A. Defendants? Failure To Assert A Standing Defense Until Prompted To Do So By The District Court Casts Doubt On The Merits Of The Standing Argument.
It is generally considered necessary in legal argument to raise any possible objections or defenses at the first opportunity to do so, on pain of losing access to those defenses should they be raised later on. The reason for this is simple fairness; it would not be proper to allow one party to make arguments that the other party has no opportunity to address, or to petition for an appeal on the basis of available defenses not raised during the original trial. Without rules like that, skilled lawyers could keep a case in the air, and going nowhere, for years. (Some might say they can do so despite these rules even today).
Here, the defendants did not raise the standing issue in the lower court until questioned by the judge about their failure to do so. This isn't quite the same thing, since the issue was raised and addressed (but the plaintiffs were found to have standing). I don't know what the rules would say about this situation, particularly given some of the strange gyrations the case went through, but it's certainly a great big glaring hole in the argument for the defense.
As this brief argues, one of the simplest explanations for why the standing defense was not raised is that the defendants didn't think it had any merit, and so was not even worth trying. An alternative would be that they didn't think of it at all, which isn't very flattering either.
Unfortunately, since it did get raised, they didn't miss their chance to argue it and they can continue to argue the standing issue on appeal. It's a little bit of a pity, since lack of standing is one of the common ways of getting rid of a 2nd Amendment lawsuit without actually ruling on the right to keep and bear itself. If they had forgotten about it entirely the case would probably be simpler.
I do wonder if the judge was trying to be helpful in bringing up the issue.
Defendants failed to question Plaintiffs? standing until prompted to do so by the District Court during oral argument. Had the District Court not raised the issue, Defendants would not have addressed it themselves:
THE COURT: You didn't raise [standing] as a basis for your motion to dismiss.
MS. MULLEN: No, we did not. . . .
THE COURT: When were you planning to raise it? Had I not raised it, were you going to raise it today? MS. MULLEN: No, I was not planning on raising it today.
THE COURT: When were you going to raise it? On appeal?
MS. MULLEN: The issue was raised in the Seegars case as it applied to the U.S. We didn't raise it in the Parker case . . . it's not anything that we have presented to the Court thus far. . .
THE COURT: I'm curious. Had I not raised the issue, were you going to raise it this morning?
MS. MULLEN: No, I had not intended on raising it this morning.
Defendants? amici likewise failed to raise standing in their voluminous briefing:
THE COURT: I don't recall if you, in your brief, address the issue of standing or not. I don't recall.
MR. NOSANCHUK: We did not address the issue of standing.
THE COURT: Everyone recognizes on this side there's no standing, but no one raised it. I find it mystifying.
MR. NOSANCHUK: Right. Well, Your Honor, we would, obviously, be happy to submit supplemental briefing.
THE COURT: No. I was just asking questions. I'm not trying to signal my opinion that there's not standing. It was just a legitimate question to ask. So I hope I'm not sending the wrong signals to everyone that there's no standing here. But, I mean, constitutional scholars and lawyers of long standing and no one raised it? Don't turn your head away. I mean, if I hadn't raised it, it was not going to be raised?
It is self-evident why Defendants and their amici never thought to raise a standing defense: they knew it lacked merit. Even before responding to Plaintiffs? complaint, Defendants had proclaimed on the front page of the Washington Times that Plaintiffs were a threat to public safety who should expect no quarter from the city?s zealous prosecution efforts. On summary judgment, Defendants admitted that the laws are zealously enforced. And during oral argument, they candidly confirmed that Plaintiffs would be prosecuted if they violated the challenged laws. Thus, it presumably never occurred to Defendants to assert a standing defense because they had every intention to prosecute the Plaintiffs should they exercise their right to keep and bear arms.
It's unfortunate that willingness to prosecute is only one of several components required to establish standing. I think there's little room for doubt; the City isn't going to wear kid gloves with the Parker plaintiffs. It would take a lot of handwaving to work around that component of standing. It would not be unprecedented but it would be a stretch.
The second component, a real case or controversy, is similarly easy. There isn't much doubt that the plaintiffs have a real case -- they have real and strong reasons to possess firearms within the District and at least one has applied for a permit and been denied.
The only serious question is whether the 2nd Amendment protects their right to possess functional firearms. Obviously most of the readers here believe it does. Convincing a court to rule that way is not necessarily easy, however, especially given a lack of serious precedent on our side. This particular bar should be a fairly easy one to cross if the First Amendment is the standard, but it's not. We'll just have to wait and see.