Disparity (April 30, 2009) In testimony before the Senate Judiciary Subcommittee on Crime and Drugs yesterday, Assistant United States Attorney General Lanny Breuer declared that “Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” This is the first time that the Department of Justice has supported equalization of cocaine sentencing. Noting that a complete end to the sentencing disparity cannot occur without Congressional action, Mr. Breuer offered hope for defendants currently facing sentencing for crack cocaine offenses: [W]e recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention. Mr. Breuer was one of several witnesses who testified at the April 30th hearing on “Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity.” On May 21, 2009, Mr. Breuer reiterated the Administration’s position before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security’s Hearing on: Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity? Joint Statement of Thomas W. Hillier, II and Jon Sands at the April 29, 2009 U.S. Senate Hearing on Restoring Fairness to Sentencing: Addressing the Crack-Powder Disparity Thomas W. Hillier, II, Federal Public Defender, Western District of Washington, Chair, Federal Defender Legislative Expert Panel; Jon Sands, Federal Public Defender, District of Arizona, Federal Defender Sentencing Guidelines Committee, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee This testimony urges the following reforms: (1) penalties for offenses involving the same quantity of crack and powder cocaine should be equalized at a level no greater than the current level for powder cocaine; (2) differences among offenses and offenders should be taken into account by the sentencing judge in the individual case, and aggravating circumstances should not be built into every sentence for crack cocaine; (3) the mandatory minimum for simple possession of crack cocaine should be repealed; (4) mandatory minimums should be repealed; (5) recidivist sentencing enhancements should be narrowly tailored to minimize their disparate impact on people of color; (6) enhanced penalties for drug distribution near protected zones should be repealed. Statement of A.J. Kramer at the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee This testimony urges Congress to make the following reforms: equalize the penalties for crack and powder cocaine at the current powder cocaine quantity levels; direct the USSC to review and, if appropriate, amend the guidelines applicable to all drug types, to account for aggravating and mitigating circumstances that may or may not be present in individual cases; repeal the mandatory minimum for simple possession of crack cocaine; repeal the mandatory minimum for all drug offenses; establish a pilot program for federal substance abuse courts; authorize the appropriation of additional funds for the defense of drug trafficking cases in the event Congress authorizes increased salaries and expenses for the prosecution of such cases. In A.J. Kramer’s Supplemental Statement he also addresses DOJ’s arguments against retroactive application of the crack cocaine amendments and refutes DOJ claims regarding the rates of violence and recidivism of crack cocaine offenders. Statement of Michael S. Nachmanoff at the February 26, 2008 U.S. House of Representatives Hearing – Cracked Justice: Addressing the Unfairness in Cocaine Sentencing Michael S. Nachmanoff, Federal Defender, Eastern District of Virginia, on behalf of the Federal Public and Community Defenders, before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism and Homeland Security This testimony provides additional support and statistics for many of the same arguments made in A.J. Kramer’s Testimony & Supplemental Testimony (described above on this page) before the Senate Subcommittee on Crime and Drugs of the Senate Judiciary Committee. DOJ and USSC Support of Equalization DOJ Memo of May 1, 2009 on Department Policies and Procedures Concerning Sentencing for Crack Cocaine Offenses This memo from the Deputy Attorney General to all United States Attorneys directs prosecutors to “inform courts that the Administration believes Congress and the Commission should eliminate the crack/powder disparity, but that Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses. Until Congress acts, courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a). Prosecutors should be governed by the facts and circumstances of individual cases and existing law. They may indicate that they will not object to a reasonable variance in an average case.” 2007 USSC Report to Congress on Cocaine and Federal Sentencing Policy In this report, the Commission urges reform of the crack cocaine sentencing laws. Facts and arguments contained in the report may be very useful to practitioners defending crack cocaine cases.
