# 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
Anth ony 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 Office2

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 Offic e 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 Stat

e 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. Shurtlef f , 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 Mero n , Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees/cross

appellants. With him on the brief were Peter D. Keisler

, Assistant Attorney General, Kenneth L. Wainstein , U.S. Attorney, and Mark B. Stern and Lewis Ye lin , Attorneys.

Lutz Alexander Prager , Attorney, Office of Attorney General for the District of Columbia, argued the cause for3

appellee The District of Columbia. With him on the brief

were Robert J. Spagnoletti , Attorney General, and Edward E.
Schwab , D eputy 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: S ENTELLE

and T

ATEL

, Circuit Judges

, and
W ILLIAMS

, Senior Circuit Judge

.

Opinion for the Court filed by Senior Circuit Judge
W ILLIAMS

.

Dissenting o pinion filed by Circuit Judge S ENTELLE

.

W ILLIAMS

, 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 register ing and lawfully possess ing pistols within the District
of Columbia , or maintain ing firearms in their homes free of mandates that they be unloaded and disassembled, or secure d by a trigger lock. The district court held that the plaintiffs lacked standing to challenge the provisions limiting t he 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 pa rt and reverse in part.4

* * *

D.C. Code § 7

- 2502.01 prohibits a person from

posse ssing a firearm in the District of Columbia unless it is validly registered. Pursuant to D.C. Code § 7

- 2502.02(a)(4)

, p istols not already registered before September 24, 1976 may not now be registered. And D.C. Code § 22

- 4504(a) prohibits carrying a pist ol either openly or concealed on or about one’s

person without a license within the District of Columbia. As a result, it is no t

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 high

crime 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 p istols or possessing a shotgun ready for
immediate use

. Id

. Under 28 U.S.C. § 2201 plaintiffs seek a
declaration that the challenged provisions are unlawfu l

.
No plaintiff in this case has been arrested and prosecuted for violating the disputed provisio ns 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 particula rized, 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 allege d 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 o f 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)) (inte rnal 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 likeliho od 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 a ddressing the pl aintiff’s side of the story, some circuits have demanded that he express an unconditional intention to engage in the proscribed behavior, regardless of6

whether the statute is invalidated, see, e.g., San Diego County Gun Rights Comm ittee v. Reno , 98 F.3d 11 21 , 1127 (9th C ir. 1996) ( discussing lack of allegation of a specific time and date at which plaintiffs intend ed to violate the Crime Control Act)

. But a ny such requirement seems inconsistent with our circuit’s law, see, e.g., American Library Ass’n v. Ba rr , 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 ma ndate. 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 polic y 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 deliberate ly break the law and take his chances in the ensuing suit or prosecution. ”).

On the government’s side, t he requirement of a

credible threat of prosecution ensures that the threatened injury be
imminent

. Imminence can also be evaluated in terms of ripene ss, 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). Unfortunate l y the adjective “credible” says little or nothing about the requisite level of probability

of enforc ement

, and clarity prevail s 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 (196 9 ). E vidence that the challenged law is rarely if ever enforced , for example, may be enough to7

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, 70 1

- 02 (D.C. Cir. 1990) (discussing m

ootness) ( no live case or controversy where there had been no prosecution under the Anti

- Deficiency Act and the government ha d expressed its view that no successful prosecution could be maintained)

. By contrast

, actual threats of arrest made against a spe cific plaintiff are g e nerally enough to support standin g as long as circumstances have n ’ t dramaticall y 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 n ot yet been applied and migh t 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 prac tices

, ” id ., and that the union’s fear of prosecution
was not “im agina ry

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 t he 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, s ee , 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, 1 3 (1st Cir. 1996) ) , but not exclusively in such cases, see Hejira Corp. v. MacFarlane

, 660 F.2d 1356, 1360 (10th Cir. 1981) (p laintiffs 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 requi site 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 reflect ing

suc h 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
fr om som

e broader class of potential prosecute e s, it is at
variance with Supreme Court precedent. Although injuries
that are shared and general ized

— 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, t hough 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 make9

identical request

s 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 s hared, so long as
it is concrete enough , does n ’ 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 statu te 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 conventi

onal 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 Enforc ement Act of 1994, 108 Stat. 1796, that made it unlawful to manufacture or possess a semiautomatic assault weapon. 103 F.3d at 997

. P ortions of the statute prohibited weapons by name that were
manufactured only by specific companies. See id

. With

respe ct to these provisions, we found preenforcement standing because the provisions essentially si ngled out the companies by name, i d . at 1000 , saying that for those weapons the threat of prosecution could be deemed speculative “only if it is likely that the g

overnment 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.

W e cannot help noting that Navegar ’s a nalysis is in sharp
tension with standard rules governing preenforcement10

challenges to agency regulations, where an affected party may generally secure review before enforcement so long as the
issues are fit for judicia l 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 o r to risk subjection to costly enforcement p rocesses

. 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 a t the outset alludes to precisely th

is hardship

.

One might explain our greater readiness to hear challenges to regulations than to statutes on the ground that challenge s to a statute bring into play all the conventional reasons to avoid premature constit utional adjudications. That answer seems weak, as courts reviewing agency action

c ommonly 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 9 57,
965 , 973 (D.C. Cir. 1996)

. Cf. G eneral E lectric Co. v. EPA

, 360 F.3d 188 (D.C. Cir. 2004) (interpreting explicit limit on
review as not preclud ing preenforcement review of facial due process challenge to statute).

