The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiffs Maxwell Hodgkins, Stephen Dearth, and the Second Amendment Foundation, Inc. ("SAF"), present constitutional challenges to certain federal gun control restrictions. The government moves to dismiss, arguing, correctly, that the plaintiffs lack standing.
With exceptions not relevant here, federal law does not allow any person "who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes." 18 U.S.C. § 922(a)(9). A complementary provision prohibits the transfer of firearms to any person "who the transferor knows or has reasonable cause to believe does not reside in . . . the State in which the transferor resides." Id. § 922(a)(5). To facilitate enforcement of these provisions, a prospective firearm purchaser must complete and give to the seller ATF Form 4473, which asks the purchaser to list his or her state of residence, if any. See 27 C.F.R. § 478.124(c)(1).
Plaintiff SAF is a non-profit organization of gunmen. See Compl. ¶ 3. Plaintiffs Maxwell Hodgkins and Stephen Dearth are United States citizens residing abroad with no domestic residence. See id. at ¶¶ 1-2. Both occasionally visit friends and family in the United States and intend to continue visiting this country. See id. at ¶¶ 7, 10. Both hold valid state permits to carry handguns. See id. at ¶¶ 9, 12. Hodgkins attempted to purchase a firearm within the United States in October 2008, but he was refused when he told the seller that he resided abroad. See id. at ¶ 24. Similarly, Dearth attempted to purchase firearms in the United States twice, but each time the sale was refused when he admitted to residing abroad. See id. at ¶¶ 22-23. Dearth alleges that he intends to return to the United States to buy firearms, which he would store at the home of relatives in Ohio. See id. at ¶ 11.
To have standing pursuant to Article III of the Constitution, plaintiffs must demonstrate, inter alia, "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) (internal quotation marks and citations omitted). Plaintiffs seek relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. To establish a right to proceed under the Declaratory Judgment Act, plaintiffs must demonstrate "a case of actual controversy." Id.
A. Standing of Hodgkins and Dearth
1. Based Solely Upon Refusal to Sell
Plaintiffs Hodgkins and Dearth contend that their failed attempts to purchase firearms confer standing. However, unlike many causes of action, the Declaratory Judgment Act does not authorize remedies for past injuries alone. Under the Declaratory Judgment Act, a constitutional question "must be presented in the context of a specific live grievance." Golden v. Zwickler, 394 U.S. 103, 110 (1969); see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (requiring "the continuing existence of a live and acute controversy") (emphasis in original). Thus, a plaintiff's prior arrest could not support a declaratory judgment action where the plaintiff could not show that the arrestable offense was likely to reoccur. See Golden, 394 U.S. at 108-10 (plaintiff's concern lacked the "immediacy and reality" necessary to support a Declaratory Judgment Act action).
Past events can be relevant to a determination of whether a plaintiff's fear of future prosecution is "imaginary or speculative" or whether it is "immedia[te] and real," Steffel, 415 U.S. at 459-60, but past refusals of merchants to sell firearms to Hodgkins and Dearth are not enough, without more, to provide the basis for an action pursuant to the Declaratory Judgment Act.*fn1
2. Preenforcement Standing
If Hodgkins and Dearth have standing, then, it must be based on the threat of future enforcement. See Seegars v. Ashcroft, 396 F.3d 1248, 1251 (D.C. Cir. 2005) ("No plaintiff in this case has been arrested and prosecuted for violating the disputed provisions of the Code, so plaintiffs' case constitutes a 'preenforcement' challenge."). Hodgkins has not alleged any intention to acquire firearms in the United States in the future, so he cannot establish an imminent future injury. Dearth does allege that he intends to return to the United States to purchase firearms, but, as will be explained, that allegation is not enough to overcome the preenforcement standing requirements established by the D.C. Circuit in the Navegar line of cases.
Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), held that gun manufacturers had standing to seek a declaratory judgment against enforcement of the Violent Crime Control & Law Enforcement Act of 1994 where the law, by naming specific brands and models of firearms, "in effect single[d] out the [plaintiffs] as its intended targets." See id. at 999-1001. The manufacturers did not have standing to challenge certain other provisions of the Act, however, because of the ...