Oversimplifying the standing question...

Kevin at The Smallest Minority and Uncle of SaysUncle are both complaining about the requirement for "standing" in order to challenge a law on Constitutional grounds. In so doing, though, they are overstating the requirements a little. Kevin's summary was:

There's something wrong with a system that essentially demands that you break a law before you can challenge its Constitutionality.

I would be in full agreement with that statement, if in fact it was accurate. However, it's not actually the case for most challenges. I don't want to claim more expertise than I actually have, not being a lawyer, but as I understand it, the standing requirement is "an actual case or controversy". That's not very illuminating, but when it is applied to First Amendment cases, it is generally applied such that you do NOT have to violate a law and wait to be charged before you can challenge the law. Generally, for a First Amendment case, it's sufficient to show that something you want to publish might cause you to be charged if you actually do. Usually you have to have some specific work in mind, for example, but even that isn't necessary if you're talking about, say, a regularly published magazine or newspaper, or some sort of project that you can specifically define but haven't yet invested money in producing (because it would be illegal).

I'm afraid that standing, as applied to the 2nd Amendment, is another example of "gun bigots" applying different standards as a result of their bigotry.

In the case of the DC Circuit, the courts were bound by the Navegar precedent. That case arose from the assault weapons ban and set a very, very high bar for standing in gun related cases. That bar was set so high, in fact, that a visit by BATFE agents to a firearms manufacturer to individually notify the manufacturer that certain of their products, named specifically in the law, was not deemed a "specific and individualized threat of prosecution"... because the manufacturer in question chose to comply with the law rather than disregard it (and risk a felony conviction if he lost). If that sounds like nonsense to you, well, I can't say I disagree.

The bar is set significantly lower for First Amendment cases. I'm not sure where it is set for other Constitutional rights, but I imagine the extremes of the issue are defined by the First and Second Amendment rights.

Perhaps one of the lawyers familiar with this issue and how standing in firearms cases differs from standing in First Amendment cases could give a good summary?

Posted on 2008-06-15 02:09:44.0 by matthew@triggerfinger.org

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