In the Heller and McDonald cases, the Supreme Court found that the 2nd Amendment protects the right of individual citizens to keep and bear arms, but under current jurisprudence, that right ends at the front door of the home. Though both decisions contain dicta implying that the right to carry arms outside the home is protected, the lower courts disagree, citing a lack of specific direction from the Big Nine.
There are several cases currently awaiting the Court’s review on the matter. Woollard v. Sheridan challenges the unrealistic and corrupt permitting system used by the state of Maryland to deny the right of self-protection to ordinary folks, even those who have proven that they are in imminent danger. The plaintiff in Williams v. Maryland never even tried to get a permit, knowing that denial was a foregone conclusion. He was convicted of illegally carrying, and his conviction was upheld in a very arrogant 4th Circuit ruling.
United States v. Masciandaro is a third case, this one brought by a man who was convicted for having a firearm in his vehicle on National Park land. Of the three, this might be the best one to bring before the Court.
Woolard asks the Court to decide if a given permitting system is too restrictive, but stops short of pressing the central issue: does the 2nd Amendment guarantee the right to self-defense outside the home? The Williams case goes a step further, asking the Court to decide that very question. The decision being contested contains some inflammatory language from Justice Battaglia, in which he seems to be deliberately baiting his superiors.
Masicandaro goes even further. It’s more organized, and it addresses the mess that the lower courts are making of the matter, both in trying to dilute Heller and in applying lax standards of review that were specifically discredited by that decision:
II. Courts Will Not Recognize a Second Amendment Right to Self-Defense Outside One’s Home Until This Court Explicitly Tells Them That Right Exists
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 Question
B. This Court’s Guidance Is Needed Now, Before the Lower Courts Foreclose Any Constitutional Protection of the Self-Defense Right Outside the HomeIII. 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
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.
While it remains to be seen which case will be heard, it seems unlikely that the Court will choose to ignore the issue altogether. Masciandaro does the most organized and comprehensive job of putting the question forward.
In short, this is the way we win. For counterpoint, let us consider Leonard Embody. Mr. Embody’s antics are well-known at this point, but I’ll recap briefly. There is a point to this.
Embody, who goes by the nom de plume “Kwikrnu” on the innumerable internet forums he’s trolled, chooses to open carry. He doesn’t do so for convenience, or as a demonstration of his rights. In fact, he’s said that he’s not even interested in the 2nd Amendment much at all. He does this to provoke police confrontation and lawsuits.
Imagine a guy who paints “Free Candy” on the side of a van, then cruises around in front of an elementary school handing out NAMBLA literature. Such actions might be protected by the 1st Amendment, but no free speech advocate in their right mind would want anything to do with the guy. He’s gone too far, and he’s just looking to get a rise out of someone. If he scores a lawsuit, he considers it a bonus.
Mr. Embody does much the same thing. Last year, he wasn’t getting enough attention (or money) from law enforcement, so he bought a Draco pistol, painted the muzzle orange, and strolled around suburban Radnor Lake park on a Sunday afternoon. He was confronted by the police, who were none too happy, and when things didn’t go his way, he sued.
Because, by his own admission, that’s what this was all about.
His Tennessee carry permit was revoked. That was bad precedent #1. He then tried suing over his detention, and last week, a District Court threw his lawsuit out, claiming that Embody’s rights were not violated. That’s bad precedent #2.
Compare his situation with that of Mr. Masciandaro. The latter is a genuinely aggreived party whose predicament might lead to good case law. The former is an attention whore who’s willing to harm all of us in his quest for a paycheck.
Anyhow, I said there was a point to this, and there is. Alan Gura has submitted an amicus brief [pdf] in support of Masciandaro. He has previously spoken to the point that the biggest threat to our progress is bad litigation. Embody is a good example of this, and in the brief, Gura singles him out:
Mr. Embody was temporarily detained by police because, to the alarm of various park visitors, he was walking about in camouflage with an AK-47 pistol slung over his back, the barrel tip of which he had painted orange to disguise as a toy. Regardless of whether any one of these facts are properly the subject of criminal prohibition, their combination was plainly intended to provoke a confrontation with police. Upon verifying that Embody’s particular AK-47 was lawfully carried, he was let go.
Having obtained his desired confrontation, Embody sued the police. The court noted that a significant question existed of whether Embody’s particular weapon enjoyed constitutional protection, but it was easier to dismiss the case because the orange-barreled AK-47 was carried in a park, particularly in light of the Fourth Circuit’s precedent in this case.
Just as differences exist among various government-owned properties designated as “parks,” so too are there differences between people like Mr. Embody, who actively sought police confrontation, and Petitioner Masciandaro, who slept peacefully in his car with an ordinary gun he keeps for self-defense. The interest in self-defense secured by the Second Amendment may be at its zenith at night in an isolated park. Petitioner, who kept a firearm under normal circumstances, appears relatively well-positioned to test that proposition. Unlike Embody’s behavior, Petitioner’s actions are typical of the manner in which Americans exercise the right to bear arms, and would provide this Court a better platform upon which to announce a rule of constitutional law for the responsible majority of the people. [pp. 21-22]
Whether or not it’s fair, a sympathetic plaintiff is a necessary factor for successful 2nd Amendment litigation. If Dick Heller had been a neo-Nazi bent on overthrowing the government, or if Otis McDondald had been a methamphetamine dealer, our cause wouldn’t have gained the support it did in the courts over the last few years. Instead, our battles have been fought on behalf of law-abiding citizens who stood to suffer harm or loss as a result of unconstitutional laws.
We can fight just to be seen fighting, or we can fight to win.
(Stephen Halbrook is representing the plaintiff in Williams, while Alan Gura and the 2nd Amendment Foundation are arguing on behalf of Raymond Woollard. Masciandaro is being brought by Antigone Peyton and Matthew Levy of Cloudigy Law in Virginia.)