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.
2 UNITED STATES v. MASCIANDARO
COUNSEL
ARGUED: Antigone Gabriella Peyton, FINNEGAN, HEN-
DERSON, FARABOW, GARRETT & DUNNER, LLP,
Washington, D.C., for Appellant. Jeffrey Zeeman, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, 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, FINNE-
GAN, HENDERSON, FARABOW, GARRETT & DUN-
NER, 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 con-
viction 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was tried, that regulation was superseded by a more lenient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 sav-
ings 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.
UNITED STATES v. MASCIANDARO 3
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 regu-
lation 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 constitu-
tional 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 fore-
closed by our determination that the regulation is constitu-
tional 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 retriev-
ing 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 weap-
ons in the vehicle. When Masciandaro replied that he had a
loaded handgun in the same bag, Sgt. Fornshill placed Mas-
ciandaro under arrest. Following a search, Fornshill uncov-
4 UNITED STATES v. MASCIANDARO
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 autho-
rizes the Secretary to "make and publish such rules and regu-
lations 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 travel-
ing 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 Mas-
ciandaro was arrested, the Secretary of the Interior proposed
a revision to 36 C.F.R. § 2.4, which was designed to harmo-
nize 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 Ser-
vice, 73 Fed. Reg. 23,388 (Apr. 30, 2008). The proposal
UNITED STATES v. MASCIANDARO 5
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 indi-
vidual was not otherwise prohibited from doing so by federal
law. Id. On December 10, 2008 — six months after Mascian-
daro’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 con-
cealed, 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 magis-
trate 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 Mas-
ciandaro 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 dis-
trict court was pending, the District Court for the District of
Columbia issued a preliminary injunction, blocking enforce-
ment of newly promulgated § 2.4(h), because the Department
of the Interior had failed to conduct the required environmen-
6 UNITED STATES v. MASCIANDARO
tal impact analysis. See Brady Campaign to Prevent Gun Vio-
lence 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 rein-
stated § 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 prohib-
ited by law from possessing the firearm;
and
(2) the possession of the firearm is in com-
pliance 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 argu-
ment for application of § 2.4(h) in lieu of § 2.4(b) and
affirmed the magistrate judge’s ruling. United States v. Mas-
ciandaro, 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
UNITED STATES v. MASCIANDARO 7
court rejected Masciandaro’s facial challenge because he had
not "demonstrat[ed] from actual fact" that a substantial num-
ber 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) (quot-
ing 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 pro-
hibited such conduct. The question that arises is whether legal
developments postdating his arrest undermined the govern-
ment’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 Mas-
ciandaro’s argument. In Hark, the defendants violated beef
pricing regulations promulgated during World War II pursu-
ant 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
8 UNITED STATES v. MASCIANDARO
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 vio-
lations is absent in the case of a prosecution for vio-
lation of a regulation issued pursuant to an existing
statute which expresses a continuing policy, to
enforce which the regulation was authorized. Revo-
cation of the regulation does not repeal the statute;
and though the regulation calls the statutory penal-
ties 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 prosecu-
tion 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 objec-
tive. 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 regula-
tions, and both set forth specific penalties for violations. Com-
UNITED STATES v. MASCIANDARO 9
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 Emer-
gency Price Control Act. This argument, however, is unper-
suasive because it treats what are actually differences in
degree as differences in kind. Both laws attach specific crimi-
nal penalties to actions that violate regulations issued by an
Executive Branch official. They differ, however, in the speci-
ficity 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 Secre-
tary 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 con-
clude, 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 under-
lying 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
10 UNITED STATES v. MASCIANDARO
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 [Inte-
rior] (through the Park Police and local United States Attor-
neys’ offices) shall not ‘enforce any regulation that prohibits
an individual from possessing a firearm including an assem-
bled 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 lia-
bility incurred under such statute, unless the repeal-
ing Act shall so expressly provide, and such statute
shall be treated as still remaining in force for the pur-
pose 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
UNITED STATES v. MASCIANDARO 11
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 pro-
vides 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 govern-
ment 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.
