United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2004 Decided February 8, 2005

No. 04-5016

Sandra Seegars, et al.,

Appellants/Cross-Appellees

v.

John D. Ashcroft,

Attorney General of the United States and

Anthony A. Williams, Mayor, District of Columbia,

Appellees/Cross-Appellants

Consolidated with

04-5081

Appeals from the United States District Court

for the District of Columbia

(No. 03cv00834)

Stephen P. Halbrook argued the cause for appellants/

cross-appellees. With him on the briefs was Richard E.

Gardiner.

R. Ted Cruz, Solicitor General, Attorney General's Office 
2

of State of Texas, argued the cause for amici curiae State of 

Texas, et al. in support of appellant. With him on the brief

were Greg Abbott, Attorney General, Troy King, Attorney

General, Attorney General=s Office of State of Alabama,

Charles J. Crist, Jr., Attorney General, Attorney General=s 

Office of State of Florida, Thurbert E. Baker, Attorney

General, Attorney General=s Office of State of Georgia,

Lawrence G. Wasden, Attorney General, Attorney General=s 

Office of State of Idaho, Phill Kline, Attorney General,

Attorney General=s Office of State of Kansas, Charles C. Foti, 

Jr., Attorney General, Attorney General=s Office of State of 

Louisiana, Michael A. Cox, Attorney General, Attorney

General=s Office of State of Michigan, Jim Hood, Attorney 

General, Attorney General=s Office of State of Mississippi, 

Mike McGrath, Attorney General, Attorney General=s Office 

of State of Montana, Jon Bruning, Attorney General, Attorney 

General=s Office of State of Nebraska, Jim Petro, Attorney 

General, Attorney General=s Office of State of Ohio,

Lawrence E. Long, Attorney General, Attorney General=s 

Office of State of South Dakota, Mark L. Shurtleff, Attorney 

General, Attorney General=s Office of State of Utah, Jerry W. 

Kilgore, Attorney General, Attorney General=s Office of

Commonwealth of Virginia, and Patrick J. Crank , Attorney 

General, Attorney General=s Office of State of Wyoming.

Daniel Meron, Deputy Assistant Attorney General, U.S. 

Department of Justice, argued the cause for appellees/crossappellants. With him on the brief were Peter D. Keisler, 

Assistant Attorney General, Kenneth L. Wainstein, U.S.

Attorney, and Mark B. Stern and Lewis Yelin, Attorneys.

Lutz Alexander Prager, Attorney, Office of Attorney

General for the District of Columbia, argued the cause for 
3

appellee The District of Columbia. With him on the brief 

were Robert J. Spagnoletti, Attorney General, and Edward E. 

Schwab, Deputy Attorney General.

Andrew L. Frey, David M. Gossett, Mathew S.

Nosanchuk, and Eric J. Mogilnicki were on the brief for amici 

curiae The Brady Center to Prevent Gun Violence, et al. in 

support of appellee.

Before: SENTELLE and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

Dissenting opinion filed by Circuit Judge SENTELLE.

WILLIAMS, Senior Circuit Judge: Plaintiffs raise Second 

Amendment and local law claims against provisions of the 

District of Columbia’s criminal code that bar them from 

registering and lawfully possessing pistols within the District 

of Columbia, or maintaining firearms in their homes free of 

mandates that they be unloaded and disassembled, or secured 

by a trigger lock. The district court held that the plaintiffs 

lacked standing to challenge the provisions limiting the lawful 

possession of pistols, but that one plaintiff (Hailes) could 

challenge the “trigger lock” provision. Seegars v. Ashcroft, 

297 F. Supp. 2d 201, 203-04 (D.D.C. 2004). Because we find 

that under controlling circuit precedent no plaintiff has 

standing to challenge either provision, we affirm in part and 

reverse in part. 
4

* * * 

D.C. Code § 7-2502.01 prohibits a person from

possessing a firearm in the District of Columbia unless it is 

validly registered. Pursuant to D.C. Code § 7-2502.02(a)(4), 

pistols not already registered before September 24, 1976 may 

not now be registered. And D.C. Code § 22-4504(a) prohibits 

carrying a pistol either openly or concealed on or about one’s 

person without a license within the District of Columbia. As a 

result, it is not possible in the District to purchase and

lawfully possess a new pistol—or indeed any pistol not

registered here three decades ago. A fourth provision requires 

that registrants keep firearms unloaded and disassembled, or 

bound by a trigger lock or similar device, subject to

exceptions for firearms kept at places of business or firearms 

that are being lawfully used for recreationa l purposes in the 

District. See D.C. Code § 7-2507.02. All plaintiffs in this 

case would like to lawfully possess pistols in the District. 

