The DC Court of Appeals has issued an opinion in the controversial 2nd Amendment case Seegars v Ashcroft. As I had expected, the ruling went against us on procedural grounds; the court refused to strike down the laws in question because the plaintiffs had not been prosecuted under those laws -- they had filed suit prior to any enforcement action on the basis of their declared intent.
The best way to understand this is to think of the judges splitting legal hairs in an attempt to avoid actually ruling on the 2nd Amendment issue that is the core of the case. Rather than rule on the merits, the judges ruled that none of the plaintiffs have "standing" to bring suit. This is sort of like saying that you can't sue someone for threatening to hit anyone who bothers him; you can only sue them if they actually hit you, or maybe if they wave their fist in your face specifically. It makes sense for individuals... but it makes challenging a criminal statute risky when the person threatening you is the government.
This decision is a mixed blessing for gun owners. It does not support a 2nd Amendment right, but it also does not deny one, and it explicitly reverses the lower court's decision for the one plaintiff in Seegars who could claim standing. As such, the lower court's decision on the merits of the 2nd Amendment (a very unfavorable decision) is expunged, and we're back to asking how, exactly, a challenge to the law can be brought. Most gun owners aren't willing to deliberately put themselves at risk of a felony conviction to challenge this law; and that appears to be exactly what the Appellate Court here is saying we need to do.
Disappointingly, the panel appears to be applying a different standard to the 2nd Amendment than it does to the 1st:
For preenforcement challenges to a criminal statute not burdening expressive rights and not in the form of appeal from an agency decision, our circuit s single post-United Farm Workers case appears to demand more than a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law.
As you can see, things would be somehow different if the burden was being placed on expressive rights rather than gun ownership rights. This may be reflective of the state of 2nd Amendment case law more than the individual judges in this case, because the 1st Amendment standards are well-established while the 2nd Amendment enjoys virtually no protection from the courts at present. While the decision does seem to follow precedent (particularly Navegar), that does not make it correct. It is in my opinion clearly erroneous on this point.
In fact, the decision makes comments about Navegar that I read as hinting at the same view. Navegar is binding precedent for this court, and so the court cannot simply ignore it; the decision notes the "tension" between the standard in Navegar and the standard applied in other situations. Or, in other words, they don't like it either, but they feel they must follow the Navegar precedent.
There is a dissent by Judge Sentelle which makes many of these points. I will reproduce it in another post.
UPDATE: I am tracking the blogosphere response to the ruling.