PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHELLE LANE; SECOND 

AMENDMENT FOUNDATION, INC.;

MATTHEW WELLING; AMANDA

WELLING,

Plaintiffs-Appellants,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States; W.  No. 11-1847

STEVEN FLAHERTY, Superintendent,

Virginia State Police,

Defendants-Appellees,

and

DISTRICT OF COLUMBIA,

Defendant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:11-cv-00503-GBL-TRJ)

Argued: October 23, 2012

Decided: December 31, 2012

Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Motz and Judge Floyd joined. 
COUNSEL

ARGUED: Alan Gura, GURA & POSSESSKY, PLLC, Alexandria, Virginia, for Appellants. Anisha S. Dasgupta,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Earle Duncan Getchell, Jr., OFFICE OF THE

ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

ON BRIEF: Tony West, Assistant Attorney General, Michael

S. Raab, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Neil H. MacBride, United States Attorney,

Alexandria, Virginia, for Appellee Eric H. Holder, Jr. Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Russell,

Jr., Deputy Attorney General, Catherine Crooks Hill, Senior

Assistant Attorney General, OFFICE OF THE ATTORNEY

GENERAL, Richmond, Virginia, for Appellee W. Steven

Flaherty. 

OPINION

DUNCAN, Circuit Judge:

Michelle Lane, Amanda and Matthew Welling, and the

Second Amendment Foundation ("SAF") (collectively, "the

plaintiffs") filed a pre-enforcement challenge to the constitutionality of a federal statute restricting interstate transfers of

handguns, 18 U.S.C. § 922(b)(3); a federal regulation implementing that statute, 27 C.F.R. § 478.99; and a Virginia law

prohibiting Virginia firearms dealers from selling handguns to

non-residents of Virginia, Va. Code section 18.2-308.2:2. The

district court dismissed their complaint on standing grounds.

It concluded that any injury to the plaintiffs resulted from

decisions made by third parties rather than the application of

the challenged laws to them directly, and therefore, that they

lacked standing. On appeal, the plaintiffs argue that their

alleged injuries are traceable to the challenged laws. For the

reasons that follow, we affirm.

2 LANE v. HOLDER
I.

A.

Congress enacted the federal statute at issue, 18 U.S.C.

§ 922(b)(3), part of the Gun Control Act of 1968, Pub. L. No.

90-618, 82 Stat. 1213, "to strengthen Federal controls over

interstate and foreign commerce in firearms and to assist the

States effectively to regulate firearms traffic within their borders." H.R. Rep. No. 90-1577, at 6 (1968), reprinted in 1968

U.S.C.C.A.N. 4410, 4411. One of the mechanisms for doing

so was a requirement that interstate transfers of firearms take

place through federal firearms licensees ("FFLs"). 18 U.S.C.

§ 922(a)(1)-(5). Under the federal statute, a buyer may purchase a handgun from an out-of-state source, but that source

must be a FFL and the buyer must arrange for the handgun to

be delivered to an in-state FFL, from whom the buyer may

retrieve the gun. See id. § 922(b). In contrast, FFLs may sell

or deliver a rifle or shotgun to an out-of-state resident if the

transferee meets in person with the FFL in the state where she

wishes to buy the firearm and if the transfer complies with the

laws of both the transferee’s and transferor’s states. The

Bureau of Alcohol, Tobacco and Firearms issued implementing regulations that closely track the federal statute. See 27

C.F.R. § 478.99.

Virginia’s statute likewise permits the sale or transfer of a

rifle or shotgun to a non-resident of Virginia, but prohibits the

direct sale or transfer of a handgun to a non-resident. Va.

Code sections 18.2-308.2:2(B)(5), (C). As with the federal

statute, to sell or transfer a handgun to a non-resident, the firearms dealer must send the gun to a firearms dealer in the nonresident’s home state, from whom the buyer may retrieve the

gun. Id.

LANE v. HOLDER 3
B.

