The Fourth Circuit in UNITED STATES v. MASCIANDARO, in somewhat of a split opinion, applied intermediate scrutiny to affirm the conviction of a person arrested with a loaded firearm in a National Park in Alexandria, Virginia. Judge Niemayer wrote for the Court, except for one portion, which Judge Wilkinson, joined by a senior District Judge sitting by designation, departed. That part of the opinion, discussing whether it was appropriate to reach at issues the Court in Heller left unresolved was appropriate, was seriatim.

From the beginning of the Court’s opinion:

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 regula- tory measure; and the application of our conclusions to Mas- ciandaro’s circumstances. … 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.

The Court, following their precedent in U.S. v. Chester applied intermediate scrutiny:

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 vio- lence. United States v. Chester, 628 F.3d 673, 677 (4th Cir. 2010).

The Court addressed the fact that the defendant had no criminal record:

In the case before us, Masciandaro was a law-abiding citi- zen 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 differ- ent 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 inter- ests 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).

I thought Heller rejected any freestanding balancing tests? This is what I described in the Constitutionality of Social Cost as citing Scalia but relying on Breyer. This is what the Skoien court did, and now the Fourth Circuit adopted this standard.

The Court tried to wedge history into the analysis, as an almost secondary thought, and it is not particularly useful, or persuasive:

Since historical meaning enjoys a privi- leged 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)

The Court notes that laws burdening the “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.” This is the precise dynamic I identified in the Constitutionality of Social Cost. Concerns for social cost (public safety interests) are weighed against the individual liberty interests.

Further, the Court noted that to apply strict scrutiny would make it harder for law enforcement to keep people safe:

Were we to require strict scrutiny in circumstances such as those presented here, we would likely foreclose an extraordi- nary number of regulatory measures, thus handcuffing law- makers’ 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.

The Court, citing Salerno, focused on the state’s ability to keep people safe:

In reaching this result, we conclude first that the govern- ment 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 Net- work, 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 “Fed- eral 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 Regula- tions 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  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.

Don’t forget about the children!

Based on this social cost calculus, the Court applied intermediate scrutiny (from Ward v. Rock Against Racism).

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 substan- tial 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 val- ues”).

The Court opined whether the parking lot the Defendant was arrested in (which was within a National Park) should be considered a “sensitive place.”

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 . . . Because of the relation between the first statement and the examples, one might con- clude 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 regulatory measures “presumptively lawful.” Id. at 2817 n.26 (emphasis added). The Court’s use of the word “presump- tively” 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.

After citing standards from other courts, the Fourth Circuit declined to resolve this issue:

We need not, however, resolve the ambiguity in the “sensi- tive places” language in this case, because even if Dainger- field 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.

Here is the crux from Niemayer’s separate opinion:

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. … 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. … 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 suffi- ciently clear that, in this case, Masciandaro’s claim to self-defense — asserted by him as a law-abiding citizen sleep- ing in his automobile in a public parking area — does impli- cate 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.*

Here is a chunk from Wilkinson’s seriatim opinion:

On the question of Heller’s applica- bility 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

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 out- side 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 Ser- vice regulation.

In classic WIlkinson minimalism, he praises judicial restraint, and constitutional avoidance:

The trend toward constitutional avoidance seems, finally, to be taking hold. Ashwander, at long last, is back. See Ash- wander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., con- curring). . . .  Sometimes saying a little less, rather than a little more, is a nice way to discharge our primary responsibility to the par- ties 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

the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular gover- nance, 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 unspeak- ably 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 exponen- tially 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 cau- tion.

I will blog more about Wilkinson’s position later, as this directly implicates my article.