Supreme Court declines to clarify gun rights question

While his appeal was pending, the government changed its regulation, allowing the carrying of loaded firearms on federal land whenever that conduct is permitted under state law. In addition, three weeks after his arrest, the Supreme Court issued its decision in the Heller case.

A panel of the Fourth US Circuit Court of Appeals affirmed Masciandaro’s conviction, ruling that he had violated the law as it existed at the time of his offense.

The appeals court also ruled that the federal ban on loaded firearms in vehicles on park land was a reasonable regulation within the government’s power to enact and enforce

Two of the three judges declined to address the underlying issue of whether the Second Amendment protects a right to carry loaded firearms in public for self defense. “We think it prudent to await direction from the court itself,” Circuit Judge J. Harvie Wilkinson wrote.

“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,” he said. “The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.”

Judge Wilkinson mentioned an additional reason for his reluctance to wade into the controversial issue. “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.”

He added: “It is not far-fetched to think the 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.”

Gun rights advocates at the Second Amendment Foundation filed a friend of the court brief challenging Judge Wilkinson’s perspective on the issue.

“No court should wish to feel responsible for a violent crime that could have been averted or disrupted had the court not ‘miscalculated as to Second Amendment rights’ and left the victim without arms for her defense,” Alan Gura wrote in a brief urging the high court to take up the case.

In urging the Supreme Court not to take up the Masciandaro case, US Solicitor General Donald Verrilli said the government’s substantial interest in promoting public safety justifies the federal ban on loaded weapons on federal land.

“The decision of the court of appeals does not conflict with any decision of this court, any federal court of appeals, or any state court of last resort,” Mr. Verrilli wrote in his brief to the court on behalf of the Obama administration.

Masciandaro’s lawyer, Assistant Federal Public Defender Rachel Martin countered in her own brief that the high court should act now. “This case gives the court the opportunity to expressly hold what it already decided in Heller: the right to keep and bear arms includes the right for a law-abiding citizen to do so in self-defense, and not just in the home,” she wrote in her brief.

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