PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

v.  No. 09-4839

SEAN MASCIANDARO,

Defendant - Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, Senior District Judge.

(1:09-cr-00238-TSE-1)

Argued: December 8, 2010

Decided: March 24, 2011

Before WILKINSON and NIEMEYER, Circuit Judges,

and Patrick Michael DUFFY, Senior United States District

Judge for the District of South Carolina,

sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion for the court, in which Judge Wilkinson and Senior

Judge Duffy joined except as to Part III.B. Judge Wilkinson

wrote the opinion for the court as to Part III.B, in which

Senior Judge Duffy joined. Judge Niemeyer wrote a separate

opinion as to Part III.B.
COUNSEL

ARGUED: Antigone Gabriella Peyton, FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP,

Washington, D.C., for Appellant. Jeffrey Zeeman, OFFICE

OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,

Federal Public Defender, Rachel S. Martin, Assistant Federal

Public Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Alexandria, Virginia; Matthew Levy, FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, D.C., for Appellant. Neil H.

MacBride, United States Attorney, Alexandria, Virginia, for

Appellee.

OPINION

NIEMEYER, Circuit Judge, writing for the court except as to

Part III.B:

Sean Masciandaro was convicted of carrying or possessing

a loaded handgun in a motor vehicle within a national park

area, in violation of 36 C.F.R. § 2.4(b). He challenges his conviction on two grounds: (1) that he was improperly charged

under § 2.4(b), because after he was arrested but before he

was tried, that regulation was superseded by a more lenient

regulation that provided for state law to govern the legality of

his actions; or alternatively (2) that section 2.4(b) violates the

Second Amendment as applied to him and facially.

Because we conclude that the holding in United States v.

Hark, 320 U.S. 531 (1944), as well as the general federal savings statute, 1 U.S.C. § 109, denies defendants an automatic

entitlement to the benefit of post-arrest changes in the law, we

find that Masciandaro was properly tried under the law as it

existed on the date of his arrest.

2 UNITED STATES v. MASCIANDARO
On Masciandaro’s constitutional challenge, we conclude

that Masciandaro’s Second Amendment claim to a right to

carry or possess a loaded handgun for self-defense is assessed

under the intermediate scrutiny standard, and, even if his

claim implicates the Second Amendment, a question we do

not resolve here, it is defeated by applying that standard. We

conclude that the government has amply shown that the regulation reasonably served its substantial interest in public

safety in the national park area where Masciandaro was

arrested. Thus, we hold that 36 C.F.R. § 2.4(b) is constitutional as applied to Masciandaro’s conduct.

Although Masciandaro has also mounted a separate facial

challenge to § 2.4(b), we conclude that this challenge is foreclosed by our determination that the regulation is constitutional on an as-applied basis.

Accordingly, we affirm.

I

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 uncovUNITED STATES v. MASCIANDARO 3
ered 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. Id.

At trial, Masciandaro explained that he carried the handgun

for self-defense, as he frequently slept in his car while traveling on business, and that while traveling, he often kept cash,

a laptop computer, and other valuables on hand. The place

where Masciandaro was arrested on June 5, 2008, was 20

miles from his residence in Woodbridge, Virginia.

On April 30, 2008, slightly more than a month before Masciandaro was arrested, the Secretary of the Interior proposed

a revision to 36 C.F.R. § 2.4, which was designed to harmonize the regulation of firearms in national parks with that by

the States. See General Regulations for Areas Administered

by the National Park Service and the Fish and Wildlife Service, 73 Fed. Reg. 23,388 (Apr. 30, 2008). The proposal

4 UNITED STATES v. MASCIANDARO
advocated adding a new provision to § 2.4 which would allow

individuals to possess loaded, operable firearms within

national parks whenever it was legal to do so under the laws

of the state in which the park was located, so long as the individual was not otherwise prohibited from doing so by federal

law. Id. On December 10, 2008 — six months after Masciandaro’s arrest but less than two months before his trial — the

Secretary published a final version of the regulation, to take

effect January 9, 2009, which provided:

Notwithstanding any other provision in this Chapter,

a person may possess, carry, and transport concealed, loaded, and operable firearms within a

national park area in accordance with the laws of the

state in which the national park area, or that portion

thereof, is located, except as otherwise prohibited by

applicable Federal law.

73 Fed. Reg. 74,966, 74,971-72 (codified at 36 C.F.R.

§ 2.4(h)).

When 36 C.F.R. § 2.4(h) took effect, Masciandaro had not

yet been tried, and he promptly filed a motion with the magistrate judge to dismiss the charges against him, arguing that

§ 2.4(h) had effectively superseded § 2.4(b). He also argued

that, in any event, § 2.4(b) violated the Second Amendment,

as applied to him and facially. The magistrate judge denied

the motion to dismiss, and, on February 3, 2009, found Masciandaro guilty on both counts. The judge imposed a $150

fine on the handgun violation and a $50 fine on the parking

violation. Masciandaro appealed only the conviction on the

handgun charge to the district court.

On March 19, 2009, while Masciandaro’s appeal to the district court was pending, the District Court for the District of

Columbia issued a preliminary injunction, blocking enforcement of newly promulgated § 2.4(h), because the Department

of the Interior had failed to conduct the required environmenUNITED STATES v. MASCIANDARO 5
tal impact analysis. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2009).

Responding to this ruling, Congress promptly added language

to an unrelated piece of legislation, which in essence reinstated § 2.4(h) by statute. See Credit Card Accountability

Responsibility and Disclosure Act of 2009 ("Credit CARD

Act"), codified at 16 U.S.C. § 1a-7b(b). Section 512 of the

Credit CARD Act provides:

The Secretary of the Interior shall not promulgate or

enforce any regulation that prohibits an individual

from possessing a firearm including an assembled or

functional firearm in any unit of the National Park

System or the National Wildlife Refuge System if —

(1) the individual is not otherwise prohibited by law from possessing the firearm;

and

(2) the possession of the firearm is in compliance with the law of the State in which

the unit of the National Park System or the

National Wildlife Refuge System is located.

