Did we lose one, or am I missing something?

[kharris]

Thanks for the explanation post, that does make me feel better about the denial.

 

[MirandaB]

Masciandaro Review - 2nd Attempt

Okay, here goes another try.

First let me say that I have never represented a litigant in a RKBA case, nor have I done any substantive research into RKBA cases, past or present. I haven’t followed the various RKBA cases closely and had not heard of the Masciandaro case until your post yesterday.

I went to what is probably the most current and accurate summary of the case – namely, the Masciandaro cert petition itself, and I can offer some perspectives as to the merits of the case based upon its presentation. There are also some questions and/or issues that are not mentioned in the petition (probably for tactical reasons) and which I hope will be raised in Masciandaro’s appeal brief and oral arguments.

First, let me say that the cert petition did an exceptional job of presenting the salient issues in a logical, orderly manner. Masciandaro’s counsel has made it easy to understand the process of the case thus far, and the justices should have an easy time of determining whether they want to hear the case. If they decline to grant cert to the case it will NOT be because it was presented in a confusing or misleading way.

As for the substance of the petition, Masciandaro narrows the focus to the one question that the lower courts have gotten stuck on. Specifically, does the Heller decision apply only to one’s RKBA in the home or does it extend farther? According to Masciandaro, all lower courts ruling on this issue (except one) have ruled that Heller recognizes one’s right to possess a firearm in one’s home only. The cert petition’s focus on this aspect of Heller and its interpretation in the lower courts is proper for this stage of the case. After all, the one goal at the moment is to convince the SCOTUS to grant cert. Any discussion beyond this point can only serve to confuse the issue and is superfluous at this juncture.

One aspect of the Heller decision and its interpretation that I sincerely hope will be raised if the SCOTUS grants Masciandaro a hearing is what, exactly, constitutes one’s home for the purposes of RKBA?

Before we continue, a quick lesson on advisory opinions:

The SCOTUS has previously ruled that the Constitution’s Article 3 “case or controversy” requirement prohibits federal courts from issuing opinions based on hypotheticals and/or that are only advisory in nature. In order for a case to be heard in federal court, the parties must have a tangible interest at stake in the matter, the issue presented must be "mature for judicial resolution" (or ripe), and a justiciable issue must exist for the duration of the case.

Once a case meets the case or controversy threshold, that doesn’t give the courts free rein to address other factors or hypothetical variations not extant in facts of the case before it. Any portion of an otherwise legitimate opinion that is only advisory will be considered “dicta” and will have no force or effect.

What this boils down to for the purpose of Masciandaro - and other RKBA cases whose facts differ substantially from those in Heller - is that the lower courts are strictly reading Heller as being applicable only to Heller-like situations involving regulation/prohibition of gun ownership in one’s home. In Masciandaro’s case the court specifically declined to apply Heller to a “motor vehicle” as a category.

There is what I believe to be a huge area within Heller that is ripe for review as it relates to Heller and other cases. Namely, while Heller addresses the RKBA in one’s home, I don’t think it ever actually defines the boundaries of what actually constitutes one’s home or residence. (Even if it had, however, the lower courts would be free to disregard any discussion regarding residence descriptions that varied widely from the circumstances of Heller as dicta, and we would be in the same place as we are now.)

Here is the logic of one of the arguments that I hope will bridge the gap between Heller and Masciandaro:

While most American live in residences that are fixed in nature, such as apartments, condos, and freestanding homes. A significant part of our population, however, reside in homes that are mobile in nature, such a motorhome (a.k.a. a motor veicle). These motor vehicles often have all of the typical amenities of the average home or apartment – sometimes more. I think it would be difficult for anyone NOT to apply Heller to the case of someone living in a 40-foot Bluebird Bus motorhome and find that the residents of such motorhome do have the RKBA. If Heller is applicable to such a situation – and I cannot think of a rational reason why it would not be – then Heller is, in fact, applicable to at least some kinds of motor vehicles.

This raises several questions. First, if Heller is not applicable to a motorhome that is being lived in, why not? What rational basis would justify making a distinction against motorhomes?

Assuming that no distinction can be made, then the question arises as to what factors must exist for a motor vehicle to be counted as a home for the purposes of Heller ant the RKBA? If a 40-foot fully appointed motorhome qualifies, does a 20-footer? A 15-footer? How about a Class-C van-body motorhome?

Would a motorhome exception to Heller even be related to the size of the vehicle, or would it be based on the activity within? For example, if one can sleep overnight in the vehicle (as Masciandaro was doing in his car) would that to qualify? Would there have to be other amenities before the RKBA would be recognized? If so, what would the minimum threshold be?

Perhaps there would be a residency requirement that would keep Heller from applying until one had lived in their vehicle for a certain minimum length of time. If so, how long would be sufficient to establish vehicle residency?

All of the factors that mitigated in favor of recognizing Heller’s RKBA in his home are present in Masciandaro – and more strongly. Heller lived in a house or apartment, and he had a certain degree of spatial buffer (yard, walls, doors) between himself and someone who might threaten him. Masciandaro was separated from potential assailants by only the thickness of his car window.

Heller had room to retreat from attack; he could move to another part of his dwelling. Masciandaro had nowhere to go.

Heller had at least the opportunity for a landline hooked into the 911 police emergency response and address location system in case of attack. Masciandaro had, at best, a cell phone without any 911 locating ability.