Lane and the Wellings are residents of Washington, D.C.

who wish to acquire handguns from other states. Lane ordered

two handguns from a FFL in Virginia. She was originally

unable to take possession of the handguns, as Washington,

D.C.’s sole FFL, Charles Sykes, had lost his lease and was no

longer in business.1 She contends that but for the interstate

handgun transfer prohibitions, she would have taken possession of the handguns directly in the Virginia store. Since the

time of the district court’s dismissal of this case, Sykes has

reestablished his business, and Lane has been able to acquire

one of her out-of-state handguns from him. To obtain a gun

moving interstate from Sykes, Washington, D.C. residents

must pay a transfer fee. The Wellings hoped to acquire a

handgun from Amanda Welling’s father, who wished to transfer the gun to her through a Virginia FFL. Generally, Lane

and the Wellings assert that they "would participate more frequently in the market for handguns but for the interstate handgun transfer ban." Appellants’ Br. at 18. They find the various

transactions they must undertake to acquire a handgun "burdensome and expensive." Id.

SAF is a non-profit membership organization with members from across the country, including Washington, D.C. and

Virginia. Its purposes include "promoting the exercise of the

right to keep and bear arms; and education, research, publishing and legal action focusing on the Constitutional right to

privately own and possess firearms, and the consequences of

gun control." J.A. 29. SAF contends that the challenged laws

have caused it to expend resources in response.

1There was some dispute below about whether there were any FFLs in

business in Washington, D.C. at the time this case was before the district

court. The district court assumed for purposes of argument that the plaintiffs were presently unable to receive interstate transfers of handguns

because there were no FFLs operating in Washington, D.C. At this juncture, however, the parties agree that at least one FFL operates in Washington, D.C. 

4 LANE v. HOLDER
II.

The plaintiffs sought injunctive and declaratory relief

against Eric Holder, Jr., in his official capacity as Attorney

General of the United States, and W. Stephen Flaherty, in his

official capacity as Superintendent of the Virginia State

Police, to prevent enforcement of 18 U.S.C. § 922(b)(3), 27

C.F.R. § 478.99, and Va. Code section 18.2-308.2:2, to the

extent these laws prohibit the acquisition of handguns by outof-state residents.2

 The plaintiffs moved for a preliminary

injunction. In a hearing on that motion, the district court dismissed the case for lack of standing. The plaintiffs now

appeal.

III.

To have standing, a plaintiff must be able to show:

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180–81 (2000).

We review a district court’s decision to dismiss for lack of

standing de novo. See Doe v. Obama, 631 F.3d 157, 160 (4th

Cir. 2011).

2The complaint also challenged Washington, D.C. municipal regulations, which have since been modified. Upon Washington, D.C.’s amendment of its regulations, the plaintiffs moved to dismiss their claims against

Washington, D.C., and we granted their motion. 

LANE v. HOLDER 5
A.

1.

To establish an injury in fact as required by the first prong

of our standing analysis, the plaintiffs must demonstrate that

their claim rests upon "a distinct and palpable injury" to a

legally protected interest. Warth v. Seldin, 422 U.S. 490, 501

(1975). This injury must "affect the plaintiff[s] in a personal

and individual way." Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 n.1 (1992).

The plaintiffs assert that the challenged laws result in "a

restriction on the range of retailers available to consumers of

constitutionally-protected articles." Appellants’ Br. at 23.

This, they contend, constitutes a constitutional injury that has

frequently been considered sufficient for standing by the

Supreme Court. We find that because the challenged regulations do not affect the plaintiffs directly, their situation is distinguishable from the cases in which the Supreme Court has

deemed such a restriction to constitute an injury in fact.

A plaintiff who alleges an injury based on restriction of distribution channels may be able to show standing if the defendant’s actions directly affect that plaintiff. For instance, the

Supreme Court found that a distributor of contraceptives had

standing to challenge a law barring all but licensed pharmacists from selling contraceptives. Carey v. Pop. Servs. Int’l,

431 U.S. 678, 682-83 (1977). In Carey, however, the lead

plaintiff was a distributor directly regulated by the law being

challenged. Id. The plaintiffs in this case are in a fundamentally different situation, as the laws and regulations they challenge do not apply to them but rather to the FFLs from whom

they would buy handguns. It is the absence of a direct effect

that distinguishes the facts before us from those in decisions

on which plaintiffs seek to rely.

