Constitutional Law - Second Amendment - Fourth Circuit Upholds Federal Firearms Regulation

Article excerpt

CONSTITUTIONAL LAW--SECOND AMENDMENT--FOURTH CIRCUIT UPHOLDS FEDERAL FIREARMS REGULATION.--United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), cert. denied, No. 10-11212, 2011 WL 2516854 (U.S. Nov. 28, 2011).

In 2008, the Supreme Court held in District of Columbia v. Heller(1) that individuals have a Second Amendment right to "handguns held and used for self-defense in the home."(2) However, the Heller Court explicitly declined to elaborate on the existence of Second Amendment rights beyond that scope.(3) Since then, lower courts have puzzled over the extent to which the Second Amendment applies outside the home.(4)

Recently, in United States v. Masciandaro,(5) the Fourth Circuit joined the debate--or, more accurately, it declined to do so. Specifically, the court held that a challenged federal gun regulation would survive intermediate scrutiny even if it implicated Second Amendment rights, so the court did not need to decide the Second Amendment question.(6) While this ruling is logically sound, it fails to take full advantage of the role of the federal courts of appeals. The courts of appeals should not avoid examining Second Amendment questions while the field is still new and developing, because addressing those questions directly can guide the lower courts and offer models for the Supreme Court in a setting where errors may be fixed with relative ease.

Sean Masciandaro's case began on June 5, 2008, with a parking violation in a federal park. A police officer approached Masciandaro's illegally parked car and found him asleep inside.(7) The officer woke him and asked to see his identification.(8) As Masciandaro retrieved his license, the officer noticed a large machete in the car and asked if Masciandaro had any other weapons.(9) Masciandaro admitted that he did: he had a loaded semiautomatic pistol in the same bag as his license.(10) Unfortunately for Masciandaro, this fact placed him in violation of a federal regulation that forbade "carrying or possessing a loaded weapon in a motor vehicle" in a national park.(11) Masciandaro was arrested, charged, and convicted before a magistrate judge.(12)

On appeal to the federal district court, Masciandaro presented two arguments. First, he claimed that his prosecution was improper because the regulation had been superseded after his arrest but before his trial.(13) Second, he argued that the regulation violated his Second Amendment right to possess a handgun for self-defense.(14) The district court rejected both arguments and affirmed the conviction.(15) It noted that Masciandaro's wrongful prosecution argument was addressed squarely by United States v. Hark,(16) which explained that a regulation's repeal does not prohibit prosecutions for violations that occurred while the regulation was in effect.(17) The district court also held that the firearm restriction did not violate the Second Amendment because it would survive under any level of scrutiny.(18) Masciandaro again appealed.

The Fourth Circuit affirmed.(19) Writing for the panel, Judge Niemeyer(20) echoed the district court's reasoning on the wrongful prosecution argument: absent explicit language to the contrary, he held, the federal government retains the ability to prosecute pre-repeal violations of regulations.(21) Turning to the Second Amendment claim, Judge Niemeyer began by reviewing the Supreme Court's decisions in Heller and McDonald v. City of Chicago.(22) He concluded that "[t]he 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 that "a considerable degree of uncertainty remains as to the scope of that right beyond the home."(23)

At this point, Judge Niemeyer split with the opinion of the court over whether it was proper to consider the scope of the Second Amendment right outside the home. Writing for himself only, Judge Niemeyer argued that "this is not the type of case where constitutional avoidance is appropriate" because the constitutional issue was squarely presented. …