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Updates to the DC gun ban challenge.

Discussion in 'Activism Discussion and Planning' started by gopguy, Aug 20, 2007.

  1. gopguy

    gopguy Well-Known Member

    Hello, there has been some movement and a name change in the lawsuit challenging the Washington DC handgun ban. My latest article for BFA gets you up to date. Tim


    My understanding is that Levy and Gura are not accepting donations at this time for funding the challenge, but I am pretty sure the CATO Institute would appreciate our support.


    Just let them know the work of Robert Levy on Heller Vs. Washington DC is much appreciated. :D
  2. kludge

    kludge Well-Known Member




    What, so only off-duty police officers have an individual rights now?
    Last edited: Aug 20, 2007
  3. illspirit

    illspirit Well-Known Member

    The DC Circuit just has really strict standing requirements. It would seem that Heller was the only one who actually applied to get a new handgun registered. Since the others didn't apply, they technically weren't denied, thus, they don't have standing. One would think the chilling effect of the law would be infringement enough for standing, but DC is just weird like that.
  4. jlbraun

    jlbraun Well-Known Member

    We're screwed. Even if the case goes our way, the decision will be "Now even off-duty police will have their RKBA recognized. What? Regular people? Heavens, no!" :fire:

    This could have been a landmark case restoring rights to regular joes. Now it's going to apply only to the "Only Ones".

    Sigh. Though I guess we now have to get a regular citizen of DC to get a handgun permit and be denied. Would someone kindly get on that, please?
  5. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    kludge, I think you misunderstand the concept of standing. Heller was the only plaintiff who attempted to obtain a permit and was denied, so he was the only plaintiff who had standing under the stricter D.C. standard.

    In order to show that you have standing, you need to do the following:

    1. Must show personal injury (actual or threatened*) as a result of alleged illegal conduct by defendant.

    In this case, only Heller had an actual injury because he had applied for the permit to own a handgun and been denied. The others did not attempt to apply for a permit because they knew they would not get it because nobody had ever gotten one. In other circuits, this would probably be enough to establish standing under Warth v. Seldin; but the D.C. circuit follows precedent from an earlier gun case called Navegear Inc.. So they have a stricter standard to meet... the injury must be actual or imminent.

    2. Your injury can be fairly traced to the challenged action.

    In this case, the injury is an inability to legally own a handgun under any circumstances. The challenged action is the D.C. gun ban which blocks such ownership, so this requirement is met. If our plaintiffs had instead challenged the authority of the federal government to tax them and cited an inability to own a handgun as an injury, they would fail this test.

    3. The injury is likely to be redressed by a favorable court decision

    Here the injury will be redressed by a favorable court decision. However, let's say we sued the government of Sudan for genocide against its citizens... even if we win the suit, not much we can do to affect the government of Sudan so they might find there was no standing (in addition to issues of sovereignty).

    In addition to these considerations, the Court has its own "prudential requirements" that it usually follows:

    (1) Plaintiff generally must assert his own legal rights or interests, cannot rest claim on rights or interests of third parties
    (2) Cannot assert a generalized grievance that is pervasively shared and is most appropriately addressed by the legislature
    (3) Cannot be a claim outside the zone of interest protected by the relevant statute or constitutional provision

    If you meet all of those requirements, you have standing to bring suit before the Court.

    * Warth v. Seldin is the case that established the modern requirements for standing (actual or threatened injury). However, in 1992, the Court revisited the issue of standing in Lujan v. Defenders of Wildlife. In that decision, the majority appears to merely quote the previous decision in Warth; but instead of using the phrase "actual or threatened", they use the phrase "actual or imminent."

    In Navegear, the D.C. Circuit decided that the change of phrase was not accidental and that it signaled an intent by the Court to tighten the requirements for standing so that injury must be "imminent" and not merely "threatened" if it is not actual. The remainder of the circuits pretty much kept on doing what they had always done ("actual or threatened") and so far the Supreme Court has not clarified that issue.

    If anyone else wants to clean up my basic "into to standing" post, please feel free to add your $.02.

    Heller was a Special Police Officer for D.C. - this is essentially the same as an armed security officer and applies to private security guards as well, though Heller worked for the city and his participation in the lawsuit probably didn't win him any friends. These police officers only have authority as police officers at the specific facility they are assigned to guard. I disagree strongly with your assessment that this will limit the decision.

