Dean Weingarten lifts some of the prose out of the most recent decision by Roger T. Benitez.  The case involves “A number of California residents, firearm businesses, special interest groups, foundations, and a political action committee [who] have organized to sue California AG Xavier Becerra et al, to challenge the constitutionality of California’s complex net of regulations for the ownership and use of various firearms the state deems to be “assault weapons.”

I would have suspected that if this case was appealed directly to the Supreme Court they would have found that there was no “standing” to sue if there was no arrest or loss of compensation.  In other words, I’m accustomed to seeing courts ignore such cases because of “standing.”

From the order:

It has long been the case that a plaintiff possesses Article III standing to bring a pre-enforcement challenge to a state statute which regulates the exercise of a federal constitutional right and threatens a criminal penalty. “When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to ‘knowingly display for commercial purpose’ material that is ‘harmful to juveniles’ as defined by the statute.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014). Of course, “[s]uch challenges can proceed only when the plaintiff ‘faces a realistic danger of sustaining a direct injury as a result of the law’s operation or enforcement.’” Skyline Wesleyan Church v. California Dep’t of Managed Health Care, 968 F.3d 738 (9th Cir. 2020) (citations omitted). But the simple continued existence of the criminal penalty provision together with an absence of a defendant’s disavowal of prosecution satisfies the requirement of a credible threat of prosecution. Susan B. Anthony List, 573 U.S. at 164 (threat of future enforcement of the false statement statute is substantial with history of past enforcement).

The bar for standing is not particularly high. For example, organizations that have been “perceptibly impaired” by a government rule “in their ability to perform the services they were formed to provide” is sufficient for organizational standing. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1266–67 (9th Cir. 2020) (“The Organizations are not required to demonstrate some threshold magnitude of their injuries; one less client that they may have had but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to relief.”). An organization has standing to sue on behalf of its members when “the interests it seeks to protect are germane to the organization’s purpose.” Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020) (also noting individual’s standing to challenge border wall construction based on: “concern[] that the wall ‘would disrupt the desert views and inhibit him from fully appreciating the area,’ and that the additional presence of U.S. Customs and Border Protection agents ‘would further diminish his enjoyment of these areas’ and ‘deter him from further exploring certain areas’ [while] worrie[d] that ‘construction and maintenance of the border wall will limit or entirely cut off his access to fishing spots’ along the border, where he has fished for more than 50 years.”).

Good.  This is a decent decision by a man with honor.  Maybe this case will appear before the Ninth Circuit and force them to make a decision, and then perhaps it will get a hearing before the Supreme Court.