Joint Appendix (“J.A.”) 14-15. Plaintiff Jordan is the only 

plaintiff who owns a pistol, but he stores it outside the District

in order to avoid violating the law. J.A. 15. Plaintiff Hailes 

possesses a shotgun that she stores at her home, and would 

like to remove the trigger lock when she feels endangered. 

J.A. 14-15. Most of the plaintiffs allege that they live in highcrime neighborhoods and would like to possess loaded

weapons in their homes for protection, not secured by a

trigger lock; because of the threat of criminal prosecution,

they forego what they believe would be the additional security 

of possessing pistols or possessing a shotgun ready for

immediate use. Id. Under 28 U.S.C. § 2201 plaintiffs seek a 

declaration that the challenged provisions are unlawful.

No plaintiff in this case has been arrested and prosecuted 

for violating the disputed provisions of the Code, so plaintiffs’
5

case constitutes a “preenforcement” challenge. To meet the 

“case and controversy” requirement of Article III they must 

allege an “injury in fact—an invasion of a legally protected 

interest which is (a) concrete and particularized, and (b) actual 

or imminent, not conjectural or hypothetical.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also 

Nat’l Treasury Employees Union v. United States, 101 F.3d 

1423, 1427 (D.C. Cir. 1996). 

Assessing standing to attack a statute on constitutional 

grounds, the Supreme Court has said:

When the plaintiff has alleged an intention to engage in a 

course of conduct arguably affected with a constitutional 

interest, but proscribed by a statute, and there exists a 

credible threat of prosecution thereunder, he should not 

be required to await and undergo a criminal prosecution 

as the sole means of seeking relief.

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 

298 (1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973))

(internal quotation marks omitted). Compare Regional Rail 

Reorganization Act Cases, 419 U.S. 102, 143 n.29 (1974) 

(suggesting that ripeness for pre-enforcement review of

criminal statutes was to be resolved “on a case-by-case basis, 

by considering the likelihood that the complainant will

disobey the law, the certainty that such disobedience will take 

a particular form, any present injury occasioned by the threat 

of prosecution, and the likelihood that a prosecution will

actually ensue”). 

In addressing the plaintiff’s side of the story, some 

circuits have demanded that he express an unconditional

intention to engage in the proscribed behavior, regardless of 
6

whether the statute is invalidated, see, e.g., San Diego County 

Gun Rights Committee v. Reno, 98 F.3d 1121, 1127 (9th Cir. 

1996) (discussing lack of allegation of a specific time and date 

at which plaintiffs intended to violate the Crime Control Act).

But any such requirement seems inconsistent with our

circuit’s law, see, e.g., American Library Ass’n v. Barr, 956 

F.2d 1178, 1196 (D.C. Cir. 1992); but cf. Martin Tractor Co. 

v. FEC, 627 F.2d 375, 382-83 (D.C. Cir. 1980) (holding 

portion of preenforcement challenge not ripe where appellants 

“allege that their behavior has thus far conformed to the

statutory mandate. They make no allegation of an intention 

imminent or otherwise to violate the statute . . . .”), and has 

been expressly rejected by other circuits, e.g., Mobil Oil Corp. 

v. Attorney General of Virginia, 940 F.2d 73, 75 (4th Cir. 

1991) (“Public policy should encourage a person aggrieved by 

laws he considers unconstitutional to seek a declaratory

judgment against the arm of the state entrusted with the state’s 

enforcement power, all the while complying with the

challenged law, rather than to deliberately break the law and 

take his chances in the ensuing suit or prosecution. ”). 