ANALYSIS OF THE 2007 CRACK COCAINE GUIDELINE AMENDMENTS
Mathematical Anomalies Resulting from Drug Equivalency and Quantity Tables When the USSC amended the crack cocaine guideline to reduce the base offense levels in November 2007, two separate types of mathematical anomalies resulted: (1) within range-anomalies and differing ratios between crack and powder cocaine in the drug quantity table; and (2) false equivalencies in poly-drug cases resulting from a new crack-to-marijuana equivalency table, resulting in base offense levels no different than pre-amendment levels. The first of these anomalies remains. With Amendment 715, effective May 1, 2008, the Commission remedied the second of these anomalies. Present Anomalies Resulting from Drug Quantity Table: Currently, the lowest ratios incorporated into the amended Drug Quantity Table of §2D1.1 only operate at base offense level 26. This results in within range-anomalies and wildly disparate ratios between crack and powder cocaine. See Kimbrough v. United States, 128 S.Ct. 558, 573 (2007)(“[a]s a result of the 2007 amendment,. . .the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1″). When the Commission promulgates a guideline that is based on “unsound judgment,” such as the arbitrary crack/powder ratios animating the drug quantity table, courts may exercise discretion to reject that provision. See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); Spears v. United States, _ S.Ct._, 2009 WL 129044 (Jan. 21, 2008) (per curiam) (reaffirming holding in Kimbrough that sentencing judges are entitled to reject and vary from crack cocaine guidelines based on policy disagreements, i.e., that 100:1 crack/powder ratio creates unwarranted disparity); see also U.S. v. Taylor, 586 F. Supp. 2d 1065, 1069. (E.D.Wis. Oct. 29, 2008) (finding that continued flaws and disparity in crack to powder ratio supports non-guideline sentence where had defendant possessed only powder cocaine, his base offense level would have been 22 rather than 30, and his range 46-57 months rather than 108-135). This analysis should find support in the new legislation that reduces the disparity to 18:1. For a more thorough discussion of present anomalies and suggestions on how to argue against unwarranted disparity still existing between the guidelines treatment of crack and powder cocaine offenses see Good Math to Fight the Bad Math: Avoiding Unwarranted Disparity by Applying the Commission’s Lowest Accepted Ratios to All Offense Levels. Remedy to False Equivalencies in Poly-Drug Cases: Through amendment 715, the Commission modified the Drug Equivalency Tables in Application Note 10(E) of §2D1.1, to provide that 1 gram of cocaine base equals 20 kilograms of marijuana. It also amended Application Note 10(D) to provide for a two level reduction to the combined offense level for a case involving crack and one or more other drugs, subject to some exclusions. A corresponding amendment to §1B1.10 renders the change to §2D1.1 retroactive. Attorneys who are challenging §2D1.1 on its face may wish to study the history of the prior mathematical problems with the equivalency table.
RETROACTIVE APPLICATION OF THE 2007 CRACK COCAINE GUIDELINE AMENDMENTS
Guidance to CJA Panel Attorneys Sample Motions, Briefs, Petitions and Orders Chart Comparing Amended Version of USSG §1B1.10 with Previous Version by National Federal Defender Sentencing Resource Counsel This chart compares the November 1, 2007 amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief. For additional comparisons of the previous and amended versions of USSG §1B1.10 see Redline Version of §1B1.10, Old Version of §1B1.10 and Amended Version of §1B1.10. *Supreme Court Holds That Booker* Does Not Apply to Resentencings Under 18 U.S.C. § 3582** In Dillon v. United States (No. 09-6338), issued on June 17, 2010, the Court held that Booker does not apply to sentencing modifications under 18 U.S.C. § 3582(c)(2). Percy Dillon had moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction. In affirming the Third Circuit’s judgment, the Supreme Court first determined that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Based on this determination, “we conclude that proceedings under that section do not implicate the interests identified in Booker.” For further analysis of Dillon see this SCOTUSblog post. For briefs filed in the case see SCOTUSwiki. For orders cited within petitioner’s reply brief see fact-finding orders and appointment of counsel orders. Commission Clarifies Meaning of USSG §1B1.10(b)(2)(B): Clients Who Received Non-Guideline Sentence Under Booker Still Eligible for Crack Retroactivity Sentence Reduction The amended guideline retroactivity policy statement, USSG §1B1.10, states at §1B1.10(b)(2)(B) that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, a further reduction generally would not be appropriate.” This appears to suggest that clients are not entitled to relief under the amendment if they received a non-guideline sentence under Booker. However, Sentencing