CONTIE, J., delivered the opinion of the court, in which BOGGS, J., joined. RYAN, J. (pp. 295-298), delivered a separate opinion concurring in part and dissenting in part.
CONTIE, Circuit Judge.
This case presents a pre-enforcement challenge to the constitutionality of Title XI of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994) (the "Crime Control Act" or "the Act"). Two non-profit gun rights associations, three firearms manufacturers, one manufacturer of ammunition feeding devices, two federally licensed firearms dealers, and five individual plaintiffs originally sought declaratory and injunctive relief under the Declaratory Judgment Act, alleging that portions of the statute were unconstitutional. The defendants are John Magaw, the director of the Bureau of Alcohol, Tobacco, and Firearms ("BATF"), and the United States of America.
In a first amended complaint filed in June 1995, plaintiffs sought a declaratory judgment
For the following reasons, we affirm in part and reverse in part.
I. The Crime Control Act
The Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921-930 (the "GCA"), imposes a comprehensive regulatory scheme on the manufacture and distribution of firearms. On September 13, 1994, Congress passed the Crime Control Act, which amends the GCA. It prohibits, for a period of ten years, the manufacture, transfer, or possession of semiautomatic assault weapons and the transfer or possession of large capacity ammunition feeding devices. 18 U.S.C. §§ 922(v)(1), 922(w)(1). The term "semiautomatic assault weapon" is defined as any of the firearms known by nine categories of specified brand names or model numbers.
The statute contains various exceptions to the general prohibitions, including a "grandfather" provision that permits the possession or transfer of semiautomatic assault weapons and large capacity ammunition feeding devices that were lawfully possessed on the date of enactment. 18 U.S.C. §§ 922(v)(2), 922(w)(2). Persons convicted of knowingly
Prior to passage of the Act, the BATF, a division of the Treasury Department, sent a letter on September 6, 1994, to all federally licensed firearms manufacturers, advising them of the statute's prohibitions and exemptions. The Act became effective on September 13, 1994. Following passage of the Act, the BATF sent a subsequent letter on September 26, 1994, advising manufacturers that certain component parts lawfully possessed on or before September 13, 1994 were not "grandfathered" under the law and could not be assembled into a complete semiautomatic assault weapon for sale in ordinary commercial channels. The letter informed the manufacturers that BATF inspectors would conduct a final inventory of their semiautomatic assault weapons to determine the number lawfully possessed on the date of enactment of the Act.
The eleven plaintiffs-appellants who bring this appeal may be divided into several categories. The federally licensed corporations — D.C. Engineering, Inc., Olympic Arms, Inc., and Calico Light Weapons Systems, Inc. — manufacture firearms or ammunition feeding devices. The firearms dealers, Ammo Dump and Glenn Duncan, hold a federal firearms license and conduct a firearms business in the sale and repair of weapons. We will designate the manufacturers and firearm dealers as the Group I plaintiffs. A second group consists of the individual plaintiffs — Charles Duncan, James E. Flynn, James J. Fotis, and Craig D. Sandler, who wish to possess prohibited products (Group II plaintiffs). We will designate as the third group the nonprofit gun rights associations, the National Rifle Association ("NRA") and Michigan United Conservation Clubs ("MUCC"), whose members wish to own, possess, and transfer firearms prohibited by the statute (Group III plaintiffs). Because we believe that each group of plaintiffs presents different concerns in regard to the doctrines of standing and ripeness, we will treat each group separately.
Plaintiffs' complaint specifically alleged that the definitions of "semiautomatic assault weapon" contained in §§ 921(a)(30)(A), (B) of the Act were unconstitutionally vague and denied them due process of law (Counts I, II, and VI); that Congress exceeded the scope of its constitutional power under the Commerce Clause by enacting the prohibitions in §§ 922(v)(1), 922(w)(1) of the Act (Count III); that the ban on certain semiautomatic assault weapons, as designated in § 921(a)(30), and the protection of others, as designated in § 922(v)(3) and § 922, Appendix A, was arbitrary and capricious, violating the Equal Protection Clause (Count IV), and was not rationally related to any legitimate federal interest (Count VII); and that BATF's interpretation of the terms "frame" and "receiver" in § 921(a)(3)(B) for purposes of the grandfather provision at § 922(v)(2) was arbitrary and capricious (Count V).
II. Justiciability Requirements
We review issues of justiciability pursuant to Article III de novo. Kelley v. Selin,
Article III of the Constitution confines the federal courts to adjudicating actual "cases" and "controversies." U.S. Const. art. III, § 2. The threshold question in every federal case is whether the court has the judicial power to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). Federal judicial power is limited to those disputes "which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). As the Supreme Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-76, 102 S.Ct. 752, 757-61, 70 L.Ed.2d 700 (1982), the "case or controversy" requirement defines, with respect to the Judicial Branch, the idea of separation of powers on which the Federal Government is founded. In an attempt to give meaning to Article III's "case or controversy" requirement, the courts have developed a series of principles termed "justiciability doctrines." The Article III doctrine that requires a litigant to have "standing" to invoke the jurisdiction of a federal court is perhaps the most important. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Article III standing requires a litigant to have suffered an injury-in-fact, fairly traceable to the defendant's allegedly unlawful conduct, and likely to be redressed by the requested relief. Id. at 751, 104 S.Ct. at 3324-25; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); Linton by Arnold v. Commissioner of Health and Environment, State of Tennessee, 973 F.2d 1311, 1316 (6th Cir.1992).
In the present case, plaintiffs bring suit under the Declaratory Judgment Act, 28 U.S.C. § 2201, which provides the mechanism for seeking pre-enforcement review of a statute.
