ShortTimer
JBHAnd neither had I, until I stumbled across it on a gun forum and did some digging.
The short version is Mr. Masciandaro was legally armed, permitted by the state to enjoy the priviledge of a Constitutional right (but that’s another story). He was driving and stopped to rest in a National Park area. A cop approached him because he was parked illegally, and he was arrested for having a loaded gun in the car, in violation of not a law, but a federal regulation.
Which is legal under VA law §18.2-308
10. Any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.
From the 4th Circuit Court Documents:
On June 5, 2008, at about 10:00 a.m., United States Park
Police Sergeant Ken Fornshill, who was conducting a routine
patrol of Daingerfield Island, near Alexandria, Virginia,
observed a Toyota hatchback parked illegally. The vehicle
was parked parallel to the side of the parking lot, in violation
of the sign indicating “Front End Parking Only.” As Sgt.
Fornshill approached the vehicle, he saw Masciandaro and his
girlfriend sleeping inside and awoke them by tapping on the
window. He asked Masciandaro for his driver’s license, which
Masciandaro produced from a messenger bag located in the
vehicle’s rear compartment. While Masciandaro was retrieving
his license, Sgt. Fornshill noticed a large “machete-type”
knife protruding from underneath the front seat, prompting
him to ask Masciandaro whether there were any other weapons
in the vehicle. When Masciandaro replied that he had a
loaded handgun in the same bag, Sgt. Fornshill placed Masciandaro
under arrest. Following a search, Fornshill uncovered
a loaded 9mm Kahr semiautomatic pistol, and at the
police station, Masciandaro produced an expired Virginia
concealed weapon carry permit.Daingerfield Island, where Masciandaro was arrested, is
not an island but an outcropping of land extending into the
Potomac River near Alexandria. The area, which is managed
by the National Park Service, is used for recreational purposes
and includes a restaurant, marina, biking trail, wooded areas,
and other public facilities.Masciandaro was charged with “carrying or possessing a
loaded weapon in a motor vehicle” within national park areas,
in violation of 36 C.F.R. § 2.4(b), and failing to comply with
a traffic control device (the parking sign), in violation of 36
C.F.R. § 4.12. These regulations were promulgated by the
Secretary of the Interior under 16 U.S.C. § 3, which authorizes
the Secretary to “make and publish such rules and regulations
as he may deem necessary or proper for the use and
management of the parks, monuments, and reservations under
the jurisdiction of the National Park Service.” Violations of
these regulations are punishable by a fine of not more than
$500 or imprisonment not exceeding six months, or both.
Note that these are regulations that can send you to prison for six months. Regulations made by bureaucrats, not statutes made by legislators. Regulations suddenly carry force of law, and determine which men are guilty and which are innocent.
Cloudigy Law is representing Mr. Masciandaro. This summary is from when they initially were trying to get the case to SCOTUS:
Today we asked the Supreme Court to consider a case we argued before the Fourth Circuit in December. See United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011). It involves the Second Amendment right to keep and bear arms in self-defense and raises significant issues regarding the scope of that right. We requested that the Court consider whether: 1) the right to possess and carry a firearm for self-defense extends outside the home, and 2) it is constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land. This includes some major commuter roads like the George Washington Memorial Parkway. In this case, Mr. Masciandaro (a law-abiding citizen) was convicted under a regulation that makes it a crime to possess or carry a loaded weapon in a motor vehicle that happens to be located on land owned or managed by the National Park Service. The regulation does not contain a self-defense exception to this prohibition, and the issue is whether it is so broad that it violates the Second Amendment rights of Mr. Masciandaro and other law-abiding citizens.
The brief filed in opposition by the United States government was written up by Lanny Breuer, and posted here.
Lanny Breuer, Assistant Attorney General, political appointee.
Lanny Breuer, political appointee of Obama to the Department of Justice, tied up in Operation Gunwalker and Fast and Furious:
Meanwhile, over at SCOTUS Blog:
Asked by the Supreme Court for its views on the scope of a constitutional right to have a gun outside one’s home, the Obama Administration has tentatively suggested a standard that would mean that more restrictions on that right — but not really tight limits — would probably be upheld in court. In a brief filed Tuesday and now available, the U.S. Solicitor General said there was no reason to judge gun controls beyond the home by anything other than mid-level scrutiny — that is, less protection than gun rights advocates have been demanding.
A defense of a so-called “intermediate scrutiny” standard was not the central point of the brief, but emerged with some clarity as government lawyers responded to a new case involving a man convicted of having a loaded gun in his car in a national park — a place that the government argued is the kind of “sensitive place” that the Supreme Court has previously indicated could be put off-limits for guns. The case is Masciandaro v. U.S. (10-11212); the petition with the lower court opinion is here. After that petition was filed, the government opted not to reply to it. But on August 9, the Court asked for a response.
And:
“Despite the text of the Second Amendment,” Masciandaro’s petition contended, “federal and state appellate courts either expressly hold that the right to keep and bear arms ends at the doorway to the home or avoid deciding the constitutional question.” In Masciandaro’s case, the Fourth Circuit Court in Richmond, Va., simply assumed — but did not actually decide — that the Second Amendment may sometimes shield gun possession away from the home. It upheld his conviction and fine, even though the National Park Service regulation he was convicted of violating had by then been eased significantly.
U.S. Solicitor General Donald B. Verrilli, Jr., urged the Court to deny review, arguing that the change in the regulation had taken away the significance of this case for the future. But, more importantly, Verrilli challenged the need for the Court to adopt the most rigorous constitutional standard that can be applied — “strict scrutiny.” Usually, a law put to that test cannot survive, since the standard requires a very strong reason in public policy to justify a law. Strict scrutiny is the standard that the Court customarily uses to judge a law that is challenged as violating a “fundamental right” under the Constitution.
In the Court’s 2008 decision in District of Columbia v. Heller, the 5-4 majority ruled that the Second Amendment protected — as a “fundamental right” — an individual’s possession of a working and loaded gun for self-defense in the home. It refused, however, to specify which constitutional standard lower courts were to use in hearing sequel cases testing restrictions on the new personal right, leaving that to lower courts.
Read the whole piece here.
Further reading here at The Firing Line.
The Patriot Perspective 