16 U.S.C. § 1a-7b(b).

On appeal, the district court rejected Masciandaro’s argument for application of § 2.4(h) in lieu of § 2.4(b) and

affirmed the magistrate judge’s ruling. United States v. Masciandaro, 648 F. Supp. 2d 779 (E.D. Va. 2009). Relying

mainly on United States v. Hark, 320 U.S. 531 (1944), the

court held that it was proper to try Masciandaro under the law

as it existed at the time of his arrest. Id. at 784-85. Addressing

the constitutionality of § 2.4(b), the court did not decide what

level of scrutiny to apply but held that even applying strict

scrutiny, the provision was narrowly tailored to serve the

compelling governmental interest in public safety and thus

was constitutional on an as-applied basis. Id. at 788-91. The

6 UNITED STATES v. MASCIANDARO
court rejected Masciandaro’s facial challenge because he had

not "demonstrat[ed] from actual fact" that a substantial number of instances exist in which § 2.4(b) could not be applied

constitutionally. Id. at 792-94.

From the judgment of the district court, dated August 26,

2009, Masciandaro filed this appeal.

II

Masciandaro contends first that he should not have been

prosecuted under 36 C.F.R. § 2.4(b) because that provision

was effectively superseded first by 36 C.F.R. § 2.4(h), a more

permissive regulation making state law applicable, and then

by § 512 of the Credit CARD Act, which effectively codified

§ 2.4(h). Section 2.4(h) was thus in effect when Masciandaro

was tried before the magistrate judge and § 512 of the Credit

CARD Act is in effect now. He maintains that a court must

"apply the law in effect at the time it renders its decision."

Landgraf v. USI Film Prods., 511 U.S. 244, 277 (1994) (quoting Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711

(1974)).

Masciandaro does not dispute the fact that on June 5, 2008,

he carried or possessed a loaded weapon in a motor vehicle

within a national park. Nor does he dispute the fact that at the

time he was arrested, 36 C.F.R. § 2.4(b) was in effect and prohibited such conduct. The question that arises is whether legal

developments postdating his arrest undermined the government’s ability to prosecute him under § 2.4(b).

The district court applied the Supreme Court’s decision in

United States v. Hark, 320 U.S. 531 (1944), to reject Masciandaro’s argument. In Hark, the defendants violated beef

pricing regulations promulgated during World War II pursuant to the Emergency Price Control Act of 1942. But after the

defendants committed their acts and before they were

arrested, the regulations were revoked. The Supreme Court

UNITED STATES v. MASCIANDARO 7
nonetheless rejected the defendants’ argument that they were

entitled to the benefit of the change in the law, holding that

"revocation of [a] regulation d[oes] not prevent indictment

and conviction for violation of its provisions at a time when

it remained in force." 320 U.S. at 536. As it explained:

The reason for the common law rule that the repeal

of a statute ends the power to prosecute for prior violations is absent in the case of a prosecution for violation of a regulation issued pursuant to an existing

statute which expresses a continuing policy, to

enforce which the regulation was authorized. Revocation of the regulation does not repeal the statute;

and though the regulation calls the statutory penalties into play, the statute, not the regulation, creates

the offense and imposes punishment for its violation.

Id. (citing United States v. Curtiss-Wright Export Corp., 299

U.S. 304 (1936)) (footnote omitted). The Court held that

because the Emergency Price Control Act had remained in

effect, the fact that the beef pricing regulations promulgated

under the Act had been revoked did not preclude the prosecution for an offense that occurred while the regulations were in

force.

As in Hark, the regulation at issue here was promulgated

pursuant to an enabling statute that permitted the Secretary of

the Interior to issue rules in furtherance of a specific objective. In Hark, the Emergency Price Control Act authorized the

Price Administrator to establish "by regulation . . . maximum

prices" of a variety of goods so as to prevent profiteering, see

Emergency Price Control Act of 1942, § § 1(a), 2(a), 56 Stat.

23, 23-24 (1942), whereas the enabling statute here, 16 U.S.C.

§ 3, provided the Secretary of the Interior with the power to

issue regulations "necessary . . . for the use and management

of the parks . . . under the jurisdiction of the National Parks

Service." Both statutes made it a crime to violate the regulations, and both set forth specific penalties for violations. Com8 UNITED STATES v. MASCIANDARO
pare Emergency Price Control Act of 1942, § 4(a), 56 Stat.

23, 28 ("It shall be unlawful . . . for any person to sell or

deliver any commodity . . . in violation of any regulation or

order under section 2"), and id. § 205(a)-(b), 56 Stat. 23, 33

(authorizing fines of up to $5,000 or imprisonment for up to

two years for willful violations), with 16 U.S.C. § 3 ("[A]ny

violation of any of the rules and regulations authorized by this

[Act] shall be punished by a fine of not more than $500 or

imprisonment for not exceeding six months, or both . . .").

Masciandaro claims that Hark is distinguishable because 16

U.S.C. § 3 does not "contain substantive provisions directly

restricting or prohibiting certain conduct," as did the Emergency Price Control Act. This argument, however, is unpersuasive because it treats what are actually differences in

degree as differences in kind. Both laws attach specific criminal penalties to actions that violate regulations issued by an

Executive Branch official. They differ, however, in the specificity with which they describe the offending conduct — the

Emergency Price Control Act made it unlawful to sell or

deliver commodities in violation of a regulation’s terms, as

specified by the Price Administrator, while 16 U.S.C. § 3

makes it unlawful to violate a regulation adopted for the use

and management of national parks, as specified by the Secretary of the Interior. Thus, both create an offense and both

depend on implementing regulations to "call[ ] the statutory

[offense] into play." Hark, 320 U.S. at 536. We thus conclude, as did the district court, that Masciandaro’s effort to

distinguish Hark falls short and that Hark is controlling.