The existence of an "actual controversy" in a constitutional sense is necessary to sustain jurisdiction under the Declaratory Judgment Act. Aetna Life Ins. Co., 300 U.S. at 239-40, 57 S.Ct. at 463-64; Muller v. Olin Mathieson Chemical Corp., 404 F.2d 501, 503 (2nd Cir.1968). The Supreme Court has explained that an actual controversy in this
Aetna Life Ins. Co., 300 U.S. at 240-41, 57 S.Ct. at 464 (citations omitted). To determine whether a plaintiff has standing to adjudicate an "actual controversy," requisite for relief under the Declaratory Judgment Act, one must ask whether the parties have "adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment" even though the injury-in-fact has not yet been completed. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959-60, 22 L.Ed.2d 113 (1969); Michigan State Chamber of Commerce v. Austin, 788 F.2d 1178, 1181 (6th Cir.1986).
A second doctrine that "cluster[s] about Article III" is ripeness. Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir. 1982) (Bork, J., concurring), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983). Ripeness requires that the "injury in fact be certainly impending." National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977) (hereinafter, "Abbott Labs.").
Third, the Supreme Court has stressed that the alleged injury must be legally and judicially cognizable, Raines v. Byrd, ___ U.S. ___, ___, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997), and that the issues must be fit for judicial resolution. This requires that the plaintiff have suffered "an invasion of a legally protected interest," Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, which is "traditionally thought to be capable of resolution through the judicial process," Flast v. Cohen, 392 U.S. at 97, 88 S.Ct. at 1951, and is currently fit for judicial review.
Thus, in order to determine whether each category of plaintiffs in the present case meets the requirements of Article III, and whether it is appropriate for a federal court to hear their pre-enforcement challenges to the Crime Control Act, this court must ask three questions: (1) whether the plaintiff has standing — whether he is the proper party to request an adjudication of a particular issue, because he has suffered a concrete injury-in-fact; (2) whether a particular challenge is brought at the proper time and is ripe for pre-enforcement review; and (3) whether the issue currently is fit for judicial decision.
III. The Manufacturers and Dealers (Group I Plaintiffs)
To determine whether the manufacturers and firearms dealers have standing to challenge the constitutionality of the Crime Control Act, we must examine the nature of the injury-in-fact which they have alleged. "The injury alleged must be ... `distinct and palpable,' and not `abstract' or `conjectural' or `hypothetical.'" Allen v. Wright, 468 U.S. at 751, 104 S.Ct. at 3324 (citations omitted). The Supreme Court has stated:
Id. at 752, 104 S.Ct. at 3325. See also Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136-37.
In the present case, the manufacturers and dealers allege that passage of the Act has a significant impact on the way they conduct their businesses and indicate compliance with the prohibitions of the Act causes them immediate economic harm. Because of the ban on specific semiautomatic assault weapons and large capacity ammunition feeding devices, the manufacturing plaintiffs allege they will be forced to redesign and relabel some products and cease production of others. For example, prior to passage of the Act, plaintiffs Olympic Arms and Calico Light Weapons Systems manufactured firearms specifically prohibited by § 921(a)(30)(A) (in particular, the Colt AR-45), and D.C. Engineering manufactured large capacity ammunition feeding devices prohibited by § 921(a)(31). These plaintiffs were forced to cease manufacturing prohibited products when the statute took effect out of fear of prosecution. In order to comply with the Act, they must forego a particular line of business or redesign and relabel their products. The federally licensed firearms dealers plead that compliance with the Act affects their daily businesses by prohibiting the possession and sale of specific weapons and ammunition feeding devices. For example, plaintiff Glenn Duncan, a licensed firearms dealer and gunsmith, attests that prior to passage of the Act, he regularly sold, repaired, and modified the AR-15 firearm and others prohibited by the Act, but is now forbidden from doing so. The firearm dealers also allege that they possess component parts which they can no longer use to assemble proscribed weapons, out of fear of prosecution. In sum, the manufacturers and dealers, who must comply with the Act as a condition of functioning in an intensely regulated industry, illustrate that they have suffered economic harm from the impact of passage of the Act, which has restricted the operation of their businesses in various ways — either forcing them to "stop production," "decline work," and to "refrain from sales and marketing," or imposing the need to redesign and relabel products.
In Count Three of the complaint, the manufacturers and dealers argue that the prohibitions enacted in §§ 922(v)(1) and 922(w)(1) of the Act exceed congressional power to regulate under the Commerce Clause. In Counts Four and Seven, they contend that the prohibition against specific weapons in § 921(a)(30)(A) violates the Equal Protection Clause by banning certain firearms by brand name or model number, while permitting firearms of the same type, function, and capacity to be sold under other makers' names. They allege the statute permits the manufacture of nearly identical arms, and the prohibitions are not rationally related to any government purpose.
The precise standing issue, in regard to the manufacturers and dealers, is whether upon pleading such facts, the Group I plaintiffs may bring an Equal Protection and Commerce Clause challenge to the Act. In other words, does a manufacturer or dealer, who alleges that he is prohibited from making a product he formerly produced or sold, have standing to challenge a law that allows competitors to continue making similar products? Does a manufacturer, who alleges that he has been forced to cease production of a banned product and to redesign or relabel his products, have standing to challenge Congress' authority to regulate the product under the Commerce Clause? Based on the facts alleged by the manufacturers and dealers indicating the impact of the Act on their businesses, we believe they have demonstrated sufficient injury-in-fact to confer standing.
