Sunday, August 14, 2011

WaPo Notices Second Amendment Cases

Robert Barnes, writing in the Washington Post, recognizes that there are a number of Second Amendment cases working their way through the lower courts including two that have been appealed to the Supreme Court. Unfortunately he buys the Brady Campaign's argument that Second Amendment cases have been continually losing in the lower courts since the Heller and McDonald decisions.
A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.

They’ve been on a losing streak in the lower courts.
Barnes makes reference to the so-called report put out by the Brady Center in July titled "Hollow Victory?" In it, the Brady Center argues that the lower courts have held that "the Second Amendment does not interfere with the people's right to enact legislation protecting families and communities from gun violence."

Both Barnes and the Brady Center ignore the 7th Circuit's decision in Ezell v. City of Chicago which was an unequivocal win for the Second Amendment and which may be the tool needed to get some sort of carry law passed in Illinois.

That said, the article does do a decent job of exploring two cases that might be granted certiorari by the Supreme Court. The cases are a Maryland case challenging a conviction for carrying or transporting with a permit and a Virginia case involving possession of a firearm in a National Park.

The Maryland case - Williams v. Maryland - is brought by Charles Williams who is contesting his 2008 conviction for violating Maryland's law against wearing, carrying, or transporting a firearm in public without a permit. He was traveling from his girlfriend's house to his own with a legally purchased gun. However, he does acknowledge that he hadn't applied for a permit. He is being represented by attorney Stephen Halbrook who contends that the Maryland law is so restrictive that "ordinary people" can't get the permit. This, he says, clearly violates the Supreme Court's decisions in Heller and McDonald. This case comes on appeal from the Maryland Court of Appeals which is that state's highest court.

Meanwhile, in Virginia, Sean Masciandaro was convicted and fined for having a loaded firearm in the trunk of his car on National Park Service property. While this has not been a crime since 2010, it was still prohibited when Mr. Masciandaro pulled off the George Washington Parkway to take a nap rather than fall asleep at the wheel of his car. Unfortunately, the GW Parkway runs through Theodore Roosevelt Island N.P. Moreover, when woken from his nap by park police because he was illegally parked, he answered honestly when asked if he had any more weapons than a knife that was in open view.

Masciandaro appealed his conviction to the 4th Circuit Court of Appeals where it was upheld. He is now appealing to the Supreme Court. According to Supreme Court case filings, he filed an in forma pauperis petition and has been assigned a Federal Public Defender in the case. The Second Amendment Foundation has filed an amicus brief supporting Mr. Masciandaro that was written by Alan Gura.

The article concludes with a brief discussion of the conflicting views about the right to carry for self-defense outside the home.
While the Brady Center trumpets Scalia’s finding that there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” the Second Amendment Foundation takes that as confirmation that “there is a right to carry at least some weapons, in some manner, for some purpose.”

The latter argument is in a brief supporting Masciandaro’s appeal written by Alan Gura, who argued the Heller case. He said the case provides a perfect chance to “clarify” for recalcitrant lower courts that the Second Amendment “applies beyond the threshold of one’s home.”

But if neither Williams nor Masciandaro strikes the court as the right opportunity for the next round of Second Amendment jurisprudence, Gura assures that there are more cases on the way.
Mr. Gura along with the Second Amendment Foundation has done a good job in making sure that many more (good) cases are on the way! And to be fair, the NRA has done its part as well.

- Posted using BlogPress from my iPad

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