A federal appeals court in Washington today ruled in favor of a Canadian man and a gun advocacy organization in reviving a suit that challenges the constitutionality of firearm regulations that ban non-residents from purchasing guns in the United States.
The plaintiffs, Stephen Dearth of Canada and the Second Amendment Foundation, in March 2009 sued the Justice Department in U.S. District Court for the District of Columbia. Judge James Robertson in January 2010 dismissed (PDF) the suit, saying none of the plaintiffs have standing to sue.
The U.S. Court of Appeals for the D.C. Circuit today unanimously reversed Robertson’s decision and sent the case back to the trial court for further proceedings. At issue is the constitutionality of regulations that prohibit a person who lives outside the United States from purchasing a firearm here.
Alan Gura of Alexandria, Va.’s Gura & Possessky, who argued for the plaintiffs in the appeals court last November, said he looks forward to presenting, in the trial court, the merits of Dearth’s claim.
"We're very pleased with the opinion,” Gura said. “When people are harmed by the government, they should be able to seek relief in the federal courts, and secure the government's compliance with constitutional standards.”
Dearth, an American citizen, no longer keeps a house in the United States. His attempts in 2006 and in 2007 to buy a gun in the United States were rejected. He wants to purchase firearms in the country, for sport and self-defense, and store the weapons with relatives in Mount Vernon, Ohio.
The appeals court, in an opinion written by Judge Douglas Ginsburg, said past injuries alone are not enough to establish standing to sue. Dearth’s lawyers argued he faces a continuing adverse effect because the government has continued to deny his ability to buy a gun.
“We agree with Dearth that the Government has denied him the ability to purchase a firearm and he thereby suffers an ongoing injury,” said Ginsburg, joined by judges Karen LeCraft Henderson and Brett Kavanaugh.
Justice attorneys, including the Civil Division’s Anisha Dasgupta, said in court papers that Dearth does not have standing to sue because he is not in the United States and has no plan to visit here. DOJ lawyers said Dearth failed to show how the regulations will harm him anytime soon.
The appeals court rejected the government’s position. “In light of Dearth’s stated intent to return regularly to the United States, only to face a set of laws that undoubtedly prohibit him from purchasing a firearm, we conclude his injury is sufficiently real and immediate to support his standing to challenge those laws,” the court said.
There was no immediate comment this morning from the Justice Department and the Bureau of Alcohol, Tobacco, Firearms and Explosives.