As the court in Pic-A-State Pa., Inc., 76 F.3d at 1299, pointed out, courts have routinely found sufficient adversity between the parties to create a justiciable controversy when suit is brought by the particular plaintiff subject to the regulatory burden imposed by a statute. See also Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973) (when a criminal statute directly targets a specific profession and directly operates to restrict a person in his profession, pre-enforcement review is available). In the present case, the manufacturer and dealer plaintiffs have been targeted for regulation by the Crime Control Act and have been directly harmed by the statute's prohibitions against specific weapons and ammunition feeding devices. Thus, they are the proper parties to bring suit. In addition, this court has held that "[a]n economic injury which is traceable to the challenged action" satisfies the requirements of Article III standing. Linton, 973 F.2d at 1316. As the Supreme Court indicated in Abbott Labs., there is no question that the manufacturers and firearm dealers have sufficient standing as plaintiffs, because "the regulation is directed at them in particular; it requires
Our conclusion that the manufacturers and dealers in the present case have standing to bring suit is consistent with the opinion of the Court of Appeals for the District of Columbia in Navegar, Inc. v. United States, 103 F.3d 994 (D.C.Cir.1997). There, the court found that one of the original plaintiffs herein, Navegar, Inc., had standing to challenge certain provisions of the Crime Control Act.
Id. at 999. We believe the reasoning of Navegar applies in the present case. The Crime Control Act specifically targets the manufacturers and dealers herein, who make and sell the particular products prohibited in §§ 921(a)(30), (31) of the Act, and the applicability of the Act to their businesses is indisputable.
Not only have the manufacturer and dealer plaintiffs herein terminated the manufacture and sale of prohibited products and suffered economic harm in response to passage of the Act, but any further attempt to pursue prohibited lines of business risks serious criminal penalties. In circumstances such as these, we believe the Group I plaintiffs have standing to challenge the prohibitions of § 921(v)(1) and § 921(w)(1) as defined in § 921(a)(30) and § 921(a)(31) of the Act on Commerce Clause and Equal Protection grounds. See General Motors Corp. v. Tracy, ___ U.S. ___, ___, 117 S.Ct. 811, 818, 136 L.Ed.2d 761 (1997) (consumers who suffer economic injury from regulation forbidden under the Commerce Clause satisfy standing requirements of Article III); Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976) (plaintiff beer vendor had standing to challenge the constitutionality of Oklahoma statute prohibiting the sale of
We must next decide whether the manufacturers' and dealers' challenges in Counts Three, Four, and Seven of the complaint are ripe for judicial review. The Supreme Court has stated that the basic rationale of the ripeness doctrine "is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements." Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985). Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 1720-21, 75 L.Ed.2d 752 (1983); Dames & Moore v. Regan, 453 U.S. 654, 689, 101 S.Ct. 2972, 2991-92, 69 L.Ed.2d 918 (1981). Ripeness is, thus, a question of timing. Regional Rail Reorganization Act Cases, 419 U.S. 102, 139, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). A case is ripe for pre-enforcement review under the Declaratory Judgment Act only if the probability of the future event occurring is substantial and of "sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Golden v. Zwickler, 394 U.S. at 108, 89 S.Ct. at 959-60; Armstrong World Indus. v. Adams, 961 F.2d 405, 412 (3rd Cir.1992).
This court has stated that ripeness requires us to weigh several factors in deciding whether to address the issues presented for review. United Steelworkers, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir.1988). We must address the hardship to the parties if judicial relief is denied at the pre-enforcement stage in the proceedings. Id. at 195. We must examine the "likelihood that the harm alleged by plaintiffs will ever come to pass." Id. at 194. And we must consider whether the case is fit for judicial resolution at the pre-enforcement stage, which requires a determination of whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties' respective claims. Id. at 195. See also Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir.) ("ripeness doctrine ... requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances"), cert. denied, 474 U.S. 947, 106 S.Ct. 344, 88 L.Ed.2d 291 (1985). As the Supreme Court has stated, the prudential considerations that weigh in the ripeness calculus are the need to "fles[h] out" the controversy and the burden on the plaintiff who must "adjust his conduct immediately." Lujan, 497 U.S. at 891, 110 S.Ct. at 3190.
In the present case, the district court found the action was not ripe for judicial review because no prosecution of any plaintiff was pending or imminent. The district court stated that a pre-enforcement challenge to a statute with criminal penalties is premature prior to enforcement unless the threat of prosecution is imminent. The district court based its analysis primarily on cases that involve challenges to statutes criminalizing the exercise of First Amendment rights, such as Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), and Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). We believe the district court erred in this regard, because the harm or injury-in-fact alleged in First Amendment cases is very different from that alleged by the manufacturers and dealers herein, and, consequently, different concerns arise when determining whether the case is ripe for judicial review.
Within the context of the First Amendment, the Supreme Court has enunciated concerns that justify a lessening of the
The seminal case regarding pre-enforcement review outside the First Amendment context is Abbott Labs., 387 U.S. at 136, 87 S.Ct. at 1507. This case involved a challenge by drug manufacturers to regulations promulgated under the Food, Drug and Cosmetic Act before the regulations had been enforced against them.
1. Hardship to the Parties
In the face of the regulations at issue in Abbott Labs., the petitioners (the pharmaceutical firms) were forced either to change all labels and promotional materials for various generic drugs or to refuse to abide by the new regulations and risk serious criminal and civil penalties for noncompliance. Id. at 152-53, 87 S.Ct. at 1517-18. The Supreme Court found that the new drug-labeling regulations
In assessing the magnitude and immediacy of the hardship imposed by the Crime Control Act upon the manufacturers and dealers in the present case, we find that the resemblance between the facts of Abbott Labs. and those before us is striking. The manufacturers and dealers herein are faced with significant changes in the day-to-day operation of their businesses in order to comply with a statutory provision. Like the drug companies in Abbott Labs., plaintiffs, for all practical purposes, are coerced into a particular course of conduct by the prospect of heavy civil and criminal penalties that might be visited upon them. 387 U.S. at 152-53, 87 S.Ct. at 1517-18. The alleged economic harm is similar. The Group I plaintiffs must relabel and redesign products or cease production and sales of prohibited products, requiring either a substantial monetary investment or loss in order to comply. As was the case in Abbott Labs., the impact of the government action is "direct and immediate," and noncompliance risks serious civil and criminal penalties. Id. The Court in Abbott Labs. found that such a circumstance "put petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate." Id. at 152, 87 S.Ct. at 1517. The Court assessed the "hardship to the parties if judicial relief were denied at the [pre-enforcement] stage in the proceedings" and concluded:
Id. at 153, 87 S.Ct. at 1518.
