Ordinarily, citizens can avoid the horns of that dilemma. They can go to court, convince a judge that they’ll be prosecuted if they break the law, and get the court to decide in advance whether the statute is constitutional. But D.C. plays by a somewhat different set of rules. There, the federal courts take a much narrower view of who has judicial “standing” to bring a lawsuit. In a 1997 case, Navegar v. United States, the U.S. Court of Appeals for the D.C. Circuit said that manufacturers of so‐called assault weapons could not challenge a 1994 ban on such weapons unless the statute named a specific firearm that the manufacturer produced. In other words, simply identifying a firearm by characteristics, such as magazine size, wasn’t deemed sufficient to constitute a real and imminent threat to prosecute companies that made weapons of that general type.
In February of this year, the D.C. Circuit applied the Navegar doctrine to deny standing to the plaintiffs in Seegars v. Ashcroft, a Second Amendment challenge to the city’s ban on handguns and other operable firearms. The court held that general threats of prosecution by D.C. are not adequate to confer standing, and no Seegars plaintiff had been exposed to a specific, individualized threat. Although the court acknowledged that the statute barring the plaintiffs from possessing firearms might implicate a constitutionally protected interest, and that plaintiffs were sincere in their intention to violate the statute, still the court found that they did not demonstrate a sufficiently credible risk of prosecution.
Of course, there is much to be debated about such a narrow doctrine. Suppose, for example, the 1994 statute at issue in Navegar had banned all commercial firearms, not just “assault weapons,” without naming any particular weapon. Would the court have denied legal standing to every gun‐maker who intended to enter the commercial market merely because no specific weapons were named? Not likely. In effect, however, that is what the court does when it rejects standing for every would‐be handgun owner in Washington, D.C. who is not individually threatened with prosecution.
Notably, even Navegar granted standing to some firearms manufacturers if the challenged statute had targeted their product by name. But in D.C., the government prohibits all pistols and all functional long‐arms, without exception. So the firearms that the Seegars plaintiffs owned (or intended to purchase) were incontrovertibly covered by the D.C. ordinance. In that sense, the D.C. gun ban goes far beyond the statute for which limited standing was approved in Navegar.
Fortunately, the D.C. Circuit will have one more bite at the standing apple. Parker v. District of Columbia, another Second Amendment challenge to the city’s gun ban, is now before the court. Parker is factually distinguishable from Seegars in a several important respects:
- First, the six plaintiffs in Parker were personally and unambiguously threatened with prosecution by D.C. — both in the trial court during oral argument and by the Mayor’s official spokesperson, as quoted in the press.
- Second, D.C. never raised standing as an issue until told to do so by the trial judge. Nor did D.C.‘s prominent friends‐of‐the‐court — the Violence Policy Center and the Brady Center to Prevent Gun Violence — raise standing in their extensive briefing. Most likely, they believed the city’s announced intent to prosecute the Parker plaintiffs was enough to confer standing even under the strict guidelines of Navegar.
- Third, the trial judge ordered supplemental briefing on the standing question, but then proceeded to issue an opinion on the merits without even mentioning standing. Fourth, counsel for Parker filed 34 separate assertions of material facts, which D.C. was invited to dispute. The key assertion that D.C. officials “actively enforce” the gun ban was never disputed, and thus admitted.
It would seem, therefore, that Navegar’s exacting standing requirement — a credible and specific threat of prosecution — is amply satisfied in Parker. Indeed, the first threat to prosecute the Parker plaintiffs appeared on the front page of the Washington Times just two days after Parker was filed. According to the news report, Mayor Anthony A. Williams’ office said the city would not budge. “The last thing this city needs is more handguns,” said the Mayor’s official spokesman, Tony Bullock. He added, “You’re not going to see any will on the part of this mayor to relax the gun laws in the District.” “We have to maintain the deterrent effect of the gun laws.” The mayor’s office now claims that it was merely “stating a general policy that the District intends to enforce its weapons laws.” But that characterization of the statement ignores its context. The city’s “general policy” was not front page news in the morning papers. The Parker lawsuit, filed two days earlier, was. That lawsuit, and the desire of the six Parker plaintiffs to possess proscribed firearms, is what prompted the Washington Times story, “Residents Challenge District’s Gun Ban.”
Later, in response to a direct question by the District Court at oral argument, counsel for D.C. stated once again that the Parker plaintiffs would be prosecuted for violating the challenged statutes: