The opinion of the court was delivered by: GREENE
This action challenges the constitutionality of 10 U.S.C. § 4308(a)(5) which directs the Department of the Army to sell firearms at cost to members of the National Rifle Association of America (NRA).
It is claimed by plaintiffs that the statute violates their rights under the First Amendment and under the equal protection guarantee of the Fifth Amendment.
Section 4308(a)(5) establishes a firearms sales program as part of a larger Civilian Marksmanship Program which, among other things, provides for the construction and maintenance of rifle ranges; helps to administer rifle matches; and instructs civilians in marksmanship. See 10 U.S.C. § 4307-13. The program, which is overseen by the National Board for the Promotion of Rifle Practice (NBPRP),
was initiated in 1903 for the purpose of improving marksmanship skills among citizens in order that those called to military service might be more proficient marksmen and require less training.
In 1905 Congress authorized the sale of Army firearms to rifle clubs affiliated with the NRA (P.L. 58-149, 33 Stat. 986), and in 1924 it enacted the present statute by way of a floor amendment to the War Department's Appropriations Act of 1924 (P.L. 68-213, 43 Stat. 509-510).
Since the time of the enactment of the statute, the Army has been selling rifles to members of the NRA at cost, that is, at prices substantially below market.
Sales figures for the early years are unavailable, but after World War II rifles were sold in substantial numbers. During the period 1960 to 1967 the Army sold tens of thousands of firearms each year to NRA members, including rifles, shotguns, and pistols.
In 1968 the program was reduced substantially, apparently because of the Vietnam war. While the Army plans to sell only 600 M-1 rifles in 1979, the Director of the Civilian Marksmanship Program and the NBPRP proposed in November 1977 that the program again be expanded to the levels existing prior to 1968.
In order to be eligible for the sales program
an individual must be a United States citizen over the age of 18, a current member in a local or state gun group, and a current member in the NRA, and he must produce evidence of current competitive shooting activity with high-powered rifles.
Only the NRA membership requirement is being challenged in this action. But see Part VII Infra.
The Civilian Marksmanship Program has been the subject of considerable political controversy. A study conducted for the Army in the 1960s by the Arthur D. Little consulting firm recommended that the requirement of NRA membership for rifle purchases be eliminated. In 1977, the Administration proposed that the program be discontinued because of the "introduction of sophisticated weaponry and revisions of war time tactics." A similar proposal for abolition is contained in an annual report of the President dated January 22, 1979. On the other hand, an attempt by Senator Kennedy of Massachusetts to eliminate the program from the 1978 budget was defeated in the Senate by a wide margin (114 Cong.Rec. 12291-93 (daily ed. July 19, 1977)), and the Investigations Subcommittee of the House Armed Services Committee recommended last year that some several hundred thousand surplus rifles scheduled for destruction be sold instead in unlimited quantities under the auspices of the Civilian Marksmanship Program.
The National Rifle Association, upon its application, was allowed to intervene in this litigation. A principal objective of that organization, which has more than one million members, is the protection of the ability to acquire, possess, and carry guns, but it also fosters improved marksmanship and other related matters. NRA's legislative lobbying and political contribution campaigns in opposition to firearms regulation are financed through a Political Victory Fund.
Legislative lobbying is managed by the NRA Institute for Legislative Action (ILA).
ILA's general operations (salaries and administrative costs) are paid for with NRA's general revenues, and other ILA expenses are funded by direct contributions to the Institute.
The Army and the NRA argue that neither the NCBH nor Gavett has standing to pursue this lawsuit. Although the NCBH may well have standing (see Buckley v. Valeo, 424 U.S. 1, 11, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)),
it is unnecessary fully to explore that issue, for Gavett's standing cannot seriously be doubted.
The standing concept is implicit in the requirement of Article III of the Constitution that a court may decide only a "case or controversy," that is, it may not decide hypothetical questions or provide advisory opinions to parties who would not be injured if they did not prevail. As the Supreme Court stated in Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962), the question on standing is whether plaintiff has "alleged such a personal stake in the outcome of a controversy as to assure that concrete adverseness which sharpens the presentation of issues (on) which the Court so largely depends for illumination of difficult constitutional questions." Standing requires a "fairly traceable" causal connection between the claimed injury and the challenged conduct. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978); see also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979); Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976). The stake a plaintiff must have in the outcome of a suit to achieve standing need not necessarily be economic, but it may involve such intangible values as political or social concerns. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973); Buckley v. Valeo, supra.