On the government’s side, the requirement of a credible 

threat of prosecution ensures that the threatened injury be

imminent. Imminence can also be evaluated in terms of

ripeness, but the severity of the required threat is independent 

of the doctrinal hook. See Doe v. Duling, 782 F.2d 1202, 

1206 n.2 (4th Cir. 1986). Unfortunately the adjective

“credible” says little or nothing about the requisite level of 

probability of enforcement, and clarity prevails only at the 

poles. If the threat is imagined or wholly speculative, the 

dispute does not present a justiciable case or controversy. 

Younger v. Harris, 401 U.S. 37, 42 (1971); Golden v.

Zwickler, 394 U.S. 103 (1969). Evidence that the challenged 

law is rarely if ever enforced, for example, may be enough to 
7

defeat an assertion that a credible threat exists. See, e.g., 

D.L.S. v. Utah, 374 F.3d 971, 974-75 (10th Cir. 2004) (no 

standing to challenge the constitutionality of Utah’s sodomy 

statute where plaintiff had never been charged, prosecuted, or 

directly threatened with prosecution, and where prosecutors 

were apparently not actively enforcing the law); Clarke v.

United States, 915 F.2d 699, 701-02 (D.C. Cir. 1990)

(discussing mootness) (no live case or controversy where 

there had been no prosecution under the Anti-Deficiency Act 

and the government had expressed its view that no successful 

prosecution could be maintained). By contrast, actual threats 

of arrest made against a specific plaintiff are generally enough 

to support standing as long as circumstances haven’t 

dramatically changed. See Steffel v. Thompson, 415 U.S. 452, 

459 (1974). 

In United Farm Workers, a union challenged provisions 

of a state statute that made it an unfair labor practice,

punishable with criminal penalties, to encourage consumer 

boycotts of agricultural products by the use of “dishonest,

untruthful and deceptive publicity.” 442 U.S. at 301. The 

state argued that the criminal penalty provision had not yet 

been applied and might never be applied to unfair labor

practices. Id. at 302. The Court found standing, saying that 

“the State has not disavowed any intention of invoking the 

criminal penalty provision against unions that commit unfair 

labor practices,” id., and that the union’s fear of prosecution 

was not “imaginary or wholly speculative,” id. Thus United 

Farm Workers appeared to find a threat of prosecution

credible on the basis that plaintiffs’ intended behavior is

covered by the statute and the law is generally enforced. 

Courts have often found that combination enough, especially 

where plaintiffs seek to engage in activities possibly protected 

by the First Amendment, see, e.g., Mangual v. Rotger-Sabat, 
8

317 F.3d 45, 57 (1st Cir. 2003) (citing New Hampshire Right 

to Life PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996)), but not 

exclusively in such cases, see Hejira Corp. v. MacFarlane, 

660 F.2d 1356, 1360 (10th Cir. 1981) (plaintiffs had standing 

to challenge drug paraphernalia statute even where no 

criminal prosecutions had been commenced and no specific 

arrest threatened). But courts have also found the absence of

a specific threat fatal. See, e.g., San Diego County Gun 

Rights Committee, 98 F.3d at 1127. 

Related to but distinct from the requisite likelihood of 

enforcement is a possible requirement that the plaintiffs 

occupy a position different from that of others who

(conditionally) intend to commit acts that would violate the 

statute. The district court used language arguably reflecting

such a view: “A generalized grievance, which is presumably 

shared with many other citizens of the District of Columbia, 

without an imminent threat of prosecution or another type of 

injury-in-fact (i.e., economic harm), is not sufficient to confe r 

standing to the plaintiffs.” Seegars, 297 F. Supp. 2d at 214. 

To the extent that this language implied that plaintiffs 

must be individually or specifically burdened in a way distinct 

from some broader class of potential prosecutees, it is at

variance with Supreme Court precedent. Although injuries 

that are shared and generalized—such as the right to have the 

government act in accordance with the law—are not sufficient 

to support standing, see Allen v. Wright, 468 U.S. 737, 754

(1984), “where a harm is concrete, though widely shared, the 

Court has found injury in fact.” FEC v. Akins, 524 U.S. 11, 

24 (1998) (internal quotation marks omitted); see also Public 

Citizen v. United States Dep’t of Justice, 491 U.S. 440, 449-50 

(1989) (plaintiffs had standing to challenge non-disclosure of 

information even where innumerable other parties might make 
9

identical requests for disclosure). Although the political arena 

may prove appropriate to correct illegal injuries inflicted on 

much of the public, the fact that an injury is shared, so long as 

it is concrete enough, doesn’t preclude standing. FEC v.