Resource Counsel, as well as many Federal Defenders, report that at the Crack Summits in Charlotte and St. Louis, and at the Defender conference in Seattle, the Commission explained that §1B1.10(b)(2)(B) applies only if the original sentencing judge did not consider the guidelines at all. This acknowledgment is good news because there should be no instances in which judges ignored the guidelines. A sentencing judge must consider the guidelines, even if she then rejects them as unsound policy, and to do otherwise is reversible error under Gall v. United States, 128 S.Ct. 586, 596 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564, 570 (2007); Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007); Booker, 543 U.S. 220, 245-46 (2005). For comments relevant to this issue made at the St. Louis Crack Summit, view the Transcript of Portions of the Crack Amendment Retroactivity Summit. Crack Retroactivity: Questions, Answers, Caselaw, Argument Outlines (February 18, 2008) by Federal Public & Community Defenders This memorandum addresses a variety of procedural and substantive issues arising in crack retroactivity cases including: the right to counsel; the right to a hearing and for the defendant to be present; whether a court must order a new presentence report upon motion; whether a court may amend a sentence under § 3582(c)(2) where the original sentence was imposed pursuant to a binding plea agreement; application of §3582(c)(2) to defendants who originally received a non-guideline sentence; application of safety valve or the substantial assistance statute in §3582(c)(2) proceedings; application of §3582(c)(2) relief to career offenders; relief where the defendant was incarcerated beyond the expiration of his sentence under the amended guideline range; and whether a court may impose a sentence below the minimum of the amended guideline range. For a more recent update on several issues raised in this article, see Crack Retroactivity Caselaw (May 11, 2009). For prior articles raising similar issues, see Sentence Reductions Under the Retroactive Crack Amendment , Selected Retroactivity Caselaw, Retroactive Crack Amendment: Practice Tips and Other Lessons Learned in Charlotte and Crack Summit II: Practice Tips and Lessons Learned in St. Louis. Appointment of Counsel in Crack Retroactivity Cases (June 25, 2008) by the Training Branch of the Office of Defender Services This memo to the participants of the National Sentencing Policy Institute presents ten reasons why counsel should be appointed to handle § 3582(c)(2) motions. For a prior memorandum addressing this issue, see Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment Makes Sense and Is Constitutionally Required (by National Federal Defender Sentencing Resource Counsel) and Effective, Efficient, and Fair Implementation of the Retroactive Amendment. BOP Communications Affecting Inmates Eligible for Sentence Reductions Under the Amended Crack Cocaine Guidelines Letter from Defenders to the United States Sentencing Commission (November 21, 2007) This letter outlines the Defender community’s opposition to the Commission’s decision to amend USSG §1B1.10 (concerning retroactive application of amendments). Practitioners may find this letter useful in arguing, for example, that courts are not bound by the limitations set forth in the amendments to USSG §1B1.10. Supplemental Statement of A.J. Kramer for the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee This supplemental testimony responds to several DOJ assertions about retroactive application of the crack cocaine amendments, and corrects DOJ inaccuracies concerning alleged “dangerousness” of defendants convicted of crack cocaine offenses. It includes statistics showing lack of violence and recidivism in crack cocaine cases, urges judicial discretion, and directly contradicts DOJ testimony. Practitioners can use this supplemental statement, as well as A.J. Kramer’s original testimony, and the testimony of Michael Nachmanoff before the House, when disputing prosecutorial allegations that crack cocaine offenses, and those who are convicted of them, are “dangerous.”
HELPFUL LINKS
Families Against Mandatory Minimums Check FAMM’s web site for updated information on legislative developments regarding punishment for cocaine related offenses. FJC Crack Cocaine Retroactivity Guideline Information Exchange The Federal Judicial Center hosts this intranet web page to provide a forum for sharing information and ideas on policy and practice with regard to crack cocaine sentencing guideline retroactivity. Those with access to the site include all federal court judges and employees, federal defenders, personnel from the Administrative Office of the U.S. Courts (such as Probation), the Sentencing Commission and the Federal Judicial Center.

Office of Defender Services/Training Branch, Administrative Office of the United States Courts * One Columbus Circle, N.E. * Suite G-430 * Washington, DC 20544 Phone (202) 502-2900 * Hotline (800) 788-9908 * Fax (202) 502-2911