We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We think such an approach is doctrinally quite unsound. The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim. See Warth v. Seldin, 422 U.S. 490, 501-02 (1975) (assuming factual allegations and legal theory of complaint for purposes of standing analysis). We have repeatedly recognized that proposition. See Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C. Cir. 2003); Am. Fed'n of Go't Employees, AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982). "Indeed, in reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." Waukesha, 320 F.3d at 235 (citing Warth, 422 U.S. at 502). This is no less true when, as here, the merits involve the scope of a constitutional protection.
I think the 9th Circuit was eager to get a collective-rights opinion on the books following Emerson, perhaps hoping to provoke Supreme Court review, or simply to reassert their view of the law. If provoking review was the 9th's plan in ruling the way they did in Silviera, it almost worked; the Supreme Court conferenced on the issue and demanded an opinion from one of the parties involved before declining to hear the case. That means there were probably at least three votes for reviewing Silviera before Alito and Roberts, even on a case that would involve questions of 14th Amendment incorporation.
I hope and suspect that our chances are better with Roberts and Alito on the court.
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