Interstate Firearm Sale Regulations Challenge Fails on Standing

By William Peacock, Esq. on January 04, 2013 | Last updated on March 21, 2019

We’re (mostly) all lawyers, but we’re not all gun buyers. In order to fully understand this case, it might help to have some information on interstate gun purchases and Federal Firearms Licenses (FFLs). In order to purchase a handgun from another state, it has to be shipped to a dealer holding a valid FFL. That FLL holder then charges their own fee, which typically includes state and local fees as well.

This FFL requirement is the heart of the Lane v. Holder dispute that was decided by the Fourth Circuit on New Year’s Eve. There were three plaintiffs seeking an injunction to stop enforcement of FFL regulations:

  • Michelle Lane, who wanted to purchase handguns in Washington D.C., but was unable to do so because the only FFL dealer in town went out of business (temporarily, it seems);
  • The Welling Family, who wanted to transfer firearms and purchase more guns in Virginia, but could not do so because they were from D.C.;
  • The Second Amendment Foundation (SAF), who is upset that they chose to spend money contesting a law.

The unfortunate aspect of this case is that Lane's situation presented an intriguing legal question: if one has the right to bear arms, but the federal regulations make it factually impossible to obtain arms legally, is that itself a violation of her Second Amendment rights?

("If a tree falls in a forest...")

Instead of answering that question, the court disposed of the entire matter on the basis of standing. For the court, it was a matter of traceability of the harm back to regulation.

The SAF's standing was disposed of rather quickly. They argued that they were harmed because they had to spend money challenging the regulation. The court stifled their laughter and pointed out that if that were enough for standing, any party could expend money to challenge a rule and latch on to a lawsuit. The SAF was injured by their own budgetary choice, not by the regulation.

As for the Wellings and Ms. Lane, the court stated that the regulations applied to dealers, not consumers. In previous cases where the Supreme Court recognized standing based on regulations depriving a person of their constitutional rights, the regulation was direct - not a matter of degrees of separation.

An interesting route possibly missed by the court was the line of cases dealing with interstate wine transfers. In other circuits, plaintiffs were able to obtain standing because interstate transfer regulations prevented them from obtaining wines they desired. The court differentiated by pointing out that the plaintiffs here can get their guns - it's just a major expense and logistical rough stuff.

One wonders if the court might be kicking the can down the road here. Though Lane's challenge may have been rendered moot by the reopening of D.C.'s sole FFL, what about the classic argument of "capable of repetition, yet evading review?" When the marketplace is so restricted, and apparently unstable, this is likely to happen again. Should she wait to be reinjured before refilling the case?

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