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« A complete understanding of the Second Amendment | Main | Iraqis do it again »

Standing to challenge DC gun ban

Posted by David Hardy · 1 April 2005 11:31 AM

An interesting article by Alan Gura and Bob Levy in the American Spectator, on standing to sue and the challenges to the DC gun ban.

Standing to sue is a procedural barrier which I have studied for many years -- in my ten years with the government it was our first line of defense, and in private practice, bringing test cases, it's the first hurdle. The core idea is that a person cannot challenge a law just because he or she thinks the law is improper, or says they can't do something because it would break the law: the person must show that it's a real-world issue, by showing a realistic likelihood that they will be prosecuted under it. [Or else break the law and actually get prosecuted, which obviously has a certain downside].

While there are a number of complicated standards involved, it's my cynical observation that if courts like a particular type of lawsuit (e.g., first amendment, environmental, right to choose) they somehow always find plaintiffs have standing, and if they don't like the type of suit, they somehow always find plaintiffs have no standing. There are plenty of first amendment cases where there was little to no likelihood of prosecution (in one, the Supreme Court noted that there had never been a prosecution under the law, period ... and then went on to decide the case anyway) and plenty of second amendment and other cases where the courts found every manner of reason to conclude there was insufficient showing of likelihood.

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