Still, we have not always been so clear...

Still, we have not always been so clear on this point.
Although we recognized in Claybrook v. Slater, 111 F.3d 904 (D.C. Cir. 1997), that it was not necessary for a plaintiff to demonstrate that he or she would prevail on the merits in order to have Article III standing, the rest of our discussion seems somewhat in tension with that proposition. We did recognize that in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), when the Supreme Court used the phrase "legally protected interest" as an element of injury-in-fact, it made  clear it was referring only to a "cognizable interest."  Claybrook, 111 F.3d at 906-07. The Court in Lujan concluded that plaintiffs had a "cognizable interest" in observing animal species  without considering whether the plaintiffs had a legal right to do so. Id. (citing Lujan, 504 U.S. at 562-63). We think it plain the Lujan Court did not mean to suggest a return to the old "legal right" theory of standing rejected in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-54 (1970), because it cited Warth, inter alia, as precedent for the sentence which included the phrase "legally protected interest." Lujan, 504 U.S. at 560. Rather, the cognizable interest to which the Court referred would distinguish, to pick one example, a desire to observe certain aspects of the environment from a generalized wish to see the Constitution and laws obeyed.   Indeed, in Judicial Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C. Cir. 2005), Judge Williams wrote an extensive concurring opinion (not inconsistent with the majority opinion) in which he persuasively explains that the term "legally protected interest," as used in Lujan, could not have been intended to deviate from Warth's general proposition that we assume the merits when evaluating standing. Id. at 363-66.

In Claybrook, we went on to say, quite inconsistently, that "if the plaintiff's claim has no foundation in law, he has no legally protected interest and thus no standing to sue." Claybrook, 111 F.3d at 907. We concluded that plaintiff lacked standing, however, because the government agency in that case had unfettered discretion to take the action it did, and therefore there was "no law to apply." Id. at 908. Thus the decision in Claybrook was actually based on a separate jurisdictional ground -- reviewability under the Administrative Procedure Act -- and federal courts may choose any ground to deny jurisdiction, e.g., Article III standing, prudential standing, or subject matter jurisdiction. See Judicial Watch, 432 F.3d at 366 (Williams, J., concurring) (noting that Claybrook is hard to classify as a standing opinion). There is no hierarchy which obliges a court to decide Article III standing issues before other jurisdictional questions. In re Papandreou, 139 F.3d 247, 255-56 (D.C. Cir. 1998). Therefore, we do not read Claybrook to stand for the proposition, contra Warth, that we must evaluate the existence vel non of appellants' Second Amendment claim as a standing question. (Footnote 2)

In sum, we conclude that Heller has standing to raise his § 1983 challenge to specific provisions of the District's gun control laws.