In the present case, the hardship factor clearly weighs in the manufacturers' and dealers' favor. See Brown & Williamson Tobacco Corp. v. Federal Trade Comm'n, 710 F.2d 1165, 1172 (6th Cir.1983) (hardship to the company of requiring it to wait to challenge proposed changes in testing "tar" and nicotine levels of manufacturer's cigarettes appears to be no less than the hardship faced by the drug companies in Abbott Labs.). The government's interest in deferral is outweighed because postponement of a decision would work substantial hardship, requiring the expenditure or loss of substantial amounts of money, which could not be recovered if the law were eventually struck down. As in the Regional Rail Reorganization Act Cases, 419 U.S. at 144, 95 S.Ct. at 359, the manufacturers' and dealers' decisions "to be made now or in the short future [will] be affected by whether or not the ... issues are now decided." The Supreme Court found that in such a circumstance, "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." Id. at 143, 95 S.Ct. at 358, quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658,
The manufacturers and firearms dealers herein present a classic example of when pre-enforcement review must be granted. Absent the availability of pre-enforcement review, these plaintiffs must either terminate a line of business, make substantial expenditures in order to comply with the Act, or willfully violate the statute and risk serious criminal penalties. Like the drug companies in Abbott Labs., these plaintiffs are "put ... in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate." Id. at 152, 87 S.Ct. at 1517. The government's action would reasonably prompt a regulated industry, unwilling to risk substantial penalties by defying the statute, to undertake costly compliance measures or forego a line of business. State Farm Mutual Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). Thus, the federal court is not asked to decide a case involving conjectural or hypothetical injury, but one that creates substantial economic hardship, which is direct and immediate, and will be compounded by a refusal of the court to intervene prior to enforcement of the statute.
Although we are aware of the Supreme Court's admonition "not to entertain constitutional questions in advance of the strictest necessity," Poe v. Ullman, 367 U.S. 497, 503, 81 S.Ct. 1752, 1756, 6 L.Ed.2d 989 (1961), we believe that as a policy matter, strong reasons counsel against requiring the manufacturers and dealers to engage in illegal conduct before their challenges can be heard. There are no advantages to the court to be gained from withholding judicial review at the present time and waiting until a manufacturer or dealer has been prosecuted under the Act. A defense in criminal proceedings on constitutional grounds does not provide an adequate remedy for the economic injury incurred. Abbott Labs., 387 U.S. at 153, 87 S.Ct. at 1517-18. Furthermore, we believe a citizen should be allowed to prefer "official adjudication to public disobedience." See 13A, Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, § 3532.5 at 183-84 (2nd ed.1984). As the court in Navegar indicated, a denial of review to the manufacturers and dealers affected by the Act would be totally unjustified by the constitutional or prudential concerns underlying the ripeness doctrine. 103 F.3d at 1001. As in Abbott Labs., the prohibitions of the Act "require an immediate and significant change in the[se] plaintiffs' conduct of their affairs with serious penalties attached to non-compliance." 387 U.S. at 153, 87 S.Ct. at 1518. To require the manufacturers and dealers to challenge the prohibitions of the Act "only as a defense to an action brought by the Government might harm them severely and unnecessarily." Id. Therefore, we find that the manufacturers' and dealers' challenges to the Act on Commerce Clause and Equal Protection grounds are ripe for review, and "access to the courts ... under the Declaratory Judgment Act must be permitted." Id.
2. Well-Founded Fear of Prosecution
The United States argues that the rationale of Abbott Labs. does not apply in the present case, because in Abbott Labs., the pre-enforcement challenge was brought pursuant to the Administrative Procedure Act, which specifically provides for challenges to final agency action. We do not agree that Abbott Labs. must be construed so narrowly. One reason the Supreme Court gave for granting pre-enforcement review in Abbott Labs. was that the regulations at issue had the status of law. 387 U.S. at 152, 87 S.Ct. at 1517. Moreover, the Supreme Court has found a pre-enforcement challenge to the constitutionality of a statute with criminal penalties ripe for review pursuant to the Declaratory Judgment Act. In Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972), the Supreme Court reviewed a state statute which the appellants alleged inflicted economic harm. The Supreme Court developed the "present effectiveness in fact" doctrine to address the likelihood that the harm allegedly inflicted by the regulation in the statute would come to pass. Id. at 507, 92 S.Ct. at 1755. The Court found that the appellants, a water carriers' association and individual members who owned or operated federally licensed Great Lakes cargo vessels, could bring a pre-enforcement challenge to the constitutionality of the Michigan Watercraft Pollution Control Act, which prohibited them from dumping sewage and required them to have sewage storage devices on board their vessels. Id. at 506, 92 S.Ct. at 1755.
The Court found that the question of whether the complaint presented an actual controversy ripe for review under the Declaratory Judgment Act was whether "there [was] a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment." Id. The Court found that the complaint, which challenged the statute on both Commerce Clause and Equal Protection grounds, presented an actual controversy that was ripe for review, because the obligation to install the sewage storage devices under the Michigan statute was presently effective in fact, even though the appellants had not been threatened with criminal prosecution. Id. The Court stated:
Id. at 507, 92 S.Ct. at 1755. As was the case in Abbott Labs., the appellants' challenges were ripe for judicial review because of the immediacy of the hardship imposed by the Michigan statute.
