Since there isn't a specific thread on this case yet, I thought I had better create one.
As announced in the Current 2A Cases thread, Mr. Masciandaro has petitioned for a Writ of Certiorari (see here).
This case is very similar to the Williams case, but with notable differences. The thread on Williams is here.
Some History to explain what likely will happen:
So now we have 2 cases that are mostly related. What will the Court do, especially as it is now in recess?
In the case of Masciandaro the US will file an answer. They have to, as this case does not depend upon any law that a particular State has in place for travel on or through Park Service land and to protect certain statutes brought up during trial and Circuit Appeal. Amici briefs will appear - although the amount of amicus briefs may now be split between the two cases. A reply by Mr. Masciandaro will be filed. The Court Clerks are not on recess and will keep all cases moving forward.
This will all be available (assuming the US does not request a 30 day extension, and even this is not a real bar, as it puts the reply on or around the first week of Sept.) to the Court when it comes back from recess.
Now the Court may decide to take one case over the other. If so, the other case will be held. The Court may also decide to deny the petitions outright, but I think this is not likely. Since the cases are so similar, they may decide to combine the two, but I also think this unlikely (but who really knows?).
My personal thought is that the Court will select Masciandaro, mostly because the petition goes into some detail over what the lower courts are doing (to Heller and the right in general) and this makes the entire question, ripe.
To see why this is the better case, all one has to do is to look at the TOC. Pay partyicular attention to Part II and Part III:
Matt Levy has specifically shown that the lower courts have treated each and every case as if it has been litigated as a criminal case. Thus tending to box in the right as something that is not desirable. That is something the Heller Court was very careful to tell the lower courts they could not do.
That is something that Mr. Halbrook did not do in Williams.
As announced in the Current 2A Cases thread, Mr. Masciandaro has petitioned for a Writ of Certiorari (see here).
This case is very similar to the Williams case, but with notable differences. The thread on Williams is here.
Some History to explain what likely will happen:
At the time of McDonald, there were actually 3 2A cases looking for cert. McDonald v. Chicago; NRA v. Chicago, et al; Maloney v. Rice.
The Court Chose McDonald and held the other two in abeyance until after their decision. The other two were then GVR'd.
The Court Chose McDonald and held the other two in abeyance until after their decision. The other two were then GVR'd.
So now we have 2 cases that are mostly related. What will the Court do, especially as it is now in recess?
In the case of Masciandaro the US will file an answer. They have to, as this case does not depend upon any law that a particular State has in place for travel on or through Park Service land and to protect certain statutes brought up during trial and Circuit Appeal. Amici briefs will appear - although the amount of amicus briefs may now be split between the two cases. A reply by Mr. Masciandaro will be filed. The Court Clerks are not on recess and will keep all cases moving forward.
This will all be available (assuming the US does not request a 30 day extension, and even this is not a real bar, as it puts the reply on or around the first week of Sept.) to the Court when it comes back from recess.
Now the Court may decide to take one case over the other. If so, the other case will be held. The Court may also decide to deny the petitions outright, but I think this is not likely. Since the cases are so similar, they may decide to combine the two, but I also think this unlikely (but who really knows?).
My personal thought is that the Court will select Masciandaro, mostly because the petition goes into some detail over what the lower courts are doing (to Heller and the right in general) and this makes the entire question, ripe.
To see why this is the better case, all one has to do is to look at the TOC. Pay partyicular attention to Part II and Part III:
Statement of the Case
A. Mr. Masciandaro Was Arrested for Having a Loaded Weapon in His Car While on NPS LandReasons for Granting the Petition
B. The Magistrate Judge Upheld the NPS Loaded Weapons Ban and Convicted Mr. Masciandaro
C. The District Court Analyzed the NPS Loaded Weapons Ban Under Three Constitutional Tests and Upheld the Conviction
D. The Court of Appeals Avoided the Constitutional Question and Applied an Intermediate Scrutiny Hybrid Analysis to Uphold the Conviction
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 HomeII. Courts Will Not Recognize a Second Amendment Right to Self-Defense Outside One’s Home Until This Court Explicitly Tells Them That Right Exists
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
C. This Case Is Analogous to Heller and Squarely Presents the Questions
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 QuestionIII. 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
B. This Court’s Guidance Is Needed Now, Before the Lower Courts Foreclose Any Constitutional Protection of the Self-Defense Right Outside the Home
A. Masciandaro and Other Federal Decisions Employ Balancing Tests Like the Test Proposed by the Heller Dissent
B. State Appellate Courts Have Applied a Rational Basis Test to Uphold Weapons Regulations
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
D. Other Courts Have Attempted to Apply a Historical Analysis to Determine Whether Certain Weapons Regulations Pass Constitutional Muster.
Matt Levy has specifically shown that the lower courts have treated each and every case as if it has been litigated as a criminal case. Thus tending to box in the right as something that is not desirable. That is something the Heller Court was very careful to tell the lower courts they could not do.
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. Heller, 554 U.S. at 634-35
That is something that Mr. Halbrook did not do in Williams.