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Bans on Guns in National Parks Upheld

Both Eugene Volokh and Dave Hardy have commentary. The courts can not be counted on to do anything except take the extreme, like total gun bans in the home, off the table. I’m not optimistic about much else.

UPDATE: More from Josh Blackman

UPDATE: Even more here.

14 Responses to “Bans on Guns in National Parks Upheld”

  1. Chas says:

    Markie Marxist sez: “Of course national parks are sensitive places! What if he shot a rock or tree, or what if he shot the ground! He could have damaged the ground in one of our sensitive national parks!”

  2. Heather from AK says:

    I’m no lawyer and I am absolutely not getting this.

    So, Gov’t says guns allowed in Nat’l Parks.

    Guy carries in park.

    Guy gets arrested.

    Courts uphold this?

    Am I missing something, or is this really as absurd as it appears?

  3. terraformer says:

    Crappy ruling all around. They punted on a bunch of important issues and then decide the case, after having punted on those issues, with what they call intermediate scrutiny but which is really rational basis.

    This won’t stand in the end it appears.

  4. terraformer says:

    “The court first decides that the prosecution survives the change to park regulations…”

    Heather, the problem here in this case was the carrying occurred prior to the lifting of the ban. That is in and of itself a problem. Generally prosecutorial discretion would be used to make this go away. Not having read everything yet, I suspect the prosecution of the carrying is being used as a proxy for some other bad behavior the person committed but which is not as easily prosecuted. Or the district court case concluded prior to the lifting of the ban.

  5. Ed says:

    This makes no sense:

    “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.”

    To my brain that’s like saying “X = X and X != X”

    I went to law school with some interesting folks, but none as mentally corrupt as this.

  6. dusty says:

    I wonder if the 4th circuit thinks that a pistol or rifle with a loaded magazine inserted, but without one in the tube, counts as unloaded.

    Trying to read their opinion in good faith, that’s the only conclusion I can come up with.

  7. Heather from AK says:

    terraformer, thanks!

  8. Matt says:

    One additional point:
    This guy was already in violation of his state’s law because his carry permit was expired.
    He was carrying illegally. The National Park issue only came into play because of where he was caught.
    If this scenario were to occur today, he would still be in violation of State Law and subject to arrest/conviction.

    I agree with terraformer.
    Unless a law is specifically written to be retroactive, it is not retroactive.

    I don’t like the anti- self-defense opinions in this decision either, but the guy screwed up big time.

    @Sebastian: why does your title imply that the new law lifting the ban on carry in National Parks is void? From my reading of this decision it seems that since the ban was in effect at the time of the arrest, the guy broke the law. The Coburn Amendment to the CARD act is still in effect; this decision doesn’t affect it.

    It’s still legal to carry in National Parks as long as you follow state law.

  9. terraformer says:

    Well, here is a kicker. (and I still haven’t read the decision so YMMV…) If this guy appeals, he gets to raise the claim that there is a right to carry. If such a right exists and the feds unconstitutionally denied the ability to exercise that right, then this becomes an unlicensed carry crime which is state based. Since he was on federal lands, the state may not have jurisdiction over where he was caught and since the parks regs were only changed to reference state law AFTER the ban was listed, this guy may walk completely… He really needs to appeal.

  10. Sage Thrasher says:

    The court record said that he was arrested for carrying in the National Park before the law was changed and that “post-arrest” changes in the law don’t apply:

    “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.”

    His concealed permit was also expired at the time, and, unfortunately, Virginia requires a permit for carrying a loaded gun in your car (dumb law, but law, apparently.)

    If Masciandaro’s claims had been upheld, it seems it would have meant the courts were superseding VA statutes to say it’s a civil right to carry a concealed, loaded weapon either (1) in your car, or (2) anywhere you want. Personally, I think that would be great, but there’s no way you can read either Heller or McDonald and think that’s what SCOTUS said. Pity.

  11. Diomed says:

    “His concealed permit was also expired at the time, and, unfortunately, Virginia requires a permit for carrying a loaded gun in your car (dumb law, but law, apparently.)”

    Concealed, yes. Though it’s now legal to do so inside of the glove box or console without a permit. Open loaded carry would have been fine too.

  12. AntiCitizenOne says:

    what the hell is this idiocy?

  13. one of the women says:

    Sage Thrasher’s comment is the most correct analysis. The headline is a little misleading. It’s not that we’re back at there being a ban on guns in national parks. Rather, it’s that the man was arrested and charged at a time when what he did was illegal. And so his conviction holds. He was convicted under the law as it was. Unlike the Magnus case in the D.C. Court of Appeals, this is not a case where the underlying law as it was at the time had been ruled unconstitutional. This is a case of the rules changing, but there has been no ruling that the rule as it was before was unconstitutional.

    Masciandaro did something that brought him to the attention of the police. The police then found that he was doing something that the law said was illegal. He was arrested and convicted. After his action (which was found to be illegal), the law changed. But the law was NOT declared unconstitutional; it’s just that the law changed, going forward from the day that the law changed.

    Sage Thrasher’s comment is the most correct analysis.

  14. Old NFO says:

    Sage Thrasher is the most correct, in any case, this guy was a bonehead… sigh….

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