Akins, 524 U.S. at 24-25 (giving examples of mass tort

injuries or injury involving widespread interference with

voting rights). 

For preenforcement challenges to a criminal statute not 

burdening expressive rights and not in the form of appeal

from an agency decision, our circuit’s single post-United 

Farm Workers case appears to demand more than a credible 

statement by the plaintiff of intent to commit violative acts 

and a conventional background expectation that the

government will enforce the law. In Navegar, Inc. v. United 

States, 103 F.3d 994 (D.C. Cir. 1997), we dealt with a

preenforcement challenge by two manufacturers to provisions 

of the Violent Crime Control and Law Enforcement Act of 

1994, 108 Stat. 1796, that made it unlawful to manufacture or 

possess a semiautomatic assault weapon. 103 F.3d at 997. 

Portions of the statute prohibited weapons by name that were 

manufactured only by specific companies. See id. With

respect to these provisions, we found preenforcement standing 

because the provisions essentially singled out the companies 

by name, id. at 1000, saying that for those weapons the threat 

of prosecution could be deemed speculative “only if it is

likely that the government may simply decline to enforce

these provisions at all.” Id. But we found no standing for the 

companies to challenge portions of the statute that described 

prohibited weapons only by general characteristics rather than 

by name. Id. at 1001. 

We cannot help noting that Navegar’s analysis is in sharp 

tension with standard rules governing preenforcement 
10

challenges to agency regulations, where an affected party may 

generally secure review before enforcement so long as the

issues are fit for judicial review without further factual

development and denial of immediate review would inflict a 

hardship on the challenger—typically in the form of its being 

forced either to expend non-recoverable resources in

complying with a potentially invalid regulation or to risk

subjection to costly enforcement processes. Abbott Labs. v. 

Gardner, 387 U.S. 136, 149 (1967); Toilet Goods Ass’n v. 

Gardner, 387 U.S. 158, 164 (1967); Gardner v. Toilet Goods 

Ass’n, 387 U.S. 167, 170 (1967); Clean Air Implementation 

Project v. EPA, 150 F.3d 1200, 1204 (D.C. Cir. 1998). See 

also Chamber of Commerce v. FEC, 69 F.3d 600, 604 (D.C. 

Cir. 1995) (“an agency rule, unlike a statute, is typically

reviewable without waiting for enforcement”). The passage 

from United Farm Workers quoted at the outset alludes to 

precisely this hardship. 

One might explain our greater readiness to hear

challenges to regulations than to statutes on the ground that 

challenges to a statute bring into play all the conventional

reasons to avoid premature constitutional adjudications. That 

answer seems weak, as courts reviewing agency action

commonly give preenforcement review not only to statutory 

claims but to constitutional attacks on the underlying statute. 

See Time Warner Entertainment Co. v. FCC, 93 F.3d 957, 

965, 973 (D.C. Cir. 1996). Cf. General Electric Co. v. EPA, 

360 F.3d 188 (D.C. Cir. 2004) (interpreting explicit limit on 

review as not precluding preenforcement review of facial due 

process challenge to statute). 

There is also tension between Navegar and our cases 

upholding preenforcement review of First Amendment

challenges to criminal statutes. See, e.g., Chamber of
11

Commerce v. FEC, 69 F.3d at 603-04; see also American 

Library Ass’n, 956 F.2d at 1194, 1196 (finding no plaintiff 

with standing, but demanding only that plaintiffs show an

intent to commit acts that would really or arguably violate the 

provisions challenged). Such cases here and in other courts 

appear to have rested on the special concern for “chilling

effects” on speech. See, e.g., Chamber of Commerce v. FEC, 

69 F.3d at 604; New Hampshire Right to Life PAC, 99 F.3d at 

12. Yet, while there is a special First Amendment standing 

doctrine allowing a party in some circumstances to challenge 

a provision on the ground that it violates the rights of someone 

other than the plaintiff himself, see, e.g., Virginia v. American 

Booksellers Ass’n, 484 U.S. 383, 392-93 (1988), the idea of a 

special First Amendment rule for preenforcement review of 

statutes seems to have no explicit grounding in Supreme Court 

decisions. In United Farm Workers, for example, although 

plaintiffs in fact attacked the statute on First Amendment 

grounds, the Court conspicuously neglected to mention the

point in its discussion of standing. United Farm Workers, 442 

U.S. at 297-302. 

