Standing is bullshit
Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Yet, GLN reports:
Now, if you are a Lautenberg victim, how do you get your gun rights reinstated? By having your record expunged.
For those in Wyoming, a law passed in 2004 allows for expungement of misdemeanor offenses. The purpose of the law was expressly to restore firearm rights taken away by the Lautenberg Amendment.
The BATFE responded by saying that Wyoming had an incorrect definition of ‘expunge’ and that the BATFE would prosecute any Lautenberg victim who possessed a firearm after having their record expunged by Wyoming.
This put Wyoming in the interesting position of issuing concealed carry permits to people that the feds considers prohibited persons.
Obviously this has caused a certain amount of controversy. Christopher Kegler sued the BATFE. Unfortunately for Chris, the judge decided that there was no threat of prosecution for desiring his gun rights back.
I can only conclude that the only way Chris can get his day in court is to violate and face prosecution under Lautenberg. Of course, the judge may then say that the BATFE matter will be resolved in criminal court and not address it. The risk to Chris is that he had a misdemeanor offense expunged and would face felony prosecution. Even victory would come at great, personal expense.
On standing, David Hardy writes:
Standing is a complex and chaotic doctrine. When I lectured a CLE seminar on bringing firearm law test cases, I always dealt with it first, with the warning it has a 75-80% kill rate, and you have to really do your preparation on it. Unless they really like your claim, courts are quick to say you have no standing because you aren’t being prosecuted and can only speculate that if you break the law, something would happen. You have to be very creative here.
I think citizens should be allowed to challenge laws without the risk of imprisonment or fines that come with breaking the law. It’s what a conscientious citizen should do. Our system prevents that which makes it more difficult for people to challenge things they view are unjust. They do so at the risk of losing their freedom. And the system is set up that way to prevent that from happening. It’s bullshit. David Hardy recommends in this case that:
I’d suggest here an argument along the following lines: to buy a gun from a dealer he has to get a background check. Now, he can’t really fill out the 4473 and put in NO. That’d make him guilty of a false record, a felony, and it’s pretty much strict liability for that. He must say yes or no, and is guilty if the answer is wrong, even if he thinks it is right.
But… if he did do that, the NICS system would stop the transaction.
So he has an immediate injury, even if ATFE sent him a letter saying that, because he is such a nice person, they will never prosecute him even if he does buy. He can’t buy from an FFL, period. It’s not just that he fears prosecution if he does, the system is so set up that he cannot.
July 24th, 2006 at 9:36 am
The problem isn’t with the standing doctrine, but with an individual judge who got it wrong. My guess is that this judge is hostile to gun rights generally, and therefore just wanted the suit to go away. I doubt his ruling will stand up on appeal.
July 24th, 2006 at 11:17 am
What I don’t get is how environmental groups can sue to block everything under the sun, before it happens. Thus, no damage has actually occurred and no law has been broken, and yet they still have standing to sue.
How’s that work? Is there some strange codicil in the environmental protection laws that doesn’t work for individual rights? Do trees have more access to protect themselves in court than people?
July 24th, 2006 at 4:51 pm
Thanks for the info.
As I’ve mentioned before, “When I’m Rich And Powerful”, I plan to use the courts to roll back these horrible laws – just as the Libs do.
I’ll file this away for later use….
July 24th, 2006 at 5:54 pm
The ‘standing problem’ with regards to 2A cases isn’t just this case and this judge, though. IIRC, at least one of the two current cases challenging the DC gun ban has run into this issue as well, being denied standing by the DC Circuit.
I think it a way for a judge or court to avoid dealing with the issue.
July 25th, 2006 at 1:35 am
I think it a way for a judge or court to avoid dealing with the issue.
Hit. Nail. On. Head.
also if you look, federal judges have a very nice retirement package.
Wikipedia- Senior status
Senior status is a form of semi-retirement for judges of United States federal courts. After federal judges have reached a certain combination of age and years of federal service, under the rule of 80, they are allowed to assume senior status. A judge must be at least 65 and have served for 15 years to qualify, with one less year of service required for each additional year of age. When that happens, they receive the full salary of a judge but work only part-time.
OK so what you get here are judges that know they aren’t going to advance any more in their judicial system. They can retire, and draw their full pay, and yet they are able to pop in and rule on those cases that the ones that think they still have a shot at being a supreme, don’t want to touch. Because we all know there are certain cases, like ab_____n, or the se—d amend- –t, that no ladder climbing judge-critter worth his salt wants on his record.
Of course that’s unconstitutional, but so is 90% of the federal bureaucracy and 90% of the laws congress passes.
America is at that awkward stage…