Plaintiff Has Standing to Challenge Ban on Gun Buying by Americans Who Live Outside the U.S.

So holds Dearth v. Holder, decided today by the D.C. Circuit:

Plaintiffs Stephen Dearth and the Second Amendment Foundation, Inc. (SAF), seeking declaratory and injunctive relief, claim that portions of 18 U.S.C. § 922 and related regulations are unconstitutional because they prevent Dearth from purchasing a firearm. The district court dismissed the suit for lack of standing. Because we conclude Dearth does have standing, we reverse the judgment of the district court and remand the case to the district court for further proceedings….

The plaintiffs challenge 18 U.S.C. §§ 922(a)(9) and (b)(3) and implementing regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which together make it impossible for a person who lives outside the United States lawfully to purchase a firearm in the United States. Section 922(a)(9) makes it unlawful for “any person … who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes.” Accord 27 C.F.R. § 478.29a. Section 922(b)(3) prohibits the sale or delivery of a firearm by a licensed dealer to “any person who the licensee knows or has reasonable cause to believe does not reside in … the State in which the licensee’s place of business is located,” except this prohibition does “not apply to the loan or rental of a firearm … for temporary use for lawful sporting purposes.” …

Dearth is an American citizen who resides in Canada and no longer maintains a residence in the United States. In 2006 and again in 2007 Dearth attempted to purchase a firearm in the United States. On both occasions, he “could not provide a response to Question 13” on account of his residing in Canada; therefore “the transaction was terminated.” Dearth alleges he still intends, if he may do so lawfully, to purchase firearms in the United States for the purposes of sporting and self-defense, and to store those firearms with his relatives in Ohio….

The court concluded that the government’s denial of Dearth’s past applications to buy a gun, coupled with his intent to come to the U.S. again soon, means that he has the sufficiently particularized, nonconjectural interest that entitles him to standing to challenge the law. Congratulations to Alan Gura, who won the Heller and McDonald cases, on this latest success.

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