I previously blogged about a new suit filed by the Second Amendment Foundation challenging the District’s policy whereby a resident cannot purchase a gun out of state, and must obtain one through a Federal Firearm License holder in the District (the only license holder is no longer in business). The complaint is here.

One interesting part. Plaintiff (represented by Alan Gura, with whom I’ve authored several pieces) goes to great length to describe herself as a law-abiding citizen, who poses no dangers to others.

7. Michelle Lane is over the age of 21, is not under indictment, has never beenconvicted of a felony or misdemeanor crime of domestic violence, is not a fugitive from justice,is not an unlawful user of or addicted to any controlled substance, has not been adjudicated amental defective or committed to a mental institution, has not been discharged from the ArmedForces under dishonorable conditions, has never renounced her citizenship, and has never been the subject of a restraining order relating to a child or an intimate partner. Ms. Lane holds a validUtah permit to carry a handgun, which is recognized in numerous states.

As I discussed  in The Constitutionality of Social Cost, different standards should apply to Second Amendment challenges where the Plaintiff exhibits no propensity for danger to others. Like Mr. Heller or Mr. McDonald, Ms. Lane seems to be an outstanding citizen who poses no threat to others. This ex ante deprivation of her rights should require a higher showing from the government.

There are four claims for relief. The first is grounded on the Second Amendment:

20. The Second Amendment guarantees individuals a fundamental right to possesshandguns. The handguns whose possession is protected by the Second Amendment are those ofthe kind that are or would be in common use by law-abiding people for lawful purposes,including the two handguns Ms. Lane sought to purchase in Virginia.

21. By maintaining and enforcing 18 U.S.C. § 922(b)(3) and 27 CFR § 478.99,banning and otherwise burdening access to handguns whose possession is protected by theSecond Amendment, Defendant Holder is propagating customs, policies, and practices that violate the Second Amendment to the United States Constitution, facially and as applied againstMs. Lane and SAF’s membership. Plaintiffs are therefore entitled to preliminary and permanentinjunctive relief against such customs, policies, and practices.

The second is based on the Equal Protection Clause of the 5th Amendment (don’t check your pocket Constitution, it’s not there, see Bolling v. Sharpe).

23. Title 18, U.S.C. § 922(b)(3) and 27 CFR § 478.99, banning the purchase ofhandguns by otherwise qualified individuals solely on account of their residence, improperlyclassify individuals according to their residence status in violation of the Fifth Amendment rightto equal protection of the law. By maintaining and enforcing these provisions, banning andotherwise burdening access to handguns whose possession is protected by the SecondAmendment, Defendant Holder is propagating customs, policies, and practices that violate theFifth Amendment to the United States Constitution, facially and as applied against Ms. Lane andSAF’s membership. Plaintiffs are therefore entitled to preliminary and permanent injunctiverelief against such customs, policies, and practices.

This raises similar issues to my article on Equal Protection from Eminent Domain. Using the equal protection clause to challenge dissimilar treatment with respect to constitutional rights, based on characteristics like residence, unlike innate protected classes (like gender, race, etc). I address those items here and here. This is similar to a challenge recently filed in New York City whereby City residents have to pay higher fees than people elsewhere in New York State.

The third claim challenges a Virginia law that prevents the sale of firearms to the Plaintiff.

25. The Second Amendment secures fundamental rights, and is fully binding uponstate officials pursuant to the Privileges or Immunities and/or Due Process Clauses of theFourteenth Amendment.

26. By maintaining and enforcing Va. Code § 18.2-308.2:2, banning and otherwiseburdening access to handguns whose possession is protected by the Second Amendment,Defendant Flaherty is propagating customs, policies, and practices that violate the Second andFourteenth Amendments to the United States Constitution, facially and as applied against Ms.Lane and SAF’s membership. Plaintiffs are therefore entitled to preliminary and permanentinjunctive relief against such customs, policies, and practices.

The fourth claim of relief is based on the Equal Protection Clause.

28. Va. Code § 18.2-308.2:2, banning the purchase of handguns by otherwisequalified individuals solely on account of their residence, improperly classifies individualsaccording to their residence status in violation of the Fifth Amendment right to equal protectionof the law. By maintaining and enforcing these provisions, banning and otherwise burdeningaccess to handguns whose possession is protected by the Second Amendment, Defendant Flaherty is propagating customs, policies, and practices that violate the Equal Protection Clauseof the Fourteenth Amendment to the United States Constitution, facially and as applied againstMs. Lane and SAF’s membership. Plaintiffs are therefore entitled to preliminary and permanentinjunctive relief against such customs, policies, and practices.

I’ll keep an eye on this.