Gavett v. Alexander

• Decision Date: 04 September 1979
• Docket Number: Civ. A. No. 78-2130.
• Citation: 477 F. Supp. 1035
• Parties: Geoffrey S. GAVETT et al., Plaintiffs, v. Clifford L. ALEXANDER et al., Defendants.
• Court: U.S. District Court — District of Columbia

477 F. Supp. 1035

Geoffrey S. GAVETT et al., Plaintiffs, v. Clifford L. ALEXANDER et al., Defendants.

Civ. A. No. 78-2130.

United States District Court, District of Columbia, Civil Division.

September 4, 1979.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Leonard B. Simon, Arnold & Porter, S. Mark Tuller, Washington, D. C., for plaintiffs.

Kenneth M. Raisler, Asst. U. S. Atty., Dept. of Justice, Stephen N. Shulman, Washington, D. C., for defendants.

OPINION

HAROLD H. GREENE, District Judge.

This action challenges the constitutionality of 10 U.S.C. § 4308(a)(5) which directs the Department of the Army to sell firearms at cost to members of the National Rifle Association of America (NRA).¹ It is claimed by plaintiffs that the statute violates their rights under the First Amendment and under the equal protection guarantee of the Fifth Amendment.

I

Section 4308(a)(5) establishes a firearms sales program as part of a larger Civilian Marksmanship Program which, among other things, provides for the construction and maintenance of rifle ranges; helps to administer rifle matches; and instructs civilians in marksmanship. See 10 U.S.C. § 4307-13. The program, which is overseen by the National Board for the Promotion of Rifle Practice (NBPRP),² was initiated in 1903 for the purpose of improving marksmanship skills among citizens in order that those called to military service might be more proficient marksmen and require less training.³ In 1905 Congress authorized the sale of Army firearms to rifle clubs affiliated with the NRA (P.L. 58-149, 33 Stat. 986), and in 1924 it enacted the present statute by way of a floor amendment to the War Department's Appropriations Act of 1924 (P.L. 68-213, 43 Stat. 509-510).⁴

Since the time of the enactment of the statute, the Army has been selling rifles to members of the NRA at cost, that is, at prices substantially below market.⁵ Sales figures for the early years are unavailable, but after World War II rifles were sold in substantial numbers. During the period 1960 to 1967 the Army sold tens of thousands of firearms each year to NRA members, including rifles, shotguns, and pistols.⁶ In 1968 the program was reduced substantially, apparently because of the Vietnam war. While the Army plans to sell only 600 M-1 rifles in 1979, the Director of the Civilian Marksmanship Program and the NBPRP proposed in November 1977 that the program again be expanded to the levels existing prior to 1968.

In order to be eligible for the sales program⁷ an individual must be a United States citizen over the age of 18, a current member in a local or state gun group, and a current member in the NRA, and he must produce evidence of current competitive shooting activity with high-powered rifles.⁸ Only the NRA membership requirement is being challenged in this action. But see Part VII infra.

The Civilian Marksmanship Program has been the subject of considerable political controversy. A study conducted for the Army in the 1960s by the Arthur D. Little consulting firm recommended that the requirement of NRA membership for rifle purchases be eliminated. In 1977, the Administration proposed that the program be discontinued because of the "introduction of sophisticated weaponry and revisions of war time tactics." A similar proposal for abolition is contained in an annual report of the President dated January 22, 1979. On the other hand, an attempt by Senator Kennedy of Massachusetts to eliminate the program from the 1978 budget was defeated in the Senate by a wide margin (114 Cong.Rec. 12291-93 (daily ed. July 19, 1977)), and the Investigations Subcommittee of the House Armed Services Committee recommended last year that some several hundred thousand surplus rifles scheduled for destruction be sold instead in unlimited quantities under the auspices of the Civilian Marksmanship Program.

Plaintiffs in this action are the National Coalition to Ban Handguns (NCBH) and one Geoffrey S. Gavett. NCBH, an independent corporation, formerly affiliated with the Methodist Church, is an umbrella organization of various groups which favor gun control, and it actively lobbies in support of that program. The individual plaintiff, a resident of Maryland, has expressed a wish to purchase a rifle under the Civilian Marksmanship Program. He meets all the requirements for purchase except membership in the NRA, claiming that he does not wish to join the NRA because he disagrees with its political goals. He applied for the purchase of a rifle in the 1979 sale⁹ but was advised that no waiver of the requirement of membership in the NRA could be granted in view of the requirements of the statute. This action challenging the constitutionality of the law followed.

The National Rifle Association, upon its application, was allowed to intervene in this litigation. A principal objective of that organization, which has more than one million members, is the protection of the ability to acquire, possess, and carry guns, but it also fosters improved marksmanship and other related matters. NRA's legislative lobbying and political contribution campaigns in opposition to firearms regulation are financed through a Political Victory Fund.¹⁰ Legislative lobbying is managed by the NRA Institute for Legislative Action (ILA).¹¹ ILA's general operations (salaries and administrative costs) are paid for with NRA's general revenues, and other ILA expenses are funded by direct contributions to the Institute.

II

The Army and the NRA argue that neither the NCBH nor Gavett has standing to pursue this lawsuit. Although the NCBH may well have standing (see Buckley v. Valeo, 424 U.S. 1, 11, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)),¹² it is unnecessary fully to explore that issue, for Gavett's standing cannot seriously be doubted.

The standing concept is implicit in the requirement of Article III of the Constitution that a court may decide only a "case or controversy," that is, it may not decide hypothetical questions or provide advisory opinions to parties who would not be injured if they did not prevail. As the Supreme Court stated in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), the question on standing is whether plaintiff has "alleged such a personal stake in the outcome of a controversy as to assure that concrete adverseness which