Masciandaro suggests that Hark is also distinguishable

insofar as it depended on the continuing vitality of the underlying enabling statute. See Hark, 320 U.S. at 536

("Revocation of [a] regulation does not repeal the statute; and

though the regulation calls the statutory penalties into play,

the statute, not the regulation, creates the offense and imposes

punishment for its violation"). He claims that in this case,

with the enactment of the Credit CARD Act, "Congress

UNITED STATES v. MASCIANDARO 9
expressly withdrew the authority to enforce the superseded

[National Parks Service] regulation against Mr. Masciandaro

and other citizens who are similarly situated." He explains,

the Credit CARD Act "states that the Secretary of the [Interior] (through the Park Police and local United States Attorneys’ offices) shall not ‘enforce any regulation that prohibits

an individual from possessing a firearm including an assembled or functional firearm in any unit of the National Parks

System’ if that individual is acting in conformance with state

laws regulating that weapon." Thus, he argues, while Hark

applies when a regulation, but not the authorizing statute, has

been revoked, it does not apply when both the regulation and

the authorizing statute have been eliminated, as, he asserts,

occurred here.

While it is true that the Credit CARD Act prohibited the

Secretary of the Interior from enforcing a regulation such as

§ 2.4(b) in certain circumstances, that Act did not modify or

revoke 16 U.S.C. § 3, which authorized, and continues to

authorize, the Secretary of the Interior generally to issue

national park regulations that are enforceable by a fine or

imprisonment or both. If we accept the argument that the

Credit CARD Act somehow repealed a portion of 16 U.S.C.

§ 3 by implication by limiting the Secretary of the Interior’s

authority, the original form of the authorizing statute would

nonetheless be saved under the general savings statute, 1

U.S.C. § 109, which provides:

The repeal of any statute shall not have the effect to

release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute

shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution

for the enforcement of such penalty, forfeiture, or

liability.

This provision reversed the common-law rule, under which

the repeal of a criminal law "preclude[d] punishment for acts

10 UNITED STATES v. MASCIANDARO
antedating the repeal." Landgraf, 511 U.S. at 271; see also

Yeaton v. United States, 9 U.S. (5 Cranch) 281, 283 (1809)

(holding that when a criminal statute expires or is repealed,

"no penalty can be enforced, nor punishment inflicted, for

violations of the law committed while it was in force, unless

some special provision be made for that purpose by statute").

Accordingly, "unless [a] repealing statute explicitly provides otherwise, the repeal of a criminal statute neither abates

the underlying offense nor affects its attendant penalties with

respect to acts committed prior to repeal." United States v.

Bradley, 455 F.2d 1181, 1190 (1st Cir. 1972), aff’d 410 U.S.

605 (1973). This principle extends to criminal laws as well as

to regulations which implement them. Allen v. Grand Cent.

Aircraft Co., 347 U.S. 535, 554-55 (1954) (interpreting the

savings statute to "prevent the expiration of a . . . statute from

cutting off appropriate measures to enforce the expired statute

in relation to violations of it, or of regulations issued under

it, occurring before its expiration" (emphasis added)). Thus,

even if it were the case that both the criminal regulation and

its enabling act were found to have been repealed, the savings

statute would nonetheless preserve the government’s authority

to prosecute pre-repeal conduct covered by the regulation. Id.

While Masciandaro does argue that Congress eliminated

the Secretary’s power to restrict firearm possession under 16

U.S.C. § 3 by enacting § 512 of the Credit CARD Act, he has

not pointed to any language in § 512 "explicitly provid[ing],"

as required by Bradley, that the savings statute does not apply.

Indeed, the new law makes no mention of 1 U.S.C. § 109 or

existing prosecutions. Because there is no explicit language in

§ 512 of the Credit CARD Act avoiding application of the

savings statute, the savings statute’s default rule applies. See

Bradley, 455 F.2d at 1190. And under that rule, the government retains the ability to prosecute previous violations of 16

U.S.C. § 3 or of any "regulations issued under" that provision,

such as 36 C.F.R. § 2.4(b). Allen, 347 U.S. at 554.

UNITED STATES v. MASCIANDARO 11
In sum, we conclude that Masciandaro was properly prosecuted under 36 C.F.R. § 2.4(b), the law applicable at the time

of his arrest.

III

We now turn to Masciandaro’s constitutional challenge to

36 C.F.R. § 2.4(b). Masciandaro contends that the Second

Amendment, as construed by the Supreme Court in its "watershed" decision in Dist. of Columbia v. Heller, 128 S. Ct. 2783

(2008), guaranteed to him the right to possess and carry weapons in case of confrontation and thus protected him from prosecution under § 2.4(b) for exercising that right in a national

park area. He explains that 

[H]e travels extensively because of his small business and is frequently forced to sleep in his car while

he is on the road. He has a Second Amendment right

to keep a loaded handgun in the back of his car for

the purpose of self-defense and defense of the valuable business property, cash, and personal property

he carries with him in the car.

Masciandaro points out that his handgun is the "quintessential

self-defense weapon" and that he is exactly the type of

"law-abiding citizen" who is the primary intended beneficiary

of the Second Amendment’s protections.

The government maintains that the holding of Heller is

inapplicable here. It argues:

In Heller, the Supreme Court held that the District of

Columbia law that "totally ban[ned] handgun possession in the home" and prohibit[ed] rendering any

lawful firearm in the house operable for the purpose

of immediate self-defense violated the Second

Amendment. Because the Supreme Court’s decision

is limited to the possession of firearms in the home,

12 UNITED STATES v. MASCIANDARO
it does not invalidate the regulation at issue, which

narrowly involves only the possession of a loaded

firearm in a motor vehicle on National Park Service

land.

Both parties are correct, albeit incomplete, in their descriptions of the holding in Heller, yet both disagree on the scope

of the constitutional right articulated there. Thus, in resolving

Masciandaro’s constitutional challenge, we will begin with a

discussion of Heller’s holding and then proceed to address,

seriatim, the scope of the Second Amendment right to keep

and bear arms; the scrutiny that is applied in determining

whether a regulation of firearms in national parks is justified;

the question of whether a national park is a "sensitive place"

where prohibiting firearms is a presumptively lawful regulatory measure; and the application of our conclusions to Masciandaro’s circumstances.

