What about administrative remedies?

There is a substantial amount of time devoted to the issue of "administrative remedies culminating in judicial review". In practice, that means that, according to the government's argument, the plaintiffs should have tried to register a handgun, been denied, and appealed the denial as provided for in the law -- the final steps of which involve judicial review of the denial.

There are two reasons that I can see for not taking the administrative path to judicial review. The first is simple: others tried it, shortly after the law was passed, and lost. The outcome of the "administrative review" would be foreordained, and the judicial review scarcely less so given binding precedent in that court.

The second reason is a little more complex. The core question is jurisdictional; the District of Columbia lives in a strange legal realm somewhere between a state and an arm of the Federal Government. The incorporation doctrine, and the 2nd Amendment's second-class status under that doctrine, suggests that a 2nd-Amendment claim could not be asserted successfully against a State in State court; the State would not be bound by it (until, and unless, the Supreme Court incorporated the 2nd Amendment in a manner similar to the 1st Amendment and some others). Since in some ways Congress has provided a court system for the District that it wishes to treat as a State court, it can be argued that the District courts are not bound by an unincorporated 2nd Amendment.

The counterargument is that the District is a Federal territory, and it's court systems and laws are derived from the federal legislative authority. Under this theory the 2nd Amendment binds the District legislature and court systems just as strongly as it does the three branches of the United States government. Bringing suit in federal court rather than following the administrative procedures in District court ensures that the court cannot hide behind the unincorporated status of the 2nd Amendment; it's a question of federal law, brought in federal court, and bound by the federal Constitution.

It is a minor weakness in the case for standing, but only a minor one. The government has raised the issue before (in the oral arguments), but the three-judge panel ignored that line of reasoning when coming to their decision.

Posted on 2005-06-17 04:26:20.0 by matthew@triggerfinger.org

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