Cloudigy at the Supreme Court

Evidently the Virginia State Bar is taking the position that lawyers’ blogs are de facto attorney advertising, and requires a disclaimer on each post that discusses a case an attorney has been involved with, regardless of the content of that post.

So in an attempt to satisfy the Bar, while I disagree with this position, I am adding this disclaimer at the top of any blog posts that mention a case that Cloudigy attorneys have ever worked on:

CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE AND THE RESULTS OBTAINED IN THIS CASE (OR GENERAL INFORMATION WE REPORT ABOUT THE CASE) DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY OUR LAWYERS.

Now, on to the case update.

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.

In 2008, the Supreme Court recognized an individual right to keep and bear arms in self-defense and defense of the home. District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). Two years later, it applied this right against the states under the Fourteenth Amendment and recognized its fundamental nature. McDonald v. City of Chicago, 561 U.S. __, 130 S. Ct. 3020 (2010). But Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled with these issues over the last few years.

Since Heller, numerous federal and state appellate courts from around the country have refused to recognize any Second Amendment self-defense right outside the home. These courts have read the Heller decision as only protecting a constitutional self-defense right in one’s home or have refused to expand it further until the Supreme Court explicitly does so. In fact, lower courts have, to-date, upheld every challenged firearm regulation outside the home (with one known exception), using a variety of tests. In this case, the Fourth Circuit refused to recognize a Second Amendment self-defense right outside the home until it received Supreme Court guidance on the issue and used a “balancing test” to uphold the regulation—a constitutional test that was rejected by the majority in the Heller case.

Read the petition for certiorari here (Case No. 10-11212).

 

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