In the ongoing battle over Washington, D.C.’s arguably unconstitutional ban on firearms magazines that hold more than 10 rounds, D.C. attorneys in February filed a motion to dismiss the lawsuit on the grounds that plaintiffs don’t have standing.
That move, in the case Wehr-Darroka v. D.C., prompted the Firearms Policy Coalition (FPC) to file an opposition to D.C.’s motion to dismiss arguing that the D.C. Circuit’s precedents regarding standing in Second Amendment challenges are inconsistent with the Supreme Court’s decisions as well as every other circuit court in the nation.
In its motion to dismiss, the D.C. government stated: “Under binding circuit precedent, a plaintiff only has standing to challenge a regulation of ‘Arms’ allegedly protected by the Second Amendment if he was threatened with prosecution for violating the regulation, or if he was in fact denied a weapon; and his standing is limited to challenging the regulation’s application to that weapon in particular. The two individual Plaintiffs here have not faced prosecution or been denied an LCM.”
FPC in its opposition filing explains how the D.C. Circuit is holding on to an outdated precedent considering standing.
“For too long, these outdated precedents have barred pre-enforcement Second Amendment challenges in this Circuit, only allowing cases to move forward if a litigant has been arrested, prosecuted, or singled out with specific threats or denials,” the brief argues. “This precedent has effectively closed the courthouse doors to law-abiding D.C. residents seeking to vindicate their fundamental right to keep and bear arms.”
The FPC brief further argues that the court doesn’t necessarily have to follow what it called the circuit court’s “flawed standings.”
“Under the flawed standing precedent created by the D.C. Circuit in Navegar, Seegars, and Parker, the Court must grant the District’s motion,” the brief argues. “Plaintiffs, however, note the deep flaws with that precedent and will urge the D.C. Circuit to reconsider and abandon those flawed cases. In doing so, Plaintiffs ask for nothing more than their day in court.”
Brandon Combs, FPC president, said in a news release announcing the action that the D.C. Circuit has done exactly what Justice Clarence Thomas warned about—turning the Second Amendment into a “second-class right.”
“The D.C. Circuit’s case law on standing has turned the Second Amendment into a second-class right in our nation’s capital,” Combs said. “The government should not be allowed to avoid constitutional compliance by forcing peaceable people to break the law and subject themselves to serious criminal liability before they can challenge unconstitutional laws. The Supreme Court’s precedents recognize this and every other circuit court in the country has held as much. It is time for the D.C Circuit to fix this serious doctrinal problem.”
Ultimately, the FPC brief argues that the organization doesn’t intend to give up on fighting to get plaintiffs’ standing recognized by the court.
“For these reasons, while Plaintiffs have standing to pursue their claims, this Court must grant the District’s motion,” the brief states. “Regardless, Plaintiffs maintain that this Circuit’s Second Amendment standing precedent is deeply flawed and intend to return to this Court to advance their claims after the United States Court of Appeals for the District of Columbia Circuit abandons Navegar, Seegars, and Parker.
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