Footnote 1

1 Of course, American Booksellers can be distinguished from Navegar, Seegars, and the present case, on the ground that the constitutional challenge at issue there implicated the First (as opposed to the Second) Amendment. The American Booksellers Court was concerned that Virginia's statute might chill speech without any prosecution ever taking place, 484 U.S. at 393, thereby creating a wrong without remedy if pre-enforcement standing were denied. But in deciding whether to privilege one amendment to the U.S. Constitution over another in assessing injury-in-fact, we note the statement of our dissenting colleague in Seegars: "I know of no hierarchy of Bill of Rights protections that dictates different standing analysis." 396 F.3d at 1257 (Sentelle, J., dissenting). The Seegars majority, although it felt constrained by Navegar to reach a different result, tacitly agreed with Judge Sentelle's assessment that the injury-in-fact requirement should be applied uniformly over the First and Second Amendments (and presumably all other constitutionally protected rights). Id. at 1254.
This is good news, even though it appears in a footnote.  The decision is indicating the 2nd Amendment rights, once those rights are defined, should enjoy the same protected status as 1st Amendment rights -- and all the other rights within the Bill of Rights and presumably other Amendments that employ similar language. 

It will make it much harder for judges to use standing as an excuse for avoiding crafted 2nd Amendment challenges once the basic 2nd Amendment rights are established by this case.  Not impossible, mind you, but harder.  It's always hard to win a case that requires someone actually commit criminal behavior in order to get a hearing, because your defendents in those cases are usually criminals by profession and that does not provide a good impression to the court or the public.

This entry was published Sun Mar 11 11:00:33 CDT 2007 by TriggerFinger and last updated 2007-03-11 11:00:33.0. [Tweet]

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