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Fourth Circuit upholds handgun possession conviction that might not have been possible under intervening superseding law

Mar 24, 2011 Fourth Circuit upholds handgun possession conviction that might not have been possible under intervening superseding law

Image from the Government Printing Office’s website.

Sean Masciandaro was a victim of circumstance, or more precisely a victim of timing.

Arrested for handgun possession on federal park land in Alexandria Virginia, Masciandaro learned pretrial that the applicable national park regulations applying to his case had been amended post-arrest date to conform handgun prohibitions to state law. U.S. v. Masciandaro, ___ F.3d ___ (4th Cir., March 24, 2011). It is unclear how much relief the new national park regulation would have provided, in that after arrest Mr. Masciandaro produced not a current concealed carry permit, but an expired one.

In any event, the Fourth Circuit held that Mr. Masciandaro could not avail himself of the favorable regulatory change that took place between his arrest and trial date. Moreover, the Fourth Circut refused his Second Amendment challenge, including his arguments under D.C. v. Heller, 128 S.Ct. 2783 (2008).

As you read the three-judge panel opinion in Masciandaro,  you will notice at page 16 of the slip opinion at section III.B. a notification that "NIEMEYER, Circuit Judge, writing separately on this Part", and at page 19 for section III.C. that he has resumed writing the opinion of the Court. Page 30 explains that Judge Wilkinson is writing for the Court, joined by Judge Duffy, in saying that they do not join Judge Niemeyer’s Part III.B., because: "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." Masciandaro

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