Firearms Policy Coalition Challenges D.C.'s Motion to Dismiss Magazine Capacity Lawsuit

In a significant development in the legal challenge against Washington D.C.'s ban on firearms magazines holding more than 10 rounds, the Firearms Policy Coalition (FPC) has filed an opposition to the District's motion to dismiss the case Wehr-Darroka v. D.C.

The District government moved to dismiss the lawsuit in February, arguing that plaintiffs lack standing because they haven't faced prosecution or been denied access to large-capacity magazines. According to D.C.'s motion: "Under binding circuit precedent, a plaintiff only has standing to challenge a regulation of 'Arms' allegedly protected by the Second Amendment if he was threatened with prosecution for violating the regulation, or if he was in fact denied a weapon; and his standing is limited to challenging the regulation's application to that weapon in particular. The two individual Plaintiffs here have not faced prosecution or been denied an LCM."

The FPC's opposition filing argues that the D.C. Circuit's precedent on standing in Second Amendment cases contradicts both Supreme Court decisions and the approach taken by every other circuit court in the country.

"For too long, these outdated precedents have barred pre-enforcement Second Amendment challenges in this Circuit, only allowing cases to move forward if a litigant has been arrested, prosecuted, or singled out with specific threats or denials," the FPC brief states. "This precedent has effectively closed the courthouse doors to law-abiding D.C. residents seeking to vindicate their fundamental right to keep and bear arms."

While acknowledging that current precedent might compel the court to grant D.C.'s motion to dismiss, the FPC's brief argues that these standing requirements should be reconsidered: "Under the flawed standing precedent created by the D.C. Circuit in Navegar, Seegars, and Parker, the Court must grant the District's motion. Plaintiffs, however, note the deep flaws with that precedent and will urge the D.C. Circuit to reconsider and abandon those flawed cases. In doing so, Plaintiffs ask for nothing more than their day in court."

FPC President Brandon Combs criticized the D.C. Circuit's approach in a news release, saying it has "turned the Second Amendment into a second-class right in our nation's capital," echoing concerns previously expressed by Supreme Court Justice Clarence Thomas.

"The government should not be allowed to avoid constitutional compliance by forcing peaceable people to break the law and subject themselves to serious criminal liability before they can challenge unconstitutional laws," Combs continued. "The Supreme Court's precedents recognize this and every other circuit court in the country has held as much. It is time for the D.C Circuit to fix this serious doctrinal problem."

The FPC maintains it will continue pursuing recognition of the plaintiffs' standing, noting in its brief: "For these reasons, while Plaintiffs have standing to pursue their claims, this Court must grant the District's motion. Regardless, Plaintiffs maintain that this Circuit's Second Amendment standing precedent is deeply flawed and intend to return to this Court to advance their claims after the United States Court of Appeals for the District of Columbia Circuit abandons Navegar, Seegars, and Parker."