Monday, April 18, 2011

Standing to Challenge Residency Requirement for Guns

The D.C. Circuit ruled on Friday that a U.S. citizen residing in Canada has standing to challenge the federal law prohibiting a non-resident from buying a gun.

18 U.S.C. Sec. 922(a)(9) makes it unlawful for "any person . . . who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes."  The ATF form Firearms Transaction Record Part I--Over the Counter, requires gun purchasers to give their state of residence.  (See Question 13 on the form.)

The plaintiff in the case, Stephen Dearth, alleged that he lives in Canada and no longer maintains a residence in the U.S.  He says that he tried twice to purchase a gun, but was foiled when he could not provide an answer to Question 13.  He sued for declaratory and injunctive relief.

The government argued that Dearth couldn't show a continuing harm: It never denied his application; Dearth didn't claim a right to a "permit" or "license" by the government; and Dearth stated no firm plans to visit the U.S.

The court rejected these arguments.  It held that Dearth's inability to complete the application was harm enough (even if the government didn't ever deny the application), and that Dearth's claim of a right to possess a gun was sufficient (and that there's no requirement that Dearth claim a right to a permit or license).  It also held that Dearth's claims that he intends to visit his friends in the U.S. and to store his guns at his relatives' home in the U.S. satisfied the requirement in Lujan v. Defenders of Wildlife, 504 U.S. at 564, that a prospective injury be sufficiently "actual or imminent" (and not a "some day" intention).

SDS

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