A

The Second Amendment states, "A well regulated Militia,

being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed." U.S.

Const. amend. II.

Resolving the longstanding issue whether the Second

Amendment guarantees an individual right to keep and bear

arms or a collective right to do so in connection with militia

service, the Supreme Court in Heller held, based on "the historical background of the Second Amendment," that the

Amendment guarantees the "pre-existing" "individual right to

possess and carry weapons in case of confrontation." Heller,

128 S. Ct. at 2797 (emphasis omitted). Because the right predated the Constitution, the Court looked to the historical

record when articulating its nature, noting that the right was

secured to individuals according to "’libertarian political principles,’ not as members of a fighting force," to "protect[ ]

against both public and private violence." Id. at 2798-99. It

UNITED STATES v. MASCIANDARO 13
also observed that throughout the country’s history, Americans have valued the right not only to be able to prevent the

elimination of militia, but "even more important[ly], for

self-defense and hunting." Id. at 2801.

Considering the constitutionality of a District of Columbia

statute that prohibited private citizens from possessing handguns and required other legal firearms, such as long guns, to

be stored in a fashion that rendered them inoperable, the

Court held that the statute violated the Second Amendment,

stating:

The handgun ban amounts to a prohibition of an

entire class of arms that is overwhelmingly chosen

by American society for that lawful purpose. The

prohibition extends, moreover, to the home, where

the need for defense of self, family, and property is

most acute. Under any of the standards of scrutiny

that we have applied to enumerated constitutional

rights, banning from the home the most preferred

firearm in the nation to keep and use for protection

of one’s home and family, would fail constitutional

muster.

* * *

We must also address the District’s requirement (as

applied to respondent’s handgun) that firearms in the

home be rendered and kept inoperable at all times.

This makes it impossible for citizens to use them for

the core lawful purpose of self-defense and is hence

unconstitutional.

Heller, 128 S. Ct. at 2817-18 (internal quotation marks, footnote, and citation omitted).

But in reaching its holding, the Court did not define the

outer limits of the Second Amendment right to keep and bear

14 UNITED STATES v. MASCIANDARO
arms. It did point out, however, that the right was "not unlimited, just as the First Amendment’s right of free speech was

not." Id. at 2799; see also id. at 2816 (noting that the right

was not "a right to keep and carry any weapon whatsoever in

any manner whatsoever and for whatever purpose"). Illustrating this point, the Court related that a majority of the

19th-century courts that considered prohibitions on carrying

concealed weapons held them to be lawful under the Second

Amendment. Id. at 2816. It summarized:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second

Amendment, nothing in our opinion should be taken

to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill,

or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications

on the commercial sale of arms.

Id. at 2816-17. The Court explained in a footnote that it was

identifying these "presumptively lawful regulatory measures

only as examples." Id. at 2817 n.26.

Not only did the Heller Court not define the outer limits of

Second Amendment rights, it also did not address the level of

scrutiny that should be applied to laws that burden those

rights. It found it unnecessary to do so because the District of

Columbia law under consideration would violate the Second

Amendment "[u]nder any of the standards of scrutiny that we

have applied to enumerated constitutional rights." Id. at 2817.

Two years after deciding Heller, the Supreme Court revisited the Second Amendment in McDonald v. City of Chicago,

130 S. Ct. 3020 (2010), holding that the Second Amendment

was applicable to the States by incorporation into the Fourteenth Amendment. Explaining Heller further, the McDonald

Court stated that "self-defense is the central component" of

UNITED STATES v. MASCIANDARO 15
the individual right to keep and bear arms and that this right

is "fundamental." Id. at 3036, 3038 n.17 (plurality opinion)

(emphasis omitted). McDonald also reaffirmed that Second

Amendment rights are far from absolute, reiterating that

Heller had "assur[ed]" that many basic handgun regulations

were presumptively lawful. In a similar vein, the McDonald

Court noted that the doctrine of "incorporation does not

imperil every law regulating firearms." Id. at 3047.

The 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 a considerable degree

of uncertainty remains as to the scope of that right beyond the

home and the standards for determining whether and how the

right can be burdened by governmental regulation.

NIEMEYER, Circuit Judge, writing separately on this Part

III.B:

B

Invoking Heller’s direct holding, Masciandaro argues that

because he regularly slept in his car, as much as three to five

days a week while traveling on business, his arrest for carrying or possessing a handgun ran afoul of Heller’s core protection of the right "to use arms in defense of hearth and home."

Heller, 128 S. Ct. at 2821. Alternatively, he contends that if

his car is found not to be his home, his arrest nonetheless violated a more general right to carry or possess a handgun outside of the home for self-defense.

I would reject Masciandaro’s argument that his car, even

when he slept in it frequently, was his "home" so as to fall

within the core protection articulated in Heller. In the circumstances where Masciandaro had a residence in Woodbridge,

Virginia, which was only 20 miles from where he was found

sleeping by Sgt. Fornshill, and the place where he was found

sleeping was a public parking place, we need not explore fur16 UNITED STATES v. MASCIANDARO
ther the factors essential to making a place a person’s home

for Heller’s core protection. I would conclude, in the circumstances of this case, that Masciandaro’s car was not his home.

Masciandaro also argues that he possessed a constitutional

right to possess a loaded handgun for self-defense outside the

home. I would agree that there is a plausible reading of Heller

that the Second Amendment provides such a right, at least in

some form.

The Heller Court began by noting that the right predated

the Constitution and always was an important part of individual freedom — one of "the fundamental rights of Englishmen." Heller, 128 S. Ct. at 2798. It found that the right

included the right to "protect[] [oneself] against both public

and private violence," id. at 2799 (emphasis added), thus

extending the right in some form to wherever a person could

become exposed to public or private violence. See also id. at

2797 (finding that the Second Amendment’s operative clause

"guarantee[s] the individual right to possess and carry weapons in case of confrontation"). Because "self-defense has to

take place wherever [a] person happens to be," it follows that

the right extends to public areas beyond the home. See

Eugene Volokh, Implementing the Right to Keep and Bear

Arms for Self-Defense: An Analytical Framework and a

Research Agenda, 56 U.C.L.A. L. Rev. 1443, 1515-18 (2009)

[hereinafter "Implementing the Right for Self-Defense"].