Id. at 508, 92 S.Ct. at 1756. Like the petitioners in Abbott Labs., the appellants in Lake Carriers' Ass'n were put in the untenable position of having to choose either to comply with the statute and immediately sustain an economic hardship or refuse to comply and risk future enforcement of the statute against them, which would result in severe penalties.
In Lake Carriers' Ass'n, the Supreme Court indicated that in order to establish the need for pre-enforcement review, the Court also had to determine whether compliance was "uncoerced by the risk of enforcement." Id. at 507, 92 S.Ct. at 1756. In other words, the Court had to determine if appellants' decision to challenge the obligations and prohibitions contained in the Watercraft Pollution Control Act was truly motivated by a well-founded fear that refusal to comply would lead to prosecution. The Court found that the state of Michigan had sought "on the basis of the Act and the threat of future enforcement to obtain compliance as soon as possible." Id. Therefore, the appellants' preenforcement
The same is true in the present case. As this court has pointed out, the Supreme Court typically has allowed pre-enforcement review when enforcement of a statute or ordinance against a particular plaintiff is inevitable. Kardules v. City of Columbus, 95 F.3d 1335, 1344 (6th Cir.1996). See also Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (landlord's challenge to rent control ordinance was ripe for pre-enforcement review as landlords had demonstrated realistic danger of sustaining a direct economic injury as a result of the ordinance's operation and future enforcement against them); Illinois v. General Electric Co., 683 F.2d 206, 210 (7th Cir.1982) ("as the Act has only one conceivable target ... it is extremely unlikely that the state would overlook the violation," and the controversy is therefore ripe), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).
In the present case, the likelihood that the Crime Control Act will be enforced against federally licensed firearm manufacturers and dealers who refuse to comply with its prohibitions is clear, as the court in Navegar found with respect to one of the original plaintiffs herein, Navegar, Inc. The court pointed out that the Act's specific prohibition of products made by appellants Navegar and Penn Arms indicated the Act's intention of eliminating this portion of their business and made the Act "present[ly] effective in fact," citing Lake Carriers' Ass'n. 103 F.3d at 1000. The court in Navegar found that the appellants' failure to comply would inevitably lead to prosecution, stating:
Id. at 1000-01.
We agree with the reasoning in Navegar and find that it applies to the manufacturers and dealers in the present case. The prohibitions of the Crime Control Act are presently effective in fact, and these plaintiffs' challenges are motivated by a well-founded fear of prosecution. The applicability of the Act to their businesses is indisputable, and "compliance is coerced by the threat of enforcement." Lake Carriers' Ass'n, 406 U.S. at 507, 92 S.Ct. at 1755-56. Evidence that the government intends to enforce the Act against these plaintiffs is demonstrated by the September 1994 letters sent out by BATF, explaining the prohibitions of the Act and indicating that BATF inspectors would conduct a final inventory of semiautomatic assault weapons which fit within the exemptions. The letters indicate the government's intention to enforce the law through inspections and to prevent the manufacture and sale of prohibited products that do not fall within its exemptions. We agree with the court in Navegar that it is inconceivable that the government would enact a widely publicized law, outlawing specific products by name, model number, and design, which are manufactured and sold by specific companies and dealers, and then sit idly by if the companies continued to manufacture and the dealers continued to sell the outlawed products. 103 F.3d at 1000-01. As in Lake Carriers' Ass'n, the government in the present case has "sought through the threat of future enforcement to obtain compliance as soon as possible." 406 U.S. at 507, 92 S.Ct. at 1756.
To conclude, we believe the district court erred in its ripeness analysis in regard
C. Fitness for Judicial Review
Finally, we must examine whether the issues raised by the Group I plaintiffs are presently fit for judicial resolution. As the Court in Abbott Labs. indicated, when ruling under the Declaratory Judgment Act, usually only purely legal issues are fit for judicial resolution before prosecution is initiated. 387 U.S. at 148, 87 S.Ct. at 1515. See also Thomas v. Union Carbide Agricultural Products Co., 473 U.S. at 581, 105 S.Ct. at 3333 ("issue presented is purely legal and will not be clarified by further factual development"); Brown & Williamson Tobacco Corp., 710 F.2d at 1171 (question of law which requires no further fact-finding is fit for judicial review).
1. Equal Protection and Commerce Clause Challenges
The Group I plaintiffs bring a facial challenge to the constitutionality of the Crime Control Act on Commerce Clause and Equal Protection grounds, which are purely legal issues. Further development of a factual record by prosecution of these plaintiffs would not inform the court's legal analysis. In considering the fitness of an issue for judicial review, the court must ensure that a record adequate to support an informed decision exists when the case is heard. Abbott Labs., 387 U.S. at 149, 87 S.Ct. at 1515-16. Usually until the controversy has become focused in a concrete factual situation, it is difficult for the court to evaluate the practical merits of the position of each party. See Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 758-59 (questions presented
For example, in Counts Four and Seven, the manufacturers and dealers contend that the Act violates the Equal Protection Clause because it protects from further regulation some manufacturers' semiautomatic assault weapons, while banning other nearly identical products of the same type, capacity, and function.
We find no reason related to the constitutional or prudential concerns of the ripeness doctrine for requiring the Group I plaintiffs to undergo a criminal prosecution before bringing their Equal Protection and Commerce Clause challenges. The statute cannot be interpreted more narrowly on an "as applied" basis in order to avoid these constitutional issues. A constitutional decision prior to enforcement of the Act will be rendered at the behest of those actually injured and singled out by the statute, rather than at the behest of those who wish merely to impose their own views of public policy on the government. See Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759. In regard to these issues, the manufacturers and dealers have alleged a "personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Enforcement of the Act against the manufacturers and dealers would not serve to further sharpen or focus their Commerce Clause or Equal Protection challenges. Accordingly, we find that the Commerce Clause and Equal Protection challenges in Counts Three, Four, and Seven of the complaint brought by the Group I plaintiffs are currently fit for judicial resolution.
