A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.
They’ve been on a losing streak in the lower courts.
The activists found the holy grail in 2008 when the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller said the Second Amendment guaranteed an individual right to own a firearm unconnected to military service. The court followed it up with McDonald v. Chicago two years later, holding that the amendment applies not just to gun control laws passed by Congress but to local and state laws as well.
The decisions were seen as a green light to challenge gun restrictions across the country, and the lawsuits have come raining down — more than two a week, according to the anti-gun Brady Center to Prevent Gun Violence.
But it is the Brady Center that is crowing about the results.
“Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence,” the center said in a report optimistically titled “Hollow Victory?”
Even those challenging gun restrictions acknowledge that the courts have been unwilling to expand upon the basic right that most people agree Heller bestowed: the ability to keep a handgun in one’s home for self-defense purposes.
The subsequent rulings “clearly highlight the struggles lower courts are having after receiving the Supreme Court’s guidance in Heller and McDonald,” said Antigone Peyton, an Alexandria lawyer. “They’re afraid to be out front on the law.”
As Maryland’s highest court, the Court of Appeals, put it: “If the Supreme Court . . .meant its holding to extend beyond home possession, it will need to say so more plainly.”
If the court has more to say, two men from opposite sides of the Potomac River are hoping it will accept their cases in order to do so.
In the Maryland case, Charles F. Williams Jr. is challenging his 2008 conviction in Prince George’s County of violating the state’s prohibition on wearing, carrying or transporting a firearm in public without a permit. Williams had his legally acquired gun in a bag as he traveled from his girlfriend’s home to his own.
Williams acknowledges that he had not applied for a permit. But his attorney, Stephen Halbrook, says that shouldn’t matter: the Maryland law is so restrictive that it “basically says ordinary people can’t get one.” He argues in his petition that the law violates the Supreme Court’s “analyses and plain statements in Heller and McDonald that the right to bear arms exists outside the home.”
Peyton represents Sean Masciandaro, a reptile wrangler from Woodbridge, who was convicted of violating a ban on having a loaded firearm in a vehicle on national parkland. Masciandaro, who puts on educational demonstrations as owner of Raging Reptiles, said he was exhausted from traveling when he pulled off George Washington Memorial Parkway to take a nap at Daingerfield Island near Reagan National Airport.
A Park Police officer noticed him illegally parked, woke Masciandaro and, seeing a knife under his seat, asked if he had other weapons. Masciandaro said there was a loaded handgun in a bag in his trunk. (Masciandaro said the gun was for protection from people, not his animals, which travel separately.)
Masciandaro was convicted and paid a fine but argues in his petition to the court: “If there is a Second Amendment right outside the home, it surely applies to law-abiding citizens carrying handguns for self-defense while traveling on public highways.”
He is appealing a decision of the U.S. Court of Appeals for the 4th Circuit, where Masciandaro had the misfortune of pleading his case before a panel that included Judge J. Harvey Wilkinson III. Wilkinson is a conservative stalwart, but has criticized the Heller decision as an example of judicial activism.
He was unequivocal that any expansion of the right in Heller would have to come from the Supreme Court.
“This is serious business,” Wilkinson wrote. “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 was clear from the beginning that much litigation would be needed to define the contours of Justice Antonin Scalia’s majority opinion in Heller.
In key parts, it is a half-empty, half-full decision that allows both sides in the bitterly contested fight over gun rights to indulge in wishful thinking.
Gun-control advocates point to Scalia’s instruction that “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.”
But Halbrook, Williams’s lawyer, says that “obviously means that the right to bear arms includes the carrying of firearms in non-sensitive places.”
Although the Brady Center trumpets Scalia’s finding that there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” the Second Amendment Foundation takes that as confirmation that “there is a right to carry at least some weapons, in some manner, for some purpose.”
The latter argument is in a brief supporting Masciandaro’s appeal written by Alan Gura, who argued the Heller case. He said the case provides a perfect chance to “clarify” for recalcitrant lower courts that the Second Amendment “applies beyond the threshold of one’s home.”
But if neither Williams nor Masciandaro strikes the court as the right opportunity for the next round of Second Amendment jurisprudence, Gura assures that there are more cases on the way.