Consumers burdened by regulation of the sellers they transact with may be able to establish that they have suffered an

6 LANE v. HOLDER
injury in fact, as the Supreme Court has made clear in the

context of Commerce Clause litigation. See Gen. Motors

Corp. v. Tracy, 519 U.S. 278, 286 (1997) (holding that "cognizable injury from unconstitutional discrimination against

interstate commerce does not stop at members of the class

against whom a State ultimately discriminates, and customers

of that class may also be injured," as is the case when a customer is liable to pay a tax when buying from an out-of-state

producer). Again, however, the plaintiffs in Tracy were burdened directly, as the government required them to pay a tax

upon buying products from out-of-state sellers. See Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin County, 115 F.3d

1372, 1381 (8th Cir. 1997) (concluding that Tracy and related

Commerce Clause cases "do not stand for the proposition that

consumers paying the end-line cost of an economic regulation

have standing to challenge the regulation under the Commerce Clause," because plaintiffs in those cases "were not

alleging that they incurred a passed-on cost; rather, the plaintiffs—not the out-of-state entities—were directly assessed the

challenged taxes"). No such government-imposed assessment

is levied against the plaintiffs here.

In a somewhat different context, several of our sister circuits have found standing for wine consumers prevented from

acquiring wine directly from out-of-state wine sellers as a

result of marketplace regulation. See Freeman v. Corzine, 629

F.3d 146, 154 (3d Cir. 2010); Bridenbaugh v. FreemanWilson, 227 F.3d 848, 849-850 (7th Cir. 2000). The plaintiffs

in those cases alleged that they were unable to acquire the

wines they wished to purchase through interstate commerce.

Here, the plaintiffs are not prevented from obtaining the handguns they desire. At worst, they are burdened by additional

costs and logistical hurdles.

These minor inconveniences are distinct from an absolute

deprivation. To obtain a handgun from another state, the

plaintiffs must pay a transfer fee and visit multiple FFLs, but

the laws do not prevent them from exercising their Second

LANE v. HOLDER 7
Amendment right to bear arms. This case thus differs from

those in which courts have found standing for plaintiffs prevented outright from obtaining or possessing firearms. See,

e.g., Ezell v. Chicago, 651 F.3d 684, 695, 698 (7th Cir. 2011)

(finding standing where plaintiffs complained that a ban on

firing ranges within the city, accompanied by a requirement

that firearm owners have completed training at a firing range,

unconstitutionally impaired their Second Amendment right,

emphasizing that "the occasional expense and inconvenience

of having to travel to a firing range in the suburbs . . . [is] not

the relevant constitutional harm"); Dearth v. Holder, 641 F.3d

499, 502-03 (D.C. Cir. 2011) (finding standing where a regulation prevented plaintiff from legally obtaining a firearm in

the United States at all). The plaintiffs in this case do not

allege such an injury. In fact, at least one of them has been

able to purchase a handgun since the beginning of this litigation.3

Because the challenged laws do not burden the plaintiffs

directly, and because the plaintiffs are not prevented from

acquiring the handguns they desire, they do not allege an

injury in fact.

2.

Even if the plaintiffs could demonstrate injury in fact, they

must still establish that their alleged injury is traceable to the

challenged laws.4 The plaintiffs contend that the district court

erred in finding that they failed to do so. The plaintiffs allege

that their injury stems from an inability to obtain their firearms from a store in Virginia, which inhibits them from

3For the same reason, Doe v. Bolton, 410 U.S. 179 (1973), which the

plaintiffs cite in arguing that a restriction in distribution channels constitutes an injury in fact, is distinguishable. As in Dearth and Ezell, the challenged law in Doe prevented the plaintiff from exercising a constitutional

right. 

4Like the district court, the plaintiffs focus on the element of traceability. Because we agree with the district court that traceability is absent,

we do not reach the separate requirement of redressability. 

8 LANE v. HOLDER
obtaining the handguns they want in the manner they desire.

The plaintiffs argue that the associated burden and expense is

a direct consequence of the challenged laws.

As the district court noted, however, any injury to the plaintiffs is caused by decisions and actions of third parties not

before this court rather than by the laws themselves. For this

reason, they face an uphill battle in establishing traceability.

"[W]hen a plaintiff is not the direct subject of government

action, but rather when the ‘asserted injury arises from the

government’s allegedly unlawful regulation (or lack of regulation) of someone else,’ satisfying standing requirements will

be ‘substantially more difficult.’" Frank Krasner Enters., Ltd.

v. Montgomery County, 401 F.3d 230, 234–35 (4th Cir. 2005)

(quoting Lujan, 504 U.S. at 562).

In Krasner, a gun show promoter and a gun show exhibitor

sought to challenge a law that would revoke a subsidy from

any venue that allowed the display or sale of guns on site. Id.

at 232. In response to the law, the venue in which the gun

show promoter had regularly leased space declined to renew

its lease. Id. We determined that the plaintiffs could not establish traceability, as the "purported injury . . . is not directly

linked to the challenged law because an intermediary . . .

stands directly between the plaintiffs and the challenged conduct in a way that breaks the causal chain." Id. at 236.

