Standing has always been a useful concept for courts who don’t want to hear or decide on the specifics of a case, to have a convenient way to dispose of the case without having to reach there. So the FBI has been taking NICS check data and cross referencing it to the Terrorist Screening Database for a number of years now.

Here you have two theories of standing. One is that because the cross reference didn’t in any material way affect your ability to buy a gun, you have no standing to sue. Only someone who is singled out for different treatment because of the cross reference has standing. The other theory is that because your purchasing information has been used in a way not authorized by law, that the mere act of having your data cross referenced to another database creates standing in and of itself.

Guess which theory of standing was adopted by the federal courts so far? If that theory holds, no one would have standing since the FBI doesn’t use the screen to influence the person’s NICS status. It presumably just creates an alert. The cross reference might be illegal on the part of the FBI, but no one can challenge it.

8 thoughts on “Standing”

  1. I’m just thinking out loud, as I often do, but it seems to me that in addition to the conventional legal theory of “standing,” it should be added that anyone with a plausible claim that the law or the constitution is being violated, has standing as a result of all society being injured by a failure or breakdown of the law.

    To prevent chaos in the courts resulting from frivolous claims, perhaps there could be a citizens board or jury that decided whether such claims were plausible before they were forwarded to the courts. After the courts have them, they would be required to judge the legitimacy of the claim.

    (Just one of a collection of ideas for our next constitution.)

  2. Can the legislature itself sue if the executive branch is skirting the law? (But if the bureaucracy ignores the law, how effective would a court decision be?)

    1. “Can the legislature itself sue if the executive branch is skirting the law?”

      Possibly that varies from state to state? I’ve wondered about that for a long time.

      About 20 years ago, when it was first being recognized that the provision in the new Uniform Firearms Act in Pennsylvania banning the Pennsylvania State Police (PSP) from using the new PA Instant Check System (PICS) to maintain a firearms registry, was not being obeyed by the cops, 20 – 21 Republican legislators who had voted for the new gun control law wrote a “letter of concern” to the PSU. My group at the time wrote a letter to each of those legislators saying in effect (but nicely) “you’re the guys responsible for the law, and should be the authorities on what you thought it meant; why don’t you file suit to make the PSP change their ways? It’s your law they’re violating!”

      Needless to say, they didn’t answer, but instead ran whining to the other gun rights groups in the state about how we had insulted them so badly with our question that some of them were thinking about turning anti-gun. By which I assume they meant, more anti-gun than they had needed to be to vote for the law in the first place.

  3. Yep- standing is a way for courts to get out of doing their job. In theory, standing is a good principle- if there is no controversy, there should be no case, reducing frivilous claims, courts workload, and money. But they use the standing excuse to get out of deciding legitimate issues because they like the result.

  4. The generic “standing” issue is worthy. However, I’m more concerned about the leakage of NICS inquiries outside the narrow limitations authorized by the Brady law.

    Prescinding from the debate over the efficacy of the NICS laws: What do we make of the FBI using NICS data-flow in a manner not authorized by Congress? FBI was authorized by Congress to so certain enumerated things with the data and proscribed from doing certain enumerated other things. Now, we discover that FBI has beed doing something certainly not contemplated as an authorized use; and, arguably prohibited under Congressional prohibitions.

    Whether or not this SPECIFIC non-authorized use is a good/bad idea, it’s not an authorized use and it is arguably a prohibited use. It is incumbent upon Congress to authorize such use if that is it’s pleasure, or, in the alternative, to revise the language of the Brady act to clarify that any such use – or analogous use – is unlawful.

    The most important issue raised by this case is to stop the FBI from exercising its creativity in using NICS data-flow other than as expressly authorized by Congress.

  5. There are aspects of standing that have always bothered me. Clearly, this is one, where odd things are being done with your personal information, ought to be a place where you have standing.

    Another avenue that has bothered me is when a law has been passed that you think is unConstitutional, you have to break the law in order to have standing to challenge it. Examples include a man from what later became Utah having to marry a second wife to challenge the Federal law against polygamy, and the man who made a machine gun to challenge the ban on new machine guns.

    In the first case, the Court found that that the polygamy ban was unConstitutional; in the second, the judge over the case wouldn’t even permit the man to defend his actions through the Second Amendment! (How in the world can a judge tell the defense what arguments they can and cannot make?!?)

    In both cases, the men served jail time.

    I can’t help but wonder: why can’t the mere desire to break a law be sufficient for establishing standing? And if there’s a good reason for it not to be, why doesn’t the court show leniency for those who break the law for purposes of establishing standing — make a single case a “freebee”, where, once a law is established as Constitutional, the individual is set free, and every individual after that is stuck with their sentences?

    There are other things that bother me about standing, but overall, I have to agree that it’s a principle that in general makes sense, but in practice can be a way for courts to weasel out of making important decisions.

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