I think the lower court’s refusal to extend the holding in Heller to the circumstances of Masciandaro is shortsighted and overly reliant on the literal text of Heller. It is clear that in today’s society one’s home can take many forms, and where one is “living” can vary from day to day. One's RKBA in their own home should not depend upon extraneous, immaterial, and arbitrary factors.

I hope the SCOTUS grants Masciandaro cert and that his counsel make the above arguments, in addition to any others they have considered. I have to say that Maqsciandaro’s cert petition is one of the clearest and most cogent I have read in a very long time.

Sorry for the length of this post. I tried to keep it short, but I am used to being paid by the word and old habits die hard.

 

[Boxcab]

Thanks!

{I'm really liking this MirandaB person}

 

[MD Redleg]

Very good explanation, and much appreciated!

 

[frdfandc]

I've been reading the posts on Heller and Masciandaro, and I have to say that Miranda has made it much easier for me to understand what is going on.

Thanks

 

[OleCuss]

I really do appreciate Miranda's analysis of the cert arguments/qualifications/whatever you call them for Williams and Masciandaro.

 

[hvymax]

Look out Patrick and Krucam.

 

[Hopalong]

Look out Patrick and Krucam.

Naw, I'm sure they would welcome, as we all would, another legal eagle analyzing this stuff.

Very informative posts MirandaB, thank you very much!

 

[Garet Jax]

I would like to provide some context into the Williams decision, but first you should know my bona fides.

I was a civil rights attorney in private practice for 10 years (before closing my practice to invest my energies full-time into my company, Just Right Carbines). I did a LOT of appellate work, primarily in the federal courts but in the state courts as well, representing the constitutional civil rights claims of individual plaintiffs - like Williams. I took several cases before the 6th US Circuit Court of Appeals. In one case I won a landmark ruling that was the first ever in the nation. I also succeeded, among other things, in getting a municipal ordinance in the city of Youngstown, Ohio, ruled as an unconstitutional restriction of my client's right of free speech. It took winning 3 separate cases brought against my client in as many years before the court finally agreed with me that the city was unconstitutionally persecuting my client based solely on, and in retaliation for, his publicly expressed negative opinions of some officials in city government.

I viewed most of the oral argument in the State v. Williams Court of Appeals case - enough to know pretty well why the COA ruled against Williams (and why the SCOTUS denied cert). Here are my observations:

1) Williams's first mistake was failing to put the State to its burden of denying him a permit. Had he done so he could have demonstrated that he made every attempt to comply with the law, only to be turned down because the law was unconstitutionally overbroad, vague, etc. His subsequent arrest for carrying would have been more challengeable on appeal. Failing to make the application in the first place - even though applying may well have been pointless - relieved the State from having to deny him a permit and proved justification for the denial. The courts seldom accept at face value the claim that someone didn't file an application/petition/request on the grounds that they would have been denied anyway regardless of qualification. Evidence of the pointlessness of such request must be overwhelming, and must be based upon hard evidence that either proves the matter or leads to the inescapable inference. No such evidence other than the general reputation or perception of the permitting agency was referenced in oral argument.

2) Williams appeared to have "unclean hands" in the matter, having removed a mislaid (as opposed to lost) backpack from the bus and been seen digging through its contents while waiting for a transfer connection at the bus stop. It did not appear that Williams was ever charged with anything in connection with the removal of the backpack. Nevertheless, it seemed as though some of the justices imputed a degree of untrustworthiness to his actions. It would have been one thing if he had found the backpack along the side of the road, in which case "finders keepers" might have applied. However, the backpack was apparently inadvertently left on the bus where, presumably, if might have been located when the owner later remembered their error. Finders keepers does not apply to items that are merely mislaid because the owner may well return to claim them. Of Williams's three errors affecting the case, I think this one was the least problematic, but some of the justices' negative reaction to it was nevertheless discernible.

3) Williams acted guilty when he hid his gun in the nearby bushes. I understand why he did it, but his actions tacitly acknowledge both that he knew the law prohibited him from carrying his gun at that place and time, and that he was in violation of the law. It would have been better for him to have retained possession of the gun and informed the officer when approached that he was in possession of a gun that he was in the immediate process transporting from one residence to another.

Williams's case essentially asked the COA to throw out wholesale the entire statute under which he was convicted. Courts are loath to rule even a part of a law unconstitutional unless given no other choice. Unfortunately, the circumstances of Williams's case gave them lots of ways to rule otherwise. As someone previously pointed out this case was a longshot, a hail mary, and it is no surprise that the COA ruled as they did.

The SCOTUS is even more stringent in the kinds of cases they will accept for cert. Cases that make it to the High Nine have to be very narrowly focused on one issue of law, and for a case to receive cert a minimum of 4 of the justices must agree to hear it.

My take is that, apart from giving the Brady bunch a pretext upon which to issue a press release, State v. Williams is of no real value in either direction to anyone except Williams.

I hope this helps,

Miranda

I am no lawyer, but I did stay at the holiday inn express last night.

I would add to your wonderful analysis that William's lawyer was an absolute tool. I watched the entire hour recording when he presented to the MD justices. He looked, sounded and carried himself so much less capably then Gensler. He was so unprepared that he was constantly rifling through his papers and saying fillers to give him a chance to find what he was looking for. This made his arguments come across as disjointed and hodge podge.

So much so that I agreed with Gensler at the end of the hour too.

 

[300RUM]

Thanks!

{I'm really liking this MirandaB person}

+1

 

[Pushrod]

MirandaB, welcome to the forums and thank you for your excellent analysis of these two cases.