Seegars v Ashcroft: There can be only one... with Standing

Following the oral arguments, the district court issued a memorandum of opinion in the case, and a ruling that dismissed the claims. The short version is that the suit failed. But if you were content with the short version, you wouldn't be here.

Following the oral arguments, the district court issued a memorandum of opinion in the case, and a ruling that dismissed the claims. The short version is that the suit failed. But if you were content with the short version, you wouldn't be here.

The decision ended up being split internally over a point which, frankly, I expected might happen when I read the NRA's initial complaint. It's a basic flaw in the NRA's brief. The DC lawyers missed it entirely, but the Justice Department lawyers picked up on it and made excellent use of the flaw. It shouldn't be a fatal flaw before a neutral judge and considering the facts of the case, but courts will generally take any excuse to avoid ruling on the merits of a 2nd Amendment claim.

Actually, upon reflection, the "flaw" might not be a flaw at all. It fits in perfectly with the NRA's strategy to avoid a 2nd Amendment ruling. But that's ... well, not quite as bad as a conspiracy theory, but it's a bit more convoluted than I'd put faith in as a matter of pure speculation.

What was this deadly flaw? Simple: Only one of the plaintiffs in Seegars had actually applied to register a firearm.

There can be no doubt that if the plaintiffs had tried to register a handgun they would have been denied. Nevertheless the legal principle requires that the attempt be made. This is often applied to cases where discretion is involved, such as a "may-issue" concealed-carry licensing system; the idea is that the law allows for discretion and without applying for the appropriate permit, the plaintiff cannot assert that he would have been denied one had he applied. It also shows up in employment cases and discrimination law, where it becomes much more difficult to win a lawsuit alleging discrimination in hiring practices if the plaintiff has not actually applied for the job and been denied.

Normally, that's a good rule. It's application here is questionable, because the law in DC provides a clear cut-off date for registration (in 1976) and there is no reason to expect the plaintiffs would actually succeed. But it makes a good excuse, and the judge uses it to eliminate the most dangerous portions of the case: the challenge to the DC handgun ban.

The Attorney General asserts that because "[p]laintiffs have neither been prosecuted nor threatened with prosecution under the [challenged] statutes, nor have they even sought to obtain registration or licensing under the statutes[,]" they lack standing to pursue their claims and this case is therefore not ripe for review.

For those keeping score, by the way, this is the NRA's payoff for the Ashcroft gamble. Rather than asserting a collective right under the 2nd, the lawyers on behalf of Ashcroft have asserted that the defendents lack standing under a different legal theory -- much more of a technicality. This isn't much of an improvement, however, since the DC lawyers cheerfully provide a broad collective-right argument.

The Mayor, on the other hand, asserts that the plaintiffs have failed to state a claim upon which relief can be granted because, among other reasons, the Second Amendment does not guarantee individuals a constitutional right to possess firearms.

The fact that the Mayor is deluded does not suffice to dispose of his motion, unfortunately, since a large portion of the court system is similarly deluded.

The judge notes the difference in argument between the two defendants, and includes in his opinion this footnote from the Attorney General:

[i]t is the position of the United States that the Second Amendment 'protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.'

More payoff to the NRA's gambit, but insufficient to carry the case. The opinion continues onwards with an analysis of the standing issue, which interestingly cites cases related to the Assault Weapons Ban. An earlier case challenged the provisions of the assault weapons ban which banned certain firearms manufactured by Intratec by name (the TEC-9 and TEC-DC9). Intratec was found to have standing to sue due to the credible threat of prosecution for continuing to manufacture the specifically named firearms, but were found not to have standing in the matter of the generic "features ban". They had no standing because they were not facing prosecution or specific threat of prosecution, since there were many manufacturers who could make weapons with the banned features.

Whether it is reasonable to expect someone wishing to challenge a law to face prosecution for violating that law if their challenge fails is questionable, but it is an established principle with a reasonable goal. Legislatures sometimes provide for an expedited Constitutional challenge to a questionable law, but that was not provided for in the assault weapons ban. Since most of the plaintiffs in Seegars neither owned handguns, nor sought to register them, nor carried them within the city, they did not face a credible and specific threat of prosecution.

Interestingly, there is a review procedure provided for in the DC Code section in question. The court states that the proper course of action would be to apply for a registration certificate and appeal the denial of that certificate through the procedures laid out in the DC Code, at which time Constitutional arguments could be raised. Accordingly, the case is dismissed because plaintiffs do not have standing (having suffered no actual harm) and the matter is not yet ripe for review... with respect to all but a single plaintiff.

Yep, it's that one pesky plaintiff who actually had registered a firearm (a shotgun) and wished to keep it in her home for self-defense. I consider the inclusion of this plaintiff, and the fact that her claims survived, sheer luck rather than careful design. Of course, given the result, it might be considered bad luck.

The surviving claim involves plaintiff Hailes, who keeps a registered shotgun in her home locked with a trigger lock. She would use the shotgun in self-defense when required, but for the DC Code that requires her to keep the firearm trigger locked or disassembled at all times with no exception for self-defense use.

As a practical matter, she probably would use it for self-defense regardless, under the "better to be judged by 12 than carried by 6 principle -- but of course you can't really say that in court.

The fact that she has registered a shotgun and faces a real risk of prosecution in the event she is forced to defend herself with it enables her claim to proceed to the meat of the issue.

This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

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