2. Vagueness Challenges
However, we find that the vagueness challenges in Counts One, Two, Five, and Six of the complaint are not currently fit
Id. at 252. This court found that the term "slight modifications" was unconstitutionally vague and made the ordinance invalid on its face. Id. at 254.
We find the present case distinguishable from Springfield Armory for two reasons. First, in Springfield Armory, the court did not address the justiciability requirements of Article III. Second, the court was reviewing a city ordinance, not a federal statute enacted by Congress, and did not have to consider whether there had been "final agency action" in regard to an interpretation of the provision alleged to be vague. In contrast, in the present case, the Crime Control Act delegates rulemaking authority to the Secretary of the Treasury. 18 U.S.C. § 926. The Secretary, in turn, has delegated that authority to the BATF, which has the authority to make rules designating in greater specificity the requirements of the statute. See Treas. Dep't Order No. 221, 37 Fed.Reg. 11696, 11696-11697 (1972). See also 27 C.F.R. Part 178. William Earle of the BATF has attested that a person desiring a determination of whether a particular weapon or accessory is prohibited under the Act may apply to the BATF's Firearms Technology Branch. Plaintiffs in the present case have not gone through this formal procedure. Because there has been no final agency action interpreting the provisions of the statute alleged to be vague, plaintiffs' vagueness challenges are premature. Abbott Labs., 387 U.S. at 149, 87 S.Ct. at 1515-16. We believe a federal court should not intervene and determine whether a statute enacted by Congress is unconstitutionally vague on its face before the agency with rulemaking authority has had an opportunity to interpret the statute.
Plaintiffs' vagueness challenges are premised on the alleged harm that one must guess, at his own risk, the meaning of the statute. For example, plaintiffs contend they are uncertain what weapons are "copies" or "duplicates" of those listed in 18 U.S.C. § 921(a)(30)(A). However, plaintiffs' allegations that they are "unable to ascertain the meaning of various restrictions" presently lacks the factual context which would be developed by an administrative determination. We believe such a context is necessary to sharpen the presentation of issues upon which the court depends for "illumination of difficult constitutional issues." Baker v. Carr, 369 U.S. at 204, 82 S.Ct. at 703. This court cannot determine in a vacuum whether a particular firearm is a "copy or duplicate" of one prohibited by the Act until a final agency decision has been made. Other courts agree that vagueness challenges to the Crime Control Act are not ripe for pre-enforcement review. See Mack v. United States, 66 F.3d 1025, 1033 (9th Cir.1995) (allegation that criminal prohibition of Crime Control Act is ambiguous is not ripe for review), reversed on other grounds, Printz v. United States, ___ U.S. ___, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); Navegar, Inc., 103 F.3d at 1001 (vagueness challenge to provisions
Plaintiffs also contend that the terms "flash suppressor" and "pistol grip that protrudes conspicuously beneath the action of the weapon" in § 921(a)(30)(B) of the Act are impermissibly vague. Plaintiffs provide no reason why the term "flash suppressor" is vague. Their allegation that the term "protrudes conspicuously" is vague would perhaps be ripe for judicial review if the provision were impermissibly vague in all its applications. As the Supreme Court has stated in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982), a court can find a statute unconstitutionally vague on its face only if the court concludes that it is capable of no valid application. In the present case, plaintiffs have not demonstrated that the term "protrudes conspicuously" is impermissibly vague in all its applications. As the court in Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681 (2nd Cir.1996), pointed out when reviewing a similar term in a city ordinance that banned certain assault weapons, most sporting firearms "employ a more traditional pistol grip built into the wrist of the stock of the firearm" and photographs demonstrated a sufficient number of assault rifles, which were plainly equipped with "conspicuously protruding grips," to indicate that the term is not vague in all its applications. Id. at 685. Because there are possible valid applications, a vagueness challenge to this provision of the Act on its face is premature. Village of Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191-92.
For all these reasons, we find that plaintiffs' vagueness challenges in Counts One, Two, Five, and Six of the complaint are not currently fit for judicial resolution and were properly dismissed by the district court.
IV. The Individual Plaintiffs (Group II)
We find the individual plaintiffs do not have standing to sue. The rationale applied to the dealers and manufacturers (Group I plaintiffs) does not apply to them, as they have suffered no economic harm. They do not face the dilemma of whether to risk criminal and civil penalties to defy prohibitions that significantly affect their businesses or to comply with the Act and incur significant economic harm. We find that, in contrast, the individual plaintiffs have failed to demonstrate a cognizable injury-in-fact sufficient to confer standing prior to enforcement of the Act against them. "The mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a case or controversy within the meaning of Article III." Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir.1983). The individual plaintiffs aver that they "desire" and "wish" to engage in certain possibly prohibited activities, but are "restrained" and "inhibited" from doing so. They allege that they "are unable and unwilling, in light of the serious penalties threatened for violation of the statute, to obtain and possess the firearms and large capacity ammunition feeding devices prohibited by the statute." Although the standing requirement of an injury-in-fact is fairly lenient and may include a wide variety of economic, aesthetic, environmental, and other harms, the individual plaintiffs herein allege merely that they would like to engage in conduct, which might be prohibited by the statute, without indicating how they are currently harmed by the prohibitions other than their fear of prosecution. Plaintiffs' assertions that they "wish" or "intend" to engage in proscribed conduct is not sufficient to establish an injury-in-fact under Article III. Lujan, 504 U.S. at 564, 112 S.Ct. at 2138. The mere "possibility of criminal sanctions applying does not in and of itself create a case or controversy." Boating Industry Associations v. Marshall, 601 F.2d 1376, 1384 (9th Cir.1979); Jensen v. National Marine Fisheries Serv. (NOAA), 512 F.2d 1189, 1191 (9th Cir.1975). The individual plaintiffs have failed to show the high degree of immediacy necessary for standing when fear of prosecution is the only harm alleged. San Diego County Gun Rights Committee, 98 F.3d at 1127.