Moreover, the right to keep and bear arms was found to have

been understood to exist not only for self-defense, but also for

membership in a militia and for hunting, id. at 2801, neither

of which is a home-bound activity. Indeed, one aspect of the

right, as historically understood, was "to secure the ideal of a

citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down." Id.

at 2801 (emphasis added).

Consistent with the historical understanding of the right to

keep and bear arms outside the home, the Heller Court’s

UNITED STATES v. MASCIANDARO 17
description of its actual holding also implies that a broader

right exists. The Court stated that its holding applies to the

home, where the need "for defense of self, family, and property is most acute," Heller, 128 S. Ct. at 2817 (emphasis

added), suggesting that some form of the right applies where

that need is not "most acute." Further, when the Court

acknowledged that the Second Amendment right was not

unlimited, it listed as examples of regulations that were presumptively lawful, those "laws forbidding the carrying of firearms in sensitive places such as schools and government

buildings." Id. If the Second Amendment right were confined

to self-defense in the home, the Court would not have needed

to express a reservation for "sensitive places" outside of the

home.

What the Heller Court describes as the general preexisting

right to keep and bear arms for participation in militias, for

self-defense, and for hunting is thus not strictly limited to the

home environment but extends in some form to wherever

those activities or needs occur, just as other Amendments

apply generally to protect other individual freedoms. But I

would not conclude that the right is all-encompassing such

that it extends to all places or to all persons, as the Supreme

Court has explicitly recognized. See Heller, 128 S. Ct. at

2816-17. The complex question of where it may apply outside

the home, and what persons may invoke it, is, however, not

one that we need to fully answer, because it appears sufficiently clear that, in this case, Masciandaro’s claim to

self-defense — asserted by him as a law-abiding citizen sleeping in his automobile in a public parking area — does implicate the Second Amendment, albeit subject to lawful

limitations. And any analysis of it, therefore, requires review

of the government’s interest in regulating firearms through 36

C.F.R. § 2.4(b) under the appropriate level of scrutiny, which

we now address.*

*In his opinion for the court, my good colleague concludes that we need

not decide whether Masciandaro’s Second Amendment rights were impli18 UNITED STATES v. MASCIANDARO
NIEMEYER, Circuit Judge, writing for the court:

C

Masciandaro argues that § 2.4(b) should be analyzed under

strict scrutiny, because at the time of his arrest, he was a

law-abiding citizen who was simply seeking to exercise his

"fundamental" right to self-defense.

Without responding to Masciandaro’s argument directly,

the government asserts that § 2.4(b) satisfies the strict scrutiny

standard, as it is narrowly tailored to advance a compelling

government interest in public safety. In making this argument,

however, we do not understand the government to be taking

a specific position on the level of scrutiny to apply.

cated outside the home. But, I respectfully note, this is not the type of case

where constitutional avoidance is appropriate. First, we are confronted

directly with the contention that 36 C.F.R. § 2.4(b) violated Masciandaro’s

Second Amendment right to possess a firearm for self-defense purposes,

and, having found that § 2.4(b) applies, we cannot duck the issue. See

Bowers v. NCAA, 475 F.3d 524, 550 (3d Cir. 2007) (observing that the

court was "squarely presented with [a] constitutional question" and thus

"obliged to enter the fray," despite the "prudential concerns" expressed by

Justice Brandeis’ concurrence in Ashwander v. TVA, 297 U.S. 288, 347

(1936)). Applying intermediate scrutiny to reject Masciandaro’s claim

does not avoid the constitutional question — it presumes the existence of

the constitutional right and conducts a constitutional analysis to defeat it.

As I have written, I would acknowledge that Masciandaro’s claim, in the

particular circumstances of this case, implicates the Second Amendment,

leading us to reject the claim under the intermediate scrutiny standard. 

Second, I believe that application of the broader Second Amendment

right discussed in Heller to factual settings arising outside the home

involves precisely the kind of "difficult issue[ ]" the Supreme Court prefers to "mature through full consideration by the courts of appeals." E. I.

Du Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977); see

United States v. Mendoza, 464 U.S. 154, 160 (1984). Thus, while determining when and where the Second Amendment applies is every bit as

complex as Judge Wilkinson suggests, I feel it both necessary and important to address the circumstances presented here. 

UNITED STATES v. MASCIANDARO 19
In Heller, the Supreme Court expressly avoided deciding

what level of scrutiny should be applied when reviewing a

law burdening the right to keep and bear arms, see Heller, 128

S. Ct. at 2817, 2821, because it concluded that the District of

Columbia’s handgun ban under consideration before it "would

fail constitutional muster" "[u]nder any of the standards of

scrutiny [traditionally] applied to enumerated constitutional

rights," id. at 2817-18 (emphasis added). The Court did, however, rule out a rational basis review, because that level of

review "would be redundant with the separate constitutional

prohibitions on irrational laws." Id. at 2817 n.27. Moreover,

by listing several "presumptively lawful regulatory measures," id. at 2816-17 & n.26, the Court provided a hint as to

the types of governmental interests that might be sufficient to

withstand Second Amendment challenges, as well as the contexts in which those interests could be successfully invoked.

We have held that intermediate scrutiny should be applied

when reviewing a Second Amendment challenge to 18 U.S.C.

§ 922(g)(9), which prohibits the possession of firearms by a

person convicted of a misdemeanor crime of domestic violence. United States v. Chester, 628 F.3d 673, 677 (4th Cir.