In challenging laws that do not apply directly to would-be

handgun purchasers, Lane and the Wellings are in a similar

posture to that of the plaintiffs in Krasner.

5

 As was true there,

5The plaintiffs aver that if they take possession of handguns in Virginia,

they will be arrested and prosecuted. Whether or not this is true, the law

prohibits FFLs from conveying the handguns to the plaintiffs in Virginia

in the first place. Moreover, the plaintiffs’ attempts to analogize this case

to Dearth, 641 F.3d 499, are unavailing. In that case, the law at issue precluded the plaintiff from purchasing a firearm altogether. Id. at 504. The

standing question in Dearth was whether the plaintiff alleged an injury in

fact; traceability was not at issue. Id.

LANE v. HOLDER 9
the costs the plaintiffs complain of are not traceable to the

laws they challenge, but to the FFLs that charge transfer fees.

See Krasner, 401 F.3d at 232; see also San Diego County Gun

Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996)

(holding that plaintiffs lacked standing to challenge legislation that, by banning certain guns, resulted in dealers raising

prices on guns and ammunition the plaintiffs wished to purchase, because "nothing in the Act directs manufacturers or

dealers to raise the price of regulated weapons."); cf. Common

Cause v. Dep’t of Energy, 702 F.2d 245, 251 (D.C. Cir. 1983)

(noting that "where injury is alleged to occur within a market

context, the concepts of causation and redressability become

particularly nebulous and subject to contradictory, and frequently unprovable, analyses"). Nothing in the challenged

legislation or regulations directs FFLs to impose such

charges. Because any harm to the plaintiffs results from the

actions of third parties not before this court, the plaintiffs are

unable to demonstrate traceability.

B.

The plaintiffs argue that even if Lane and the Wellings lack

standing, SAF should still be able to bring this action.6 In

determining whether an organization has standing, we must

conduct the same inquiry as in the case of an individual. See

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982).

An organization may suffer an injury in fact when a defen6Because Lane and the Wellings do not have standing to sue, it follows

that SAF does not have associational standing. An association has standing when "(a) its members would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit." Hunt v.

Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). SAF

fails the first prong of Hunt’s associational standing test. Thus, if SAF

were to have standing, it would be as a result of independent injury to it

as an organization. 

10 LANE v. HOLDER
dant’s actions impede its efforts to carry out its mission. See

id. at 379. For instance, in Havens, an organization dedicated

to promoting equal opportunity in housing sued a real estate

company that allegedly practiced racial steering. Because the

defendant’s alleged practices "perceptibly impaired [the organization’s] ability to provide counseling and referral services

for low- and moderate-income homeseekers," a key component of the plaintiff organization’s mission, that plaintiff suffered an injury in fact. Id.

The plaintiffs analogize SAF’s position to that of the organization in Havens. Part of the harm to the organization in

Havens took the form of a drain on its resources, and here the

plaintiffs likewise assert that SAF has been injured because its

"resources are taxed by inquiries into the operation and consequences of interstate handgun transfer provisions." Appellants’ Br. at 33.

This "mere expense" to SAF does not constitute an injury

in fact, however. Although a diversion of resources might

harm the organization by reducing the funds available for

other purposes, "it results not from any actions taken by [the

defendant], but rather from the [organization’s] own budgetary choices." Fair Emp’t Council of Greater Washington, Inc.

v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994). To

determine that an organization that decides to spend its money

on educating members, responding to member inquiries, or

undertaking litigation in response to legislation suffers a cognizable injury would be to imply standing for organizations

with merely "abstract concern[s] with a subject that could be

affected by an adjudication." Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26, 40 (1976); see BMC Mktg., 28 F.3d at

1277; Ass’n for Retarded Citizens of Dallas v. Dallas County

Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19

F.3d 241, 244 (5th Cir. 1994) (noting that finding standing for

an organization that redirects some of its resources to litigation and legal counseling in response to actions of another

party would "impl[y] that any sincere plaintiff could bootstrap

LANE v. HOLDER 11
standing by expending its resources in response to actions of

another"). Such a rule would not comport with the case or

controversy requirement of Article III of the Constitution.

We therefore conclude that neither SAF nor the individual

plaintiffs have standing.

IV.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

12 LANE v. HOLDER