12 UNITED STATES v. MASCIANDARO
In sum, we conclude that Masciandaro was properly prose-
cuted 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 "water-
shed" decision in Dist. of Columbia v. Heller, 128 S. Ct. 2783
(2008), guaranteed to him the right to possess and carry weap-
ons in case of confrontation and thus protected him from pros-
ecution under § 2.4(b) for exercising that right in a national
park area. He explains that
[H]e travels extensively because of his small busi-
ness 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 valu-
able 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 posses-
sion 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,
UNITED STATES v. MASCIANDARO 13
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 descrip-
tions 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 regula-
tory measure; and the application of our conclusions to Mas-
ciandaro’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 his-
torical 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 pre-
dated 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 prin-
ciples,’ not as members of a fighting force," to "protect[ ]
against both public and private violence." Id. at 2798-99. It
14 UNITED STATES v. MASCIANDARO
also observed that throughout the country’s history, Ameri-
cans 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 hand-
guns 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, foot-
note, 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
UNITED STATES v. MASCIANDARO 15
arms. It did point out, however, that the right was "not unlim-
ited, 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"). Illustrat-
ing 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 histori-
cal 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 sensi-
tive places such as schools and government build-
ings, 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 revis-
ited 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 Four-
teenth Amendment. Explaining Heller further, the McDonald
Court stated that "self-defense is the central component" of
16 UNITED STATES v. MASCIANDARO
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 carry-
ing or possessing a handgun ran afoul of Heller’s core protec-
tion 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 vio-
lated a more general right to carry or possess a handgun out-
side 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 circum-
stances 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 fur-
UNITED STATES v. MASCIANDARO 17
ther the factors essential to making a place a person’s home
for Heller’s core protection. I would conclude, in the circum-
stances 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 individ-
ual freedom — one of "the fundamental rights of English-
men." 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 weap-
ons 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 oppres-
sive 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
18 UNITED STATES v. MASCIANDARO
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 prop-
erty 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 pre-
sumptively lawful, those "laws forbidding the carrying of fire-
arms 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 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.*
*In his opinion for the court, my good colleague concludes that we need
not decide whether Masciandaro’s Second Amendment rights were impli-
UNITED STATES v. MASCIANDARO 19
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 pre-
fers 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 deter-
mining when and where the Second Amendment applies is every bit as
complex as Judge Wilkinson suggests, I feel it both necessary and impor-
tant to address the circumstances presented here.
20 UNITED STATES v. MASCIANDARO
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, how-
ever, 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 mea-
sures," 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 con-
texts 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 vio-
lence. 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 fire-
arm in his home for the purpose of self-defense, we
believe his claim is not within the core right identi-
fied in Heller — the right of a law-abiding, responsi-
ble citizen to possess and carry a weapon for
UNITED STATES v. MASCIANDARO 21
self-defense — by virtue of Chester’s criminal his-
tory as a domestic violence misdemeanant. Accord-
ingly, we conclude that intermediate scrutiny is more
appropriate than strict scrutiny for Chester and simi-
larly 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 prohib-
its the possession of firearms with obliterated serial numbers).
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). As we stated in Ches-
ter:
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
22 UNITED STATES v. MASCIANDARO
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 cen-
tral 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 "funda-
mental," 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 con-
cealed weapons were lawful under the Second Amendment or
state analogues"). 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) ("But a law which is
merely intended to promote personal security, and to put
down lawless aggression and violence, and to this end prohib-
its the wearing of certain weapons in such a manner as is cal-
culated 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 Consti-
tution").
UNITED STATES v. MASCIANDARO 23
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. 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").
D
Perhaps to avoid being required to carry any burden to jus-
tify its firearms regulations in national parks, which are prop-
erties owned and managed by the government, the
government contends that 36 C.F.R. § 2.4(b) is a law regulat-
ing firearms in "sensitive places," as identified in Heller, 128
S. Ct. at 2816-17, and therefore is presumptively constitu-
tional, see id. 2817 n.26. Arguing that Daingerfield Island is
a sensitive place, the government states that
a large number of people, including children, con-
gregate in National Parks for recreational, educa-
24 UNITED STATES v. MASCIANDARO
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. Further-
more, 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 governmen-
tal 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 [Depart-
ment 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
UNITED STATES v. MASCIANDARO 25
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)). Mas-
ciandaro 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 autho-
rize 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 Sec-
ond 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 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 regula-
26 UNITED STATES v. MASCIANDARO
tory 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.
The arguments of counsel about the meaning of the "sensi-
tive 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 sen-
sitive places such as schools and government build-
ings." [Heller, 128 S. Ct.] at 2816-17. Heller
described its exemplary list of "longstanding prohi-
bitions" as "presumptively lawful regulatory mea-
sures," 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 under-
stood 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 enunci-
ated Second Amendment doctrine. On the one hand,
UNITED STATES v. MASCIANDARO 27
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 "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.
E
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
28 UNITED STATES v. MASCIANDARO
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 rea-
sonably 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 transpor-
tation 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 fire-
arm 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 regu-
lation 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 Sec-
UNITED STATES v. MASCIANDARO 29
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 con-
stitutional under the Second Amendment as applied to Mas-
ciandaro, 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 con-
stitutional 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 prop-
erly applies [cannot] obtain relief based on arguments that a
differently situated person might present"). Accordingly, we
reject his facial challenge.
30 UNITED STATES v. MASCIANDARO
***
Because we conclude that 36 C.F.R. § 2.4(b) was properly
applied to Masciandaro’s conduct and that § 2.4(b) is consti-
tutional 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 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
UNITED STATES v. MASCIANDARO 31
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.
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). 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 vio-
lation of a constitutional right, so too can the application of
intermediate scrutiny in this case assume arguendo the exis-
tence of a right. Courts take this approach routinely in harm-
less 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 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
32 UNITED STATES v. MASCIANDARO
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.