2010). In Chester, officers searching Chester’s home in West

Virginia uncovered a 12-gauge shotgun and a 9mm handgun,

both of which Chester was prohibited from possessing under

§ 922(g)(9) because he had a prior misdemeanor conviction

for domestic violence. In response to Chester’s challenge, we

concluded that the scope of the Second Amendment extended

to Chester’s activity in possessing firearms in the home for

self-defense and that the burden on possession of the firearms

imposed by § 922(g)(9) was subject to intermediate scrutiny.

We explained:

Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we

believe his claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for

20 UNITED STATES v. MASCIANDARO
self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant. Accordingly, we conclude that intermediate scrutiny is more

appropriate than strict scrutiny for Chester and similarly situated persons.

Id. at 682-83; see also United States v. Marzzarella, 614 F.3d

85, 97 (3d Cir. 2010) (applying intermediate scrutiny under

the Second Amendment to 18 U.S.C. § 922(k), which prohibits the possession of firearms with obliterated serial numbers).

In the case before us, Masciandaro was a law-abiding citizen at the time of his arrest, without any criminal record,

whereas in Chester, the defendant was a domestic violence

misdemeanant. On the other hand, Chester was in his home,

where the core Heller right applies, whereas Masciandaro was

in a public park. These different contexts might call for different judicial approaches. See United States v. Yancey, 621 F.3d

681, 683 (7th Cir. 2010). Indeed, as has been the experience

under the First Amendment, we might expect that courts will

employ different types of scrutiny in assessing burdens on

Second Amendment rights, depending on the character of the

Second Amendment question presented. Under such an

approach, we would take into account the nature of a person’s

Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength

of the government’s justifications for the regulation. See

United States v. Skoien, 587 F.3d 803, 809 (7th Cir. 2009),

vacated, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert.

filed, No. 10-7005 (U.S. Oct. 12, 2010). As we stated in Chester:

The Second Amendment is no more susceptible to a

one-size-fits-all standard of review than any other

constitutional right. Gun-control regulations impose

varying degrees of burden on Second Amendment

rights, and individual assertions of the right will

come in many forms. A severe burden on the core

UNITED STATES v. MASCIANDARO 21
Second Amendment right of armed self-defense

should require strong justification. But less severe

burdens on the right, laws that merely regulate rather

than restrict, and laws that do not implicate the central self-defense concern of the Second Amendment,

may be more easily justified.

Chester, 628 F.3d at 682 (quoting Skoien, 587 F.3d at

813-14).

As we observe that any law regulating the content of

speech is subject to strict scrutiny, see, e.g., United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 813

(2000), we assume that any law that would burden the "fundamental," core right of self-defense in the home by a

law-abiding citizen would be subject to strict scrutiny. But, as

we move outside the home, firearm rights have always been

more limited, because public safety interests often outweigh

individual interests in self-defense. See Heller, 128 S. Ct. at

2816 (noting that "the majority of the 19th-century courts to

consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or

state analogues"). Since historical meaning enjoys a privileged interpretative role in the Second Amendment context,

see id. at 2816; Skoien, 587 F.3d at 809, this longstanding

out-of-the-home/in-the-home distinction bears directly on the

level of scrutiny applicable. Indeed, one of the principal cases

relied upon in Heller upheld a state concealed carry ban after

applying review of a decidedly less-than-strict nature. See

Nunn v. State, 1 Ga. 243, 249 (1846) ("But a law which is

merely intended to promote personal security, and to put

down lawless aggression and violence, and to this end prohibits the wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings

of the wearer, by making him less regardful of the personal

security of others, does not come in collision with the Constitution").

22 UNITED STATES v. MASCIANDARO
Were we to require strict scrutiny in circumstances such as

those presented here, we would likely foreclose an extraordinary number of regulatory measures, thus handcuffing lawmakers’ ability to "prevent[ ] armed mayhem" in public

places, see Skoien, 614 F.3d at 642, and depriving them of "a

variety of tools for combating that problem," Heller, 128 S.

Ct. at 2822. While we find the application of strict scrutiny

important to protect the core right of the self-defense of a

law-abiding citizen in his home ("where the need for defense

of self, family, and property is most acute," Heller, 128 S. Ct.

at 2817), we conclude that a lesser showing is necessary with

respect to laws that burden the right to keep and bear arms

outside of the home. Accordingly, we hold that 36 C.F.R.

§ 2.4(b) will survive Masciandaro’s as-applied challenge if it

satisfies intermediate scrutiny — i.e., if the government can

demonstrate that § 2.4(b) is reasonably adapted to a substantial governmental interest. See Chester, 628 F.3d at 683; cf.

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

(applying intermediate scrutiny to content-neutral time, place,

and manner restrictions on speech); Bd. of Trustees of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (applying

intermediate scrutiny to commercial speech in light of its

"subordinate position in the scale of First Amendment values").

D

Perhaps to avoid being required to carry any burden to justify its firearms regulations in national parks, which are properties owned and managed by the government, the

government contends that 36 C.F.R. § 2.4(b) is a law regulating firearms in "sensitive places," as identified in Heller, 128

S. Ct. at 2816-17, and therefore is presumptively constitutional, see id. 2817 n.26. Arguing that Daingerfield Island is

a sensitive place, the government states that

a large number of people, including children, congregate in National Parks for recreational, educaUNITED STATES v. MASCIANDARO 23
tional and expressive activities. Park land is not akin

to a gun owner’s home and is far more analogous to

other public spaces, such as schools, municipal

parks, governmental buildings, and appurtenant

parking lots, where courts have found firearms

restrictions to be presumptively reasonable. Furthermore, as the district court noted, the locations within

the National Parks where motor vehicles travel are

even more sensitive, given that they are extensively

regulated thoroughfares frequented by large numbers

of strangers, including children.

It argues that in these circumstances, the law is presumptively

"narrowly tailored to advance the compelling government

interest" in public safety.

Masciandaro contends that the parking lot at Daingerfield

Island was not a "sensitive place" like a school or governmental building, as referenced to in Heller. He argues:

The George Washington Memorial Parkway, where

[he] was charged with violation of the superseded

[National Park Service] weapons regulation, is a

public road and a major traffic thoroughfare in the

Washington metropolitan area and is not a sensitive

place . . . .