We agree with the district court's conclusion that the plaintiffs who telephoned BATF agents, submitted a hypothetical question, and received an answer that the questioned
Furthermore, plaintiffs' implication that the statute has a "chilling" effect on their desire to purchase the outlawed weapons and accessories does not establish standing. "Every criminal law, by its very existence, may have some chilling effect on personal behavior. That is the reason for its passage." Doe v. Duling, 782 F.2d 1202, 1206 (4th Cir.1986). Plaintiffs do not allege that the law "chills" because it forces them to forego constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.
Plaintiffs' allegations of fear of prosecution, which thwarts their desire to possess or transfer prohibited products, affects not only the named plaintiffs, but also anyone desiring to possess the products proscribed by the Crime Control Act. The Supreme Court has refrained from adjudicating "generalized grievances," pervasively shared. Valley Forge Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60. The individual plaintiffs' alleged harm amounts to no more than a "`generalized grievance' shared in substantially equal measure by ... a large class of citizens," and thus does not warrant the exercise of jurisdiction. Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205. One of the policies against adjudicating generalized grievances is that the court should "decide the case with some confidence that its decision will not pave the way for lawsuits, which have some, but not all, of the facts actually decided by the court." Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 759. As the court in San Diego Gun Rights Committee, 98 F.3d at 1133, indicated, granting standing to gun rights enthusiasts, such as the individual plaintiffs in the present case, would allow virtually anyone to challenge a federal act concerning gun control. As the Supreme Court stated in Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923):
To conclude, the injury-in-fact alleged by the individual plaintiffs is not sufficient to fulfill the standing requirement of Article III.
V. Association Plaintiffs (Group III)
The Supreme Court has stated that an association has standing to bring suit on behalf of its members when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Because none of the declarations submitted by
The district court's order granting defendants' motion to dismiss for lack of subject matter jurisdiction is
RYAN, Circuit Judge, concurring in part and dissenting in part.
I concur in Parts I, II, IV, and V of my brother's scholarly and well-reasoned opinion, but must dissent from Part III. There, the majority concludes that those plaintiffs who are manufacturers and dealers have standing to sue because they have suffered an injury-in-fact, namely, an economic injury. While I believe the majority correctly states the law with regard to a plaintiffs standing for economic injuries, I am constrained to dissent because my review of the pleadings convinces me that these plaintiffs — whom I, adopting the phraseology of the majority, will denominate the Group I plaintiffs — have never alleged or argued that they suffer from any economic harm as a result of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994).
As the majority correctly recognizes, "before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue." Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990). Equally well-established is the requirement that a plaintiff "must clearly and specifically set forth facts sufficient to satisfy the Art. III standing requirements. A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing." Id. at 155-56, 110 S.Ct. at 1723. Thus, the onus here is on the plaintiffs, the parties invoking federal jurisdiction, to plead sufficient facts to demonstrate their standing in order to confirm jurisdiction in the federal court, which is "`presumed to lack jurisdiction, unless the contrary appears affirmatively from the record.'" San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996) (citation omitted); see King Iron Bridge & Mfg. Co. v. County of Otoe, 120 U.S. 225, 226, 7 S.Ct. 552, 552-53, 30 L.Ed. 623 (1887). And an essential part of the standing inquiry is the existence of an "`injury in fact,'" one which is "concrete in
The majority believes that the plaintiffs have adequately stated an injury-in-fact, in the form of economic damage sustained as a result of the Crime Control Act's strictures. The majority points to the manufacturer-plaintiffs' allegations that "they will be forced to redesign and relabel some products and cease production of others," and the dealer-plaintiffs' assertion that "compliance with the Act affects their daily businesses by prohibiting the possession and sale of specific weapons and ammunition feeding devices." (Maj. op. at 281.) The majority concludes from this that the manufacturers and dealers "have suffered economic harm from the impact of passage of the Act, which has restricted the operation of their businesses in various ways." (Id. at 281.) Elsewhere, the majority asserts that compliance will "requir[e] either a substantial monetary investment or loss in order to comply." (Id. at 286.)
This understanding simply does not comport with the pleadings as I read them. Having combed the record and the briefs, I have found only a minuscule number of references from which an economic injury is even remotely inferable. The plaintiffs have stated baldly that the Crime Control Act has "affected their daily business," with virtually no explication. They have asserted that the manufacturers have been "deterred" from making certain unspecified "intrastate transactions," and have asserted that they have changed the design and name of their firearms. They have also asserted that "[t]he manufacturing plaintiffs were forced to ... cease the production of" some unspecified products.
In an attempt to address my nagging sense that this pleading simply does not, as it were, cut the constitutional mustard, I have surveyed a number of cases in which courts have discussed, with some specificity, the execution of the general pleading principles sketched above — that is, cases in which a plaintiffs pleading of economic injury has been addressed and found either deficient or sufficient. This exercise has served to confirm my sense that the plaintiffs' pleading here is inadequate to justify this court's finding that standing has been established on the basis of an economic injury.
