Fourth Circuit Upholds Ban on Loaded Gun Possession in Cars in National Park

The panel in United States v. Masciandaro split 2-1 in favor of not deciding outright whether the Second Amendment applies outside the home, and unanimously decided not to decide whether national parks fall within the “sensitive places” exception recognized by D.C. v. Heller for places such as schools and government buildings. But it held unanimously that even if the Second Amendment does apply to gun possession in national parks, restrictions on gun possession outside the home should be judge under “intermediate scrutiny,” and this particular restriction passed such scrutiny:

[W]e conclude first that the government has a substantial interest [the first element of the intermediate scrutiny meta-test -EV] 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. The government, after all, is invested with “plenary power” to protect the public from danger on federal lands under the Property Clause. As the district court noted, Daingerfield Island is a national park area where large numbers of people, including children, congregate for recreation. Such circumstances justify reasonable measures to secure public safety.

We also conclude that § 2.4(b)’s narrow prohibition is reasonably adapted to that substantial governmental interest [the second element of the intermediate scrutiny meta-test -EV]. Under § 2.4(b), national parks patrons are prohibited from possessing loaded firearms, and only then within their motor vehicles. 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. 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.” While it is true that the need to load a firearm impinges on the need for armed self-defense, intermediate scrutiny does not require that a regulation be the least intrusive means of achieving the relevant government objective, or that there be no burden whatsoever on the individual right in question. Moreover, because the United States Park Police patrol Daingerfield Island, the Secretary 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.

Thanks to How Appealing for the pointer. For my tentative thoughts on possible approaches to questions such as this one, see 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).