Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Yet, GLN reports:
Now, if you are a Lautenberg victim, how do you get your gun rights reinstated? By having your record expunged.
For those in Wyoming, a law passed in 2004 allows for expungement of misdemeanor offenses. The purpose of the law was expressly to restore firearm rights taken away by the Lautenberg Amendment.
The BATFE responded by saying that Wyoming had an incorrect definition of ‘expunge’ and that the BATFE would prosecute any Lautenberg victim who possessed a firearm after having their record expunged by Wyoming.
This put Wyoming in the interesting position of issuing concealed carry permits to people that the feds considers prohibited persons.
Obviously this has caused a certain amount of controversy. Christopher Kegler sued the BATFE. Unfortunately for Chris, the judge decided that there was no threat of prosecution for desiring his gun rights back.
I can only conclude that the only way Chris can get his day in court is to violate and face prosecution under Lautenberg. Of course, the judge may then say that the BATFE matter will be resolved in criminal court and not address it. The risk to Chris is that he had a misdemeanor offense expunged and would face felony prosecution. Even victory would come at great, personal expense.
On standing, David Hardy writes:
Standing is a complex and chaotic doctrine. When I lectured a CLE seminar on bringing firearm law test cases, I always dealt with it first, with the warning it has a 75-80% kill rate, and you have to really do your preparation on it. Unless they really like your claim, courts are quick to say you have no standing because you aren’t being prosecuted and can only speculate that if you break the law, something would happen. You have to be very creative here.
I think citizens should be allowed to challenge laws without the risk of imprisonment or fines that come with breaking the law. It’s what a conscientious citizen should do. Our system prevents that which makes it more difficult for people to challenge things they view are unjust. They do so at the risk of losing their freedom. And the system is set up that way to prevent that from happening. It’s bullshit. David Hardy recommends in this case that:
I’d suggest here an argument along the following lines: to buy a gun from a dealer he has to get a background check. Now, he can’t really fill out the 4473 and put in NO. That’d make him guilty of a false record, a felony, and it’s pretty much strict liability for that. He must say yes or no, and is guilty if the answer is wrong, even if he thinks it is right.
But… if he did do that, the NICS system would stop the transaction.
So he has an immediate injury, even if ATFE sent him a letter saying that, because he is such a nice person, they will never prosecute him even if he does buy. He can’t buy from an FFL, period. It’s not just that he fears prosecution if he does, the system is so set up that he cannot.