For example, in United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), a case that has been characterized as "surely [going] to the very outer limit of the law" on standing, Whitmore, 495 U.S. at 159, 110 S.Ct. at 1725, a student environmental group brought suit against the Interstate Commerce Commission seeking to enjoin enforcement of certain surcharges on freight rates. In support of standing, SCRAP "alleged that each of its members was caused to pay more for finished products" as a result of the rate hikes. SCRAP, 412 U.S. at 678, 93 S.Ct. at 2411. That was found sufficient to convey standing because it amounted to an allegation that the plaintiffs "ha[d] been or w[ould] in fact be perceptibly harmed by the challenged ... action," and because the "allegations [were] ... capable of proof at trial." Id. at 688-89, 93 S.Ct. at 2416. Likewise, in Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56 (9th Cir.1994), the plaintiffs "alleged that they suffered `lost sales, lost profits, lost business opportunities and other economic harms' as a consequence of the [defendant's] acts." Id. at 60. This was sufficient to challenge a government regulation that "directly affect[ed] [the plaintiffs'] customers and restrict[ed] [their] market." Id. at 61. Here, in contrast to these two cases, the plaintiffs have never asserted that the Crime Control Act will cause any perceptible financial harm, in any form.
In McKinney v. United States Department of Treasury, 799 F.2d 1544 (Fed.Cir.1986), the court considered a lawsuit seeking injunctive relief to bar importation of goods produced in the Soviet Union by forced labor. The plaintiff "assert[ed] standing on the basis of its members and supporters who include `manufacturers or producers or workers employed by manufacturers or producers of products which are similar to and compete with goods or products being imported unlawfully from the Soviet Union.'" Id. at 1553 (footnote omitted). This allegation failed because
Id. at 1554 (footnote and citation omitted). The court explained that "[r]elevant information might include one or more of the following: (1) reduction in product pricing; (2) decline in domestic sales; (3) decline in domestic production; (4) drop in producers' share prices; (5) decline in the number of producers; (6) producer bankruptcies; (7) worker layoffs or cutback; or (8) reduction in workers' wages." Id. at 1554 n. 27. It seems patent to me that the plaintiffs' pleading here is characterized by exactly the same type of generality as found in McKinney, and suffers from exactly the same type of omissions.
Finally, in Adams v. Watson, 10 F.3d 915 (1st Cir.1993), the court considered a lawsuit in which plaintiffs were objecting to state-imposed price regulations in the dairy industry. The first amended complaint was inadequate; it "included allegations that the pricing order caused appellants competitive injury and economic harm." Specifically, it
Id. at 917 & n. 6. Needless to say, this inadequate pleading offers far more in the way of economic-injury allegations than does the complaint here. The Adams court reversed the district court, however, insofar as it held that the plaintiffs should have been permitted to "recast their first amended complaint by adding two paragraphs for the stated purpose of alleging `with greater specificity "injury in fact."'" Id. at 917. The amendment would have set forth the specific "chain of economic events" that the plaintiffs believed would "result in [their] loss of future income, profits, and business opportunities." Id. at 919. Again, it is needless to say that the plaintiffs here have never suggested a specific "chain of economic events" that caused them harm.
To emphasize, the plaintiffs here have never even uttered the words "economic injury" or anything along those lines. They have never claimed that any revenue loss or expenditure — either currently existing or potentially forthcoming — is attributable to the Crime Control Act. Thus, contrary to the intimations of the majority, there is no allegation — and certainly no evidence — that the plaintiffs have suffered or will suffer "substantial economic harm" as a result of the Crime Control Act. And in addition to not having been pleaded, the theory of economic harm was never addressed by the district court, and has not been argued by the parties in their briefs.
Presumably, the majority feels that economic harm is palpable here: that if weapons are banned, or if redesigning or relabelling is required, the manufacturers and dealers of those weapons are necessarily injured, particularly vis-à-vis certain competitors whose products were not affected by the Crime Control Act. And indeed, there is a line of "direct competitor" cases in which "future injury-in-fact is viewed as `obvious' since government action that removes or eases only the competitive burdens on the plaintiff's rivals plainly disadvantages the plaintiff's competitive position in the relevant market-place." Adams, 10 F.3d at 922 (emphasis omitted). But as the Adams court cautioned, "`[w]here "injury" and "cause" are not obvious, the plaintiff must plead their existence in his complaint with a fair degree of specificity.'" Id. (citation omitted).
To me, this case does not present the court with an obvious situation of economic harm. To again quote the Adams court,
Id. at 923. I do not decline to join my colleagues' opinion out of any reticence stemming from a flawed understanding of basic economic principles. Instead, I see a wide variety of possible explanations for why, here, the Group I plaintiffs would not have suffered any economic harm from the Crime Control Act, and why the absence of actual harm is the most obvious explanation for why they failed to allude to such harm in their complaint.
It is, for example, quite possible that the manufacturers here have not actually stopped manufacturing prohibited weapons, despite the dictates of the Crime Control Act; nowhere do they straightforwardly assert that they have desisted from manufacturing — they state only that they have been "deterred." While they state that they have relabelled and redesigned some products, there is no corresponding statement of what that cost them, or any statement that they have not been able to raise their prices sufficiently to cover whatever costs did result. The latter possibility is definitely suggested by San Diego County, 98 F.3d 1121, in which the plaintiffs explicitly complained that manufacturers had raised the price of certain weapons by 40 to 100%. See id. at 1130. Relatedly, given that the relevant marketplace is extremely broad — indeed, nationwide — it is less likely that the Group I plaintiffs will experience future economic loss from the disadvantages apparently wrought by the Crime Control Act, cf. Adams, 10 F.3d at 922, and correspondingly less likely that even if there were a loss, it could be causally attributable to the Crime Control Act, see San Diego County, 98 F.3d at 1130.
In any event, we are not faced with the usual case, where the question is whether allegations of future competitive injury are too speculative to confer standing. We are instead faced with a case in which the plaintiffs have failed to even mention economic damage as a basis for standing, but where the majority has drawn what I believe are unwarranted conclusions from circumstances alluded to in the pleadings. Because I find the majority's reasoning entirely too speculative, I respectfully dissent.
(30) The term "semiautomatic assault weapon" means —
(A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as —
The term "large capacity ammunition feeding device" —