Mr. Masciandaro was originally convicted of possessing a firearm on National Park Service property when he had stopped to take a nap before continuing his drive home. At the time of his arrest this was illegal but the law changed before he went to trial. Nonetheless, under existing precedent, this was valid even though it was no longer illegal.
As the Christian Science Monitor noted about this denial of certiorari:
Lawyers for a Virginia man had asked the justices to examine a question left largely unresolved in the high court’s two prior landmark rulings identifying the scope and substance of Second Amendment protections. The question is: Does the Second Amendment guarantee a right to bear arms in public for personal protection?On one hand, I am sorry that the Supreme Court did not take this opportunity to clarify their rulings in Heller and McDonald. On the other hand, this opens the door for the Supreme Court to consider some of the cleaner cases working their way through the lowers courts.
The court dismissed the case in a one-line order without comment. The action leaves lower court rulings intact and postpones the prospect of high court clarification on a key gun rights issue.
By cleaner I mean ones that do not involve a criminal conviction but rather deal with the denial of permits or state laws that deal with carry. Some of these better cases include Woollard v. Sheridan in Maryland, Bateman v. Perdue in North Carolina, and Kachalsky v. Cacace in New York. These three, I should note, are all Second Amendment Foundation cases with Alan Gura as the lead attorney.
Another SAF/Gura case that is currently at the Ninth Circuit and addresses [importantly] both "good cause" and "good moral character" prior restraints is Richards v. Prieto. More info: http://wiki.calgunsfoundation.org/index.php/Richards_v._Prieto.
ReplyDeleteTHE LOGIC OF "GOOD CLEAN CASES" that do not involve a criminal conviction but rather deal with the denial of permits or that do not involve a criminal conviction but rather deal with the denial of permits or ...", IS BEYOND THIS COMMON SENSE MIND AND ENTERS THE REALM OF POLITICAL BS. I WOULD THINK THAT BEING CONVICTED OF A "GUN CRIME" WOULD BE REASON TO DENY IN MOST JURISDICTIONS. DOES IT BECOME A CLEAN CASE THEN? THE SUPREME COURT SHOULD JUST COME OUT OF THEIR FOG, GO ALL THE WAY BACK TO MILLER V. US DECLARE THAT DECISION BASED ON HALF TRUTH WITH NO ONE FOR THE DEFENSE PRESENTING AND DECLARE THAT DECISION NULL AND VOID. FURTHER CONGRESS DOES NOT GET TO MISUSE THE COMMERCE CLAUSE TO RUN ROUGHSHOD OVER OUR LIVES.
ReplyDelete@Irishthug: Be that as it may, in strategic civil rights litigation clean cases with good, well-chosen plaintiffs are preferred to less than clean cases.
ReplyDeleteIt worked for the NAACP Legal Defense Fund and Thurgood Marshall and so far it has worked for the Second Amendment Foundation and Alan Gura.
@Brandon: Thanks for adding Richards to the mix. I went with 3 cases off the top of my head. Besides, you know us Easterners - we tend to forget about stuff on the other side of the Rockies. ;-/
ReplyDeleteMiranda was not a "clean" case. I hope Gura is not being too clever by half. What we have now is a reality that the federal district courts are ignoring Heller and McDonald, and time is running out on the aging Heller 5 justices. Time and time again the 2nd Amendment loses in federal court - Lane v Holder, Peruta v San Diego Cty., Peterson v LaCabe, Kachalsky v Cacace, Richards v Prieto and so on. The cases are now starting to cite each other CREATING bad precedent. Pretty much where we are at is its time for another constitutional amendment that I propose to read "When interpreting the 2nd Amendment the words "keep," "bear" and "shall not be infringed" REALLY mean what they say!"
ReplyDeleteDon't forget the good cause case out of NJ, formerly Mueller v Maenza.
ReplyDelete@RKV: I don't think Alan is being too clever by half. He did write an amicus brief for the SAF on behalf of Masciandaro asking them to grant certiorari which indicates his willingness to help out other cases that aren't perfect. Masciandaro was not a bad case as it involved someone traveling on a public highway who stopped on his way home for a period of time.
ReplyDeleteIrishthug,
ReplyDeleteYeah, I want all that, too. And a pony.
Assuming this guy is not a career criminal type, just someone caught up in a senseless application of the law (since the GW Parkway is pretty much indistinguishable from any other major high traffic, multilane highway in the area, in no way resembling what we think of a National Park) how is this not "clean"?
ReplyDeleteIf it's an illegitimate criminal conviction based on ignoring a core civil right, why would the Supremes not take the case?
Well, I suppose is could simply be "why bother?", since it's not obvious how to use it to create much new president, especially if what he did is no longer illegal. After all, what does it matter that one man's life is now ruined, absent a Presidential pardon?
Do we have any reason to believe that lower courts' continuing hostility to the 2nd Amendment will change things on the ground very much except when the Supreme deign to slap them down? I for one am waiting to see if the grant cert on Heller II; if not ... well, the Republicans are going to lose one of their arguments for electing a President, hopefully over time the Federal Courts will lose the excessive respect they have, and we'll return to the pre-2008 status quo of raw political power deciding this issue, where we're winning anyway.
Hga is most likely correct in that the SC probably did not want to set a new “look back” precedent. To do so would open the door to all sorts of challenges where a previously illegal activity has now been made legal. As much as I would like to see common sense in the courts (i.e. why did the prosecutor proceed to trial after the law had changed, other than because s/he could?), the SC has held on several occasions (cites slip my mind at the moment) that simply because a previously illegal activity is now legal it does not absolve those arrested/convicted before the change in the law.
ReplyDeleteAs to Miranda (and the other unnamed defendants in that string of cases) not being “clean,” that is fairly common in changes to 4th and 5th Amendment juris prudence. Most good law is made in response to the acts of bad people who were simply treated outside the bounds of Constitutional protections.
It is slightly different when the goal is to use Fabian tactics to affect a change. In that instance, the proponents must make sure to present the most palatable example possible so as to encourage the change. Especially on a 5-4 court. Give a leaning justice a reason to make the right choice (a “clean” appellant) over one with lots of baggage, especially on a controversial issue like the 2nd Amendment.