* * *

There is a patchwork of regulations that allow people

to use and possess weapons on NPS land, including

parkways and remote forests and parks across the

United States. Those regulations reflect the [Department of Interior’s] determination that NPS land is

not sensitive, as a general matter. Indeed, the very

same NPS regulation [36 C.F.R. § 2.4] that prohibits

possession of loaded weapons in motor vehicles

indicates that it is lawful to hunt with weapons, use

24 UNITED STATES v. MASCIANDARO
them for target practice, have them in residential

dwellings, use them for research activities, and carry

them for protection in "pack trains" or on trail rides,

all on NPS land.

(Citing 73 Fed. Reg. 74,966, 74,971 (Dec. 10, 2008)). Masciandaro points out that the National Park Service itself "has

explicitly distinguished between the sorts of ‘sensitive places’

mentioned in Heller (schools and government buildings) on

one hand and national parks on the other" when it explained

that "nothing in [36 C.F.R. § 2.4] shall be construed to authorize concealed carry of firearms in any Federal facility or

Federal court facility as defined in 18 U.S.C. § 930." 73 Fed.

Reg. at 74,971 (emphasis added).

These arguments raise the question whether the "sensitive

places" doctrine limits the scope of the Second Amendment

or, instead, alters the analysis for its application to such

places.

The Supreme Court in Heller did state twice that the Second Amendment’s right to bear arms was "not unlimited." See

128 S. Ct. at 2799, 2816. For example, it stated:

Like most rights, the right secured by the Second

Amendment is not unlimited. . . . Although we do

not take an exhaustive historical analysis today of

the full scope of the Second Amendment, nothing in

our opinion should be taken to cast doubt on . . .

laws forbidding the carrying of firearms in sensitive

places such as schools and government buildings.

Id. at 2816-17 (emphasis added). Because of the relation

between the first statement and the examples, one might conclude that a law prohibiting firearms in a sensitive place

would fall beyond the scope of the Second Amendment and

therefore would be subject to no further analysis. But the

Court added a footnote to its language, calling these regulaUNITED STATES v. MASCIANDARO 25
tory measures "presumptively lawful." Id. at 2817 n.26

(emphasis added). The Court’s use of the word "presumptively" suggests that the articulation of sensitive places may

not be a limitation on the scope of the Second Amendment,

but rather on the analysis to be conducted with respect to the

burden on that right.

The arguments of counsel about the meaning of the "sensitive places" language raise difficult questions about the scope

of the Second Amendment and the scrutiny to be given to

government regulations in sensitive places. In Chester, we

explained the ambiguity inherent in these questions:

Having acknowledged that the scope of the Second

Amendment is subject to historical limitations, the

Court cautioned that Heller should not be read "to

cast doubt on longstanding prohibitions" such as

. . . "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." [Heller, 128 S. Ct.] at 2816-17. Heller

described its exemplary list of "longstanding prohibitions" as "presumptively lawful regulatory measures," id. at 2817 n.26, without alluding to any

historical evidence that the right to keep and bear

arms did not extend to . . . the conduct prohibited by

any of the listed gun regulations. It is unclear to us

whether Heller was suggesting that "longstanding

prohibitions" such as these were historically understood to be valid limitations on the right to bear arms

or did not violate the Second Amendment for some

other reason.

Chester, 628 F.3d at 679. In Marzzarella, the Third Circuit

labored over the same ambiguity:

We recognize the phrase "presumptively lawful"

could have different meanings under newly enunciated Second Amendment doctrine. On the one hand,

26 UNITED STATES v. MASCIANDARO
this language could be read to suggest the identified

restrictions are presumptively lawful because they

regulate conduct outside the scope of the Second

Amendment. On the other hand, it may suggest the

restrictions are presumptively lawful because they

pass muster under any standard of scrutiny.

Marzzarella, 614 F.3d at 91.

We need not, however, resolve the ambiguity in the "sensitive places" language in this case, because even if Daingerfield Island is not a sensitive place, as Masciandaro argues, 36

C.F.R. § 2.4(b) still passes constitutional muster under the

intermediate scrutiny standard.

E

In reaching this result, we conclude first that the government has a substantial interest in providing for the safety of

individuals who visit and make use of the national parks,

including Daingerfield Island. Although the government’s

interest need not be "compelling" under intermediate scrutiny,

cases have sometimes described the government’s interest in

public safety in that fashion. See Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997) (referring to the "significant

governmental interest in public safety"); United States v.

Salerno, 481 U.S. 739, 745 (1987) (commenting on the "Federal Government’s compelling interests in public safety").

The government, after all, is invested with "plenary power" to

protect the public from danger on federal lands under the

Property Clause. See U.S. Const. art. IV, § 3, cl. 2 (giving

Congress the power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to

the United States"); Utah Div. of State Lands v. United States,

482 U.S. 193, 201 (1987); Camfield v. United States, 167 U.S.

518, 525 (1897); see also United States v. Dorosan, 350 Fed.

App’x 874, 875 (5th Cir. 2009) (per curiam) (noting that U.S.

Postal Service is authorized under the Property Clause to

UNITED STATES v. MASCIANDARO 27
exclude firearms from its property); Volokh, Implementing

the Right for Self-Defense, 56 U.C.L.A. L. Rev. at 1529-33.

As the district court noted, Daingerfield Island is a national

park area where large numbers of people, including children,

congregate for recreation. See Masciandaro, 648 F. Supp. 2d

at 790. Such circumstances justify reasonable measures to

secure public safety. 

We also conclude that § 2.4(b)’s narrow prohibition is reasonably adapted to that substantial governmental interest.