    I'd also remind everyone that the Activism forum is for ACTING - not complaining, speculating, guessing or generally chewing the fat. gopguy has a plan of action to support CATO as a proxy for Heller. Please either get behind that and help him with his plan or come up with one of your own. Complaining of doom and gloom and doing nothing is not an option for this forum.
    Last edited: Aug 20, 2007
  6. kludge

    kludge Well-Known Member

    Thanks. I didn't know they hadn't actually applied for registration... great post BTW.
  7. ServiceSoon

    ServiceSoon Well-Known Member

    This new information is most upsetting, but I guess there is no reason to get worked up until the ruling, that is if the SCOTUS grants Certiorari.
  8. ctdonath

    ctdonath Well-Known Member

    As infuriating as it seems, this limitation actually helps.
    The biggest problem facing RKBA cases in the past was that there were always too many other competing issues acting as red herrings. Much as it seems stupid to have to apply for a permit one knows will be denied, just to prove it will actually be denied, doing so helps close off any loopholes the opposition will use to derail the case. Ergo, with the other plaintiffs, DC could have said "well, we actually DO bother to fund and maintain an office & process for applying for handgun permits, we're not completely stupid* so if you HAD APPLIED then maybe we wouldn't be wasting the court's time" at which point the judge would have to look at the plaintiff with a "well why didn't you bother? was it really that difficult?" look.

    * - maybe they are, but trying to prove it in court without actually following that dead-end process is a lot harder than actually doing it and showing that indeed they are.
  9. bruss01

    bruss01 Well-Known Member

    I can't believe that they decided to pursue a court case when they hadn't even bothered to apply for the permit!! That's just... well, trying to be polite but the only word that fits is STUPID. There IS a process. Yes, you will get denied. ISN'T THAT THE WHOLE POINT? If you never applied, how can you prove you wouldn't have gotten the permit? It becomes pretty hypothetical at that point and you can't expect any serious court to try a hypothetical case!

    I'm glad at least ONE of the plaintifs had the sense to actually pursue the avenues open to them. The others... you weren't BANNED you just never bothered to APPLY. Sheesh...
  10. Mazeman

    Mazeman Well-Known Member

    How does one apply for something that is illegal? That's like going to Town Hall and applying for a murder license.

    It may be that the cop had some remaining avenue of application open to him because he was an LEO (who are allowed to own handguns if employed in DC). I may be wrong, but it seems the other plaintiffs had no method of applying available to them.
  11. ctdonath

    ctdonath Well-Known Member

    BY LAW THE DC HANDGUN PERMIT APPLICATION WOULD BE DENIED. No options, no hope. The existence - for 30+ years mind you - of an actual application and a permit office and bureaucrats to sit in that office just to stamp the permits "denied" is, you must admit, downright surreal. I've spent enough time studying local gun laws (NY) to understand the "I give up, I'm suing" mindset.

    Relatively recently, there was a case (US vs. Rock River Arms IIRC?) where a high court (SCOTUS?) held that one could not be held liable for not registering a post-'86 machinegun precisely because there was no lawful way to do so. That should have held in this case: not having submitted an application should not have been held against the plaintiffs precisely because there was no way whatsoever for it to have been approved.
  12. CleverNickname

    CleverNickname Well-Known Member

    But what downside would there have been for the other plaintiffs to submit a permit application? None that I can tell.
  13. ctdonath

    ctdonath Well-Known Member

    Several plaintiffs were included precisely to provide several combinations of relevant issues. Having at least one plaintiff not apply for the permit was important to press the issue "even if I applied there was absolutely no legal way for it to be approved, so there is no point in applying." This is important because it is an attempt to get a ruling which prevents governments from creating a flurry of required dead-ends precisely to hinder anyone ever taking a ban to court - which, unfortunately, worked very effectively against those who did not apply for the permit.

    On that note, Ms. Parker and the rest still have a chance to appeal on the grounds that they lost standing for not doing something which, by law, would not have worked/helped anyway. Ergo, even if Mr. Heller hits a dead end, the other 5 plaintiffs still have a chance of taking this case forward.

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