Plaintiff Gavett claims, quite simply, that he has the requisite personal stake in this controversy by virtue of the fact that he wishes to purchase a rifle from the government at a discount price but is being denied that opportunity because the act reserves it exclusively to members of the NRA. Clearly, plaintiff would be able to purchase an Army rifle at a discount but for the NRA membership requirement imposed by the statute, and he is thus "injured" by it. It is equally clear that, should he prevail in this lawsuit the injury would be redressed: he would be able to purchase a rifle at the same price as NRA members. Under the most elementary rules of standing, jurisdiction, and case or controversy, Gavett qualifies as a plaintiff.
The NRA does not quarrel with this analysis in principle but instead challenges Gavett's good faith, claiming that he is a "contrived" plaintiff, and that therefore neither is he suffering genuine injury from the statute (or the program that it establishes) nor would a victory in this litigation provide him with genuine redress. In this regard, it is said that the NCBH, recognizing possible standing problems insofar as it was concerned, decided to bring Gavett in as an additional plaintiff to overcome those problems. Gavett, according to the NRA, was not interested in shooting guns prior to his involvement in this action nor had he ever heard of the Civilian Marksmanship Program, but bought a rifle, joined a rifle club, and participated in a rifle match solely to attempt to qualify for the weapons sales program.
It has long been settled by the decided cases, including a number of decisions of the Supreme Court, that an individual does not forfeit his standing for jurisdictional purposes merely because he is a "test" plaintiff. For example, in Evers v. Dwyer, 358 U.S. 202, 204, 79 S. Ct. 178, 180, 3 L. Ed. 2d 222 (1958), a black resident of Memphis, Tennessee, boarded a bus in that city apparently solely for the purpose of testing segregated seating. The District Court dismissed the complaint on standing grounds but the Supreme Court summarily reversed, stating that the fact "(t)hat the appellant may have boarded this particular bus for the purpose of instituting this litigation is not significant." Similarly, in Meyers v. Pennypack Woods Home Ownership Ass'n., 559 F.2d 894, 898 (3rd Cir. 1977), a black resident of New York applied for housing in Philadelphia. A District Court holding that his status as a tester barred him from relief for lack of a personal interest or stake was reversed by the Court of Appeals which noted that "(e)ven assuming arguendo that Meyers' application (for housing) was in fact motivated solely by his desire to test the legality of (the) policies, such a purpose is sufficient to confer standing." Again, in Pierson v. Ray, 386 U.S. 547, 558, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), Chief Justice Warren indicated for the Court that white and black clergymen who had traveled to Jackson, Mississippi, solely to test laws which segregated the facilities at an interstate bus terminal had standing to sue under the civil rights law on account of their false arrests even if they went to the Jackson bus terminal for the sole purpose of testing their rights to unsegregated public accommodations. See also Smith v. YMCA, 462 F.2d 634, 645-646 (5th Cir. 1972); Hughes v. Dyer, 378 F. Supp. 1305, 1308 (W.D.Mo.1974).
Under the lack-of-good-faith rubric, the NRA further argues that Gavett is precluded from bringing this lawsuit because of his membership in the Maryland & D.C. Rifle & Pistol Association, a rifle club affiliated with the NRA, and because he will allegedly be unable to certify, as required, that it is his intention to purchase an Army rifle for his own use. Neither contention is well taken.
The record shows that the Maryland-D.C. Association advised Gavett that it is neither affiliated with the NRA nor engaged in lobbying or other political activities. The Association in fact, does remit $ 10 in annual dues to the NRA (and the NRA is, of course, engaged in lobbying and political activities), but it is difficult to see on what theory this circumstance might impair plaintiff's standing. Gavett's membership in the local rifle club demonstrates nothing more than that, in order to qualify for the sale of a rifle, he was willing to comply with those requirements which least offended his beliefs.
In addition to requiring membership in the NRA, the pertinent Army regulation (see 32 C.F.R. § 621.2(e), (f)) requires membership in a local rifle club, and plaintiff was thus faced with the Hobson's choice of not joining the local association (and being confronted with an argument that he could not challenge the "membership in the NRA" requirement of the statute because of that fact) or joining a local club with its De minimis relationship to the NRA. Gavett chose the latter, and that choice does not detract from his standing to bring this action, any more than a principled opponent of racial segregation would have lacked standing prior to Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) to attack unequal expenditures for black schools under the then prevailing separate-but-equal doctrine.
Insofar as the argument concerning plaintiff's future certification is concerned, he has stated that, should he be sold a rifle, he would place it in the custody of his brother-in-law, for their joint use, and that he will, and will be able to, certify that he is purchasing the gun for his "personal use and not for resale or other disposition," and for use in competitive marksmanship, as required by the Army. Plaintiff's good faith in that regard has not been successfully challenged. Moreover, it is worth noting that members of the NPA who apply for the purchase of rifles under the program ...