Despite these apparent tensions, we faithfully apply the 

analysis articulated by Navegar. We do so not because it 

represents our “law of firearms.” See generally Frank H.

Easterbrook, Cyberspace and the Law of the Horse, 1996 U. 

Chi. Legal F. 207, 207-08 (1996). We do so because it

represents the only circuit case dealing with a non-First 

Amendment preenforcement challenge to a criminal statute 

that has not reached the court through agency proceedings. 

See LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) 

(en banc).
12

* * * 

Pistols. All plaintiffs allege that but for D.C. Code §§ 7-

2502.02(a), 22-4504(a), they would obtain and register pistols 

to keep and carry in their homes in the District. J.A. 14-15, 17. 

Plaintiff Jordan already owns a pistol that he stores outside the 

District, which he would register and keep in the District but 

for the Code. J.A. 15. The district court held that the pistol 

plaintiffs lacked standing because they face no credible threat 

of imminent prosecution under the District’s gun laws.

Seegars, 297 F. Supp. 2d at 213-14.

Whatever the ultimate understanding of the Second

Amendment, compare Silveira v. Lockyer, 312 F.3d 1052 (9th 

Cir. 2002), with United States v. Emerson, 270 F.3d 203 (5th 

Cir. 2001), the conduct that plaintiffs would engage in is at 

least arguably affected with a constitutional interest, but

proscribed by a statute. Thus, the first requirement of United 

Farm Workers and Navegar is satisfied. 

We agree with the district court, however, that the pistol 

plaintiffs have not shown a threat of prosecution reaching the 

level of imminence required by Navegar. See 103 F.3d at 

1001. Plaintiffs note that the District’s gun laws are enforced, 

see Reply Brief for Appellants/Cross-Appellees at 4, and 

indeed cite the District’s position in prior litigation, declaring 

that it enforces its gun laws, prosecuting “all violators of the 

statute under normal prosecutorial standards.” Austin v.

United States, 847 A.2d 391, 393-94 (D.C. 2004) (discussing 

regulation of concealed weapons). But plaintiffs allege no 

prior threats against them or any characteristics indicating an 

especially high probability of enforcement against them. As 

was true for the claims found non-justiciable in Navegar, 

“nothing . . . indicates any special priority placed upon
13

preventing these parties from engaging in specified conduct.” 

103 F.3d at 1001 (emphasis added); see also Lion Mfg. Corp. 

v. Kennedy, 330 F.2d 833, 839 (D.C. Cir. 1964). 

Plaintiff Jordan presents a slightly different case, as he 

currently owns a pistol, which he stores outside the District. 

But this improves only the assurance of his conditional intent 

to commit acts that would violate the law, an assurance that is 

adequate even for the other plaintiffs. As is true of the other 

pistol plaintiffs, there is nothing in the record to indicate that 

he has been personally threatened with prosecution or that his 

prosecution has “any special priority” for the government. 

See Navegar, 103 F.3d at 1001. 

Plaintiffs correctly argue that Peoples Rights

Organization, Inc. v. Columbus, 152 F.3d 522, 528-29 (6th 

Cir. 1998) (“PRO”), supports preenforcement standing in

precisely this circumstance. There the Sixth Circuit 

entertained a preenforcement challenge to Columbus’s assault 

weapons ban. It held the plaintiffs—owners of weapons who 

were allegedly uncertain as to whether the ordinance

prohibited their weapons—faced a clear Hobson’s choice: 

“They can either possess their firearms in Columbus and risk 

prosecution under the City’s law, or, alternatively, they can

store their weapons outside the City, depriving themselves of 

the use and possession of the weapons.” PRO, 152 F.3d at 

529. The court found the costs of selecting either option high 

enough to support a preenforcement challenge. Id. at 529-30. 

