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Rehearing denied in DC challenge (Seegers)
Triggerfinger reports that rehearing has been denied in Seegers. I have an interesting proposal for dealing with the standing issue that is at the heart of that (and many other gun cases).
The DC Circuit ruled that the plaintiffs lacked "standing." That's a jurisdictional requirement arising largely out of the Constitution's provisio that Federal cases must involve a "case and controversy," a real, practical, legal dispute. If a person is not being prosecuted, there are some serious limitations on whether he/she can take the offensive and sue to challenge a law (esp. when the always-special First Amendment is not involved). The standing barrier is a major threat to test cases, which is why when I taught bringing the Federal test case as part of a CLE course, I started with it, and stated it had a higher potential of killing your case than any other defense.
A thought I just had. The challenge here is to DC's refusal to issue handgun permits, and requirement that any long guns be disassembled or trigger locked. Plaintiffs are challenging because it prevents them from defending themselves.
Now... in environmental cases the Supreme Court has recognized "aesthetic standing." Sierra Club v. Morton I believe was the first case, more recently the American Cetasian or however you spell whales in a fancy mode. In the latter the harm was that the govt action allegedly might reduce whale populations, which would impair plaintiffs' enjoyment of whale watching. That string of cases establishes that emotional harm (down to possible loss of seeing something you like to see) is sufficient "harm in fact" to confer standing.
If that is the case, then is there not an argument that deprivation of a feeling of security is "harm in fact," and thus laws that cause that deprivation are actionable? The desire to feel safe from deadly assault is surely stronger than the desire to see open landscape or watch whales.
Further thought: a complication.... in the enviro cases the alleged emotional harm flows directly from the government action. In a firearms case there is an intervening event... the law causes plaintiff to obey it, which causes the distress. Courts might tend to say that that intervening cause puts you back in the box.
Comments
Hrm. Clever. The Seegars argument hasn't covered that point with regard to standing, even though they have come close when discussing the merits (particularly with the trigger-lock plaintiff, who fears crime and wants to have a functional firearm for explicit self-defense reasons). Courts have mostly responded by emphasizing the intervening event inspiring the need for self-defense (criminal act by another).
I think your idea might well have merit on the standing issue, but it may well be too late for either of the cases to bring it up. I suppose there's also the risk of playing to the "gun nut" stereotype (paranoid, that is; even though anyone in DC and in particular the trigger-lock plaintiff has reason to fear!).
Posted by: TriggerFinger at July 1, 2005 08:39 PM
I would think a possible future event that may cause a feared outcome is a vastly more oblique harm than a present frustration caused by not having an effective means of self defense. IIRC, even Thomas Hobbes said the person's self-preservation interests trumped any government interest. Self-preservation is a rational cause for a person to violate the law. Self-preservation is probably a drive closer to something like instinct than was the basis for granting "aesthetic standing. Reason tells me that laws obstructing self-defense frustrate a very fundamental human impulse, the harm of which must be vastly beyond the harm done by some premeditated fear of not seeing whales.
But, from my lay position, reason seems often the first obstacle to law.
Posted by: Bill Bailey at July 3, 2005 05:19 PM