TriggerFinger


Statement of Issues


The statement of issues outlines the issues that are being appealed, not necessarily all the issues present in the case.  In this case, of course, basically everything is being appealed. 
1. Does the District of Columbia?s total ban on the possession of handguns acquired after 1976 and the possession of functional long guns in the home violate citizens? right to ?keep and bear arms? under the Second Amendment to the U.S. Constitution?
Of course it's the first question here that is the really important one. 
2. Do individuals who have been personally threatened with prosecution by government officials if they act on their sincere and undisputed intent to possess currently prohibited firearms have standing to maintain a pre-enforcement challenge to that prohibition in federal court?
This question is an enabler; the plaintiffs must have standing in order to be able to bring the case at all.  The tricky part is that plaintiffs must have an actual case or controversy in order to have standing to decide an issue; those individuals with undisputed standing to challenge a criminal statute are those charged under it.  Very few respectable firearms enthusiasts are are willing to risk provoking felony charges in order to challenge DC's law; those who get charged with possession of unregistered firearms are generally criminals who would make for a very poor case.

It is harder to establish standing for a pre-enforcement challenge.  However, it's quite possible.  Having read the various cases used in making arguments before the lower court, it seems that in practice the application of that standard varies quite a bit.  It seems to be that establishing standing for a First Amendment challenge is easy, but establishing standing for a Second Amendment challenge is more difficult. To give one example, having BATFE agents inspect your firearm factory on the day the Assault Weapons Ban went into effect is only partially sufficient (one of the resulting claims had standing, another did not).  For First Amendment cases, courts have granted standing to challenge laws that have never been enforced.

To give an idea how important this is, the Seegars case lost at the appellate level solely on the issue of standing.  It doesn't matter if you are completely right on the law; without standing for your particular plaintiffs your suit is doomed to failure.  And this is definitely a close call, because the Second Amendment does not have the same legal recognition as the First with regard to pre-enforcement challenges.  The Parker case does have one big advantage over the Seegars case with regard to standing, but nothing is certain.

This entry was published Tue Jun 20 18:30:14 CDT 2006 by TriggerFinger and last updated 2006-06-20 18:30:14.0. [Tweet]

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