But see National Rifle Association v. Magaw, 132 F.3d 272, 

293-94 (6th Cir. 1997).

But PRO is plainly inconsistent with Navegar. Indeed, 

the imminence of enforcement appears to have been greater in 

Navegar, as in that case agents of the Bureau of Alcohol,
14

Tobacco and Firearms had visited the plaintiff gun 

manufacturers, alerted them to the prohibitions in question,

and conducted inventories of the ir firearms stocks, including 

those of the weapons about to be barred. 103 F.3d at 997, 

1001.

Thus the district court here was correct not to follow

PRO, which applied a far less stringent standard than

Navegar. But it distinguished PRO on the ground that the 

need for judicial intervention was stronger there because the 

case included a vagueness challenge. Seegars, 297 F. Supp.

2d at 213. We think that an incorrect basis of distinction. We 

see no reason why plaintiffs whose proposed conduct is

merely possibly barred by statute should be preferred over 

ones—like those here—whose proposed conduct is

indisputably barred. 

Under Navegar, therefore, we affirm the decision of the 

district court that no plaintiff challenging the District’s pistol 

provisions in this case has presented a justiciable case or

controversy. 

Trigger Lock. Plaintiff Hailes possesses a shotgun that 

she keeps in her home secured by a trigger lock. J.A. 15. She 

alleges that but for the D.C. Code she would “remove the 

trigger lock when she deems it necessary to defend herself in 

her home.” Id. The district court concluded that Hailes had 

standing because she must maintain the trigger lock on her 

shotgun and forego possibly lawful activity because of her 

“well-founded fear of prosecution.” Seegars, 297 F. Supp. 2d 

at 217. To distinguish Hailes from the rest of the plaintiffs,

the district court relied on the fact that Hailes had no

administrative remedy. See id. at 216. Unlike the plaintiffs 

challenging the pistol regulation, who could apply to register 
15

the pistol and then subsequently challenge the inevitable

denial, Hailes was left to either leave the trigger lock on her 

shotgun or remove it and risk criminal prosecution. Id. 

But the lack of an administrative remedy, while it

increases the hardship resulting from denial of preenforcement 

review, still does not enable Hailes to meet the Navegar test. 

In that case the manufacturers denied standing had no

administrative remedy, at least so far as appears, and yet we 

held their challenge (to the provisions that didn’t identify their 

unique brands) non-justiciable simply because we found the 

threat of prosecution inadequate, even though the visiting

BATF agents had taken an inventory of their soon-to-beprohibited weapons. Navegar, 103 F.3d at 1001. While an 

unused administrative remedy’s presence will often defeat

adjudication under doctrines of ripeness, finality or

exhaustion, its absence is not enough to render a claim

justiciable if the imminence of the threatened injury is

inadequate—as is true here under Navegar.

Accordingly, because no plaintiff has demonstrated a 

threat of prosecution sufficiently imminent under circuit law,

we have no justiciable case or controversy before us. 

Therefore, we do not reach the merits. The judgment of the 

district court is 

Affirmed in part and reversed in part. 
SENTELLE, Circuit Judge, dissenting: While I commend the

balanced tone and thoroughness of the majority opinion, I find

that after examining the authorities discussed therein, I reach a

different conclusion. As the court relates, plaintiffs seek to

challenge the provisions of the District of Columbia’s Criminal

Code limiting the possession of pistols, as violative of their

Second Amendment rights to keep and bear arms. The District

Court held that they had no standing. Today this court has

affirmed.

I would find standing based on the authority of cases cited

by the majority. The record offers essentially undisputed

evidence of the appellants’ intent to engage in gun-related

conduct prohibited by the challenged Code provisions, but for

the existence of those provisions. Appellants adequately allege

and argue that this conduct is protected by the Second

Amendment to the United States Constitution.

 

The Supreme Court has said, as the majority quotes:

When the plaintiff has alleged an intention to engage in a

course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists a

credible threat of prosecution thereunder, he should not be

required to await and undergo a criminal prosecution as the

sole means of seeking relief.