There is also tension between Naveg ar and our cases upholding preenforcement review of First Amendment challenges to criminal statutes. See, e.g., Chamber of11

Commerce v. FEC , 69 F.3d at 603

- 04 ; s ee also American Library Ass’n

, 956 F.2d at 1194, 1196 (finding no plaintiff with standing, but demand ing 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 Supr eme 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 th

ese apparent tensions, we faithfully apply the analysis articulated by Navegar

. W e do so not because it represents our “law of firearms.” See generally Frank H. Easterbrook, Cyberspace and the L aw 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

- F irst Amendment preenforcement challenge to a criminal statute
that has not reached

the court

through agency proceedings

. See LaShawn v. Barry

, 87 F.3d 1389, 139 5 (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

.

W hatever the ultimate understanding of the Second Amendment, compare Silveira v. Lockyer , 312 F.3d 1052 (9th
Cir. 200 2 ), 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 interes t, but proscribed by a statute. Thus, the first requirement of United
Farm Workers and Navegar is satisfied.

W e agree with the district court , however, th at 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

,
s ee Reply Brief for Appellants/Cross

- Appellees at 4

, an d
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 , 8 47 A.2d 391, 393

- 94 (D.C. 2004) (discussing

regu lation 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

. . . in

dicates any special priority placed upon13

preventing these parties

fro m 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 diffe rent 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 i s t rue of the other pistol plaintiffs

, t here 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.

P laintiffs corre ctly 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 Cir cuit entertained a preenforcement challenge to Columbus’s assa ult 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 th

e costs of selecting either option high enough to support a preenforceme nt challenge

. Id . at 5 29

- 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 a gents 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

.

Th us 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 include d 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

— w hose pro posed conduct is indisputably barred.

Under Navegar , therefore, we affirm the decision of the
district court that no plaintiff challenging the District’s pistol provision s in this case has presented a justiciable case or controversy.

Trigger Lock

. Pla intiff 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 deem s it necessary to defend herself in
her home.” Id . The district cour t 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 register15

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 pros ecution. Id

.

But the lack of an administrative remedy , while it increases the hardship resulting from denial of preenforcement review, still do es 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

- justic iable simply because we found the threat of prosecution inadequate, even though the visiting BATF agents had taken an inventory of their soon

- to

- be

prohibited 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 t hreatened injury is inadequate

— as is true here under Navegar

.
Accordingly, b ecause no plaintiff has demonstrated a threat of prosecution sufficiently imminent under circuit law

, we have no justiciable case or controversy before us. Therefore, w e do not reach the merits. The judgment of the
district court is

A

ffirmed in part and reversed in part

.S ENTELLE
, C ircuit Judge

, dissenting : While I commend the
balanced tone and thoroughness of the majority o pinion, I find
that after examining the authorities discussed th erein, I reach a
different conclu sion. As the court relates, plaintiffs seek to challenge the provisions of the Dis trict 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’ inten t to engage in gun-related
conduct prohibited by the chall enged 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 plainti

ff 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 prosecuti on thereunder, he should not be required to await and undergo a criminal prosec ution 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 omitt

ed). 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, pun

ishable with criminal penalties, to encourage

consumer bo ycotts 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
h ad 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 agains t unions t hat commit unfair labor practices,” i d.

, and that the
union’s fear of

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

nited Farm Workers appeared to find a t hreat 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

c onclude that appellants have standing to bring the Seco n d Amendment challenge.

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

statutes by plaint iffs with bases for standing no different than
that asserted by appellants herein for their Second Amendment challenge. For example, in V irginia v. Ame r ican Booksellers
Ass’n , 484 U.S. 383 (1988), plaintiffs brought a suit challenging
the constitutionality of a newly enacted Virginia statute criminaliz ing the display for commercial purposes of visual or
written materi

al 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 no t be, the3

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

an actual and well-founded f ear that the law will be enforced against them.” I

d. I see no distinction between that case and
this.

As the Supreme Court f urther noted in A merican
Booksellers

, the danger of the statute before it could “be realized even without an actual prosecution.” I d. Needless to say, the
harm lay in self-censorship–that is, the curtail ing of an otherwise
constitutional activity be cause 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 Firs t Amendment interests, here to Second. I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.

I ac knowledge, 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

r eview of First Amendment challenges to criminal statutes.”
Ma j

. Op. at 10. In N avegar , plaintiff-appellants sought declaratory judgment striking down as unconstitutional

p rovisions of the Violent Crime Control and Law Enforcem ent A ct 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 nam e d products, we held there wa s no standing as to the products outlawed only by description. S ee Navegar

, 103 F.3d at 1001.
The Navegar court found the threat of prosecutio n under the provisio ns outlawing products by description insufficiently
imminent to support standing on the record before it. Those
latter provisions outlawed firearms in lang uage so general that
the court found “it impossible to foretell precisely how these provi sions may be applied.” I d. Further, the N

avegar court found insufficient

evidence of the government’s intent to
enforce the “generic portions of the Act” against the specific4

parties before it. Id.

While I acknowledge that the majority is correct that Navegar can be read as controlling t he case before us and
barrin g standing, I think it is distinguishable. The allegedly constitutionally protected conduct in th e record before us is clearly defined and clearly unlawful under a statute that the
District apparently enforces regularly, and under whi ch there is certainly no doubt that plaintiffs reasonably apprehend
enforcem ent. I would therefore find the line of cases represented by American Booksellers

, rather than N avegar , controlling.

For the reasons set forth above, I respectfully dissent.