Under § 2.4(b), national parks patrons are prohibited from

possessing loaded firearms, and only then within their motor

vehicles. 36 C.F.R. § 2.4(b) ("Carrying or possessing a loaded

weapon in a motor vehicle, vessel, or other mode of transportation is prohibited"). We have no occasion in this case to

address a regulation of unloaded firearms. Loaded firearms

are surely more dangerous than unloaded firearms, as they

could fire accidentally or be fired before a potential victim has

the opportunity to flee. The Secretary could have reasonably

concluded that, when concealed within a motor vehicle, a

loaded weapon becomes even more dangerous. In this respect,

§ 2.4(b) is analogous to the litany of state concealed carry

prohibitions specifically identified as valid in Heller. See 128

S. Ct. at 2816-17.

By permitting park patrons to carry unloaded firearms

within their vehicles, § 2.4(b) leaves largely intact the right to

"possess and carry weapons in case of confrontation." Heller,

128 S. Ct. at 2797. While it is true that the need to load a firearm impinges on the need for armed self-defense, see Volokh,

Implementing the Right for Self-Defense, 56 U.C.L.A. L. Rev.

at 1518-19, intermediate scrutiny does not require that a regulation be the least intrusive means of achieving the relevant

government objective, or that there be no burden whatsoever

on the individual right in question. See United States v. Baker,

45 F.3d 837, 847 (4th Cir. 1995). Moreover, because the

United States Park Police patrol Daingerfield Island, the Sec28 UNITED STATES v. MASCIANDARO
retary could conclude that the need for armed self-defense is

less acute there than in the context of one’s home.

Accordingly, we hold that, on Masciandaro’s as-applied

challenge under the Second Amendment, § 2.4(b) satisfies the

intermediate scrutiny standard.

IV

In view of our determination that 36 C.F.R. § 2.4(b) is constitutional under the Second Amendment as applied to Masciandaro, a priori we reject his facial overbreath challenge to

§ 2.4(b).

Without entertaining the novel notion that an overbreath

challenge could be recognized "outside the limited context of

the First Amendment," Salerno, 481 U.S. at 745, we conclude

that a person, such as Masciandaro, to whom a statute was

constitutionally applied, "will not be heard to challenge that

statute on the ground that it may conceivably be applied

unconstitutionally to others, in other situations not before the

Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).

This conclusion "reflect[s] the conviction that under our constitutional system courts are not roving commissions assigned

to pass judgment on the validity of the Nation’s laws." Id. at

610-11; see also Gonzales v. Carhart, 550 U.S. 124, 167-68

(2007) ("It is neither our obligation nor within our traditional

institutional role to resolve questions of constitutionality with

respect to each potential situation that might develop. . . . For

this reason, ‘[a]s-applied challenges are the basic building

blocks of constitutional adjudication’" (quoting Richard H.

Fallon, Jr., As-Applied and Facial Challenges and

Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000)));

Skoien, 614 F.3d at 645 ("[a] person to whom a statute properly applies [cannot] obtain relief based on arguments that a

differently situated person might present"). Accordingly, we

reject his facial challenge.

UNITED STATES v. MASCIANDARO 29
* * *

Because we conclude that 36 C.F.R. § 2.4(b) was properly

applied to Masciandaro’s conduct and that § 2.4(b) is constitutional as applied to the circumstances in this case, we affirm

the judgment of the district court.

AFFIRMED

WILKINSON, Circuit Judge, with whom DUFFY, Senior

District Judge, joins, writing for the court as to Part III.B:

We are pleased to join Judge Niemeyer’s fine opinion with

the exception of Part III.B. In our view it is unnecessary to

explore in this case the question of whether and to what extent

the Second Amendment right recognized in Heller applies

outside the home.

This case underscores the dilemma faced by lower courts

in the post-Heller world: how far to push Heller beyond its

undisputed core holding. On the question of Heller’s applicability outside the home environment, we think it prudent to

await direction from the Court itself. See Williams v. State, 10

A.3d 1167, 1177 (Md. 2011) ("If the Supreme Court, in

[McDonald’s] dicta, meant its holding to extend beyond home

possession, it will need to say so more plainly."); see also

Sims v. United States, 963 A.2d 147, 150 (D.C. 2008).

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, or any

one of a number of other questions. It is not clear in what

places public authorities may ban firearms altogether without

shouldering the burdens of litigation. The notion that

"self-defense has to take place wherever [a] person happens

to be," Eugene Volokh, Implementing the Right to Keep and

Bear Arms for Self-Defense: An Analytical Framework and a

30 UNITED STATES v. MASCIANDARO
Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009),

appears to us to portend all sorts of litigation over schools,

airports, parks, public thoroughfares, and various additional

government facilities. And even that may not address the

place of any right in a private facility where a public officer

effects an arrest. The whole matter strikes us as a vast terra

incognita that courts should enter only upon necessity and

only then by small degree.

There is no such necessity here. We have no reason to

expound on where the Heller right may or may not apply outside the home because, as Judge Niemeyer ably explains,

intermediate scrutiny of any burden on the alleged right

would plainly lead the court to uphold the National Park Service regulation.

The trend toward constitutional avoidance seems, finally, to

be taking hold. Ashwander, at long last, is back. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The seminal case seems to be Pearson v. Callahan,

129 S. Ct. 808 (2009), which cut back on Saucier v. Katz, 533

U.S. 194 (2001), and relieved the circuit courts of the need

and burden of deciding constitutional questions in cases that

could be resolved on narrower grounds. Just as the qualified

immunity inquiry in that case could assume arguendo the violation of a constitutional right, so too can the application of

intermediate scrutiny in this case assume arguendo the existence of a right. Courts take this approach routinely in harmless error determinations as well.

Sometimes saying a little less, rather than a little more, is

a nice way to discharge our primary responsibility to the parties before us of deciding their case. At other times, of course,

the need for clarity and guidance in future cases is paramount,

but in this instance we believe the most respectful course is

to await that guidance from the nation’s highest court.

There simply is no need in this litigation to break ground

that our superiors have not tread. To the degree that we push

UNITED STATES v. MASCIANDARO 31
the right beyond what the Supreme Court in Heller declared

to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in

contexts we cannot foresee. 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.

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. 

If ever there was an occasion for restraint, this would seem

to be it. There is much to be said for a course of simple caution.

32 UNITED STATES v. MASCIANDARO