Babbitt v.United Farm Workers Nat’l Union, 442 U.S. 289,298

(1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973)) (internal

quotation marks omitted). The majority’s further analysis of

United Farm Workers is directly on point:

In United Farm Workers, a union challenged

provisions of a state statute that made it an unfair labor

practice, punishable with criminal penalties, to encourage

consumer boycotts of agricultural products by the use of

“dishonest, untruthful and deceptive publicity.” 442 U.S.
2

at 301. The state argued that the criminal penalty provision

had not yet been applied and might never be applied to

unfair labor practices. Id. at 302. The Court found

standing, saying that “the State has not disavowed any

intention of invoking the criminal penalty provision against

unions that commit unfair labor practices,” id., and that the

union’s fear of prosecution was not “imaginary or wholly

speculative,” id. Thus United Farm Workers appeared to

find a threat of prosecution credible on the basis that

plaintiffs’ intended behavior is covered by the statute and

the law is generally enforced.

Maj. Op. at 7. As appellants allege a similarly realistic fear of

prosecution, I would hold United Farm Workers controlling, and

conclude that appellants have standing to bring the Second

Amendment challenge.

As the majority notes, a long line of cases upholds preenforcement review of First Amendment challenges to criminal

statutes by plaintiffs with bases for standing no different than

that asserted by appellants herein for their Second Amendment

challenge. For example, in Virginia v. American Booksellers

Ass’n, 484 U.S. 383 (1988), plaintiffs brought a suit challenging

the constitutionality of a newly enacted Virginia statute

criminalizing the display for commercial purposes of visual or

written material that “depicts sexually explicit nudity, sexual

conduct, or pseudo-masochistic abuse which is harmful to

juveniles.” Va. Code § 18.2-391(a) (Supp. 1987). The

Commonwealth of Virginia argued that plaintiffs lacked

standing, because they had not yet been prosecuted under the

Act. The Supreme Court, in discussing the standing question,

declared itself “not troubled by the pre-enforcement nature of

this suit.” American Booksellers, 484 U.S. at 393. Because “the

state ha[d] not suggested that the . . . law will not be enforced,”

and the Court saw no reason to assume that it would not be, the
3

Court found standing, “conclud[ing] that plaintiffs have alleged

an actual and well-founded fear that the law will be enforced

against them.” Id. I see no distinction between that case and

this.

As the Supreme Court further noted in American

Booksellers, the danger of the statute before it could “be realized

even without an actual prosecution.” Id. Needless to say, the

harm lay in self-censorship–that is, the curtailing of an otherwise

constitutional activity because of an allegedly unconstitutional

criminal statute. The only difference between that harm and the

harm alleged in this case is that there it was to First Amendment

interests, here to Second. I know of no hierarchy of Bill of

Rights protections that dictates different standing analysis.

I acknowledge, as the majority notes, that a case from this

circuit, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir.

1997), is in tension with “cases upholding pre-enforcement

review of First Amendment challenges to criminal statutes.”

Maj. Op. at 10. In Navegar, plaintiff-appellants sought

declaratory judgment striking down as unconstitutional

provisions of the Violent Crime Control and Law Enforcement

Act of 1994, which outlawed firearm products manufactured by

appellants, some by name, and others by description. While we

found standing to challenge the regulation of the named

products, we held there was no standing as to the products

outlawed only by description. See Navegar, 103 F.3d at 1001.

The Navegar court found the threat of prosecution under the

provisions outlawing products by description insufficiently

imminent to support standing on the record before it. Those

latter provisions outlawed firearms in language so general that

the court found “it impossible to foretell precisely how these

provisions may be applied.” Id. Further, the Navegar court

found insufficient evidence of the government’s intent to

enforce the “generic portions of the Act” against the specific
4

parties before it. Id. 

While I acknowledge that the majority is correct that

Navegar can be read as controlling the case before us and

barring standing, I think it is distinguishable. The allegedly

constitutionally protected conduct in the record before us is

clearly defined and clearly unlawful under a statute that the

District apparently enforces regularly, and under which there is

certainly no doubt that plaintiffs reasonably apprehend

enforcement. I would therefore find the line of cases

represented by American Booksellers, rather than Navegar,

controlling.

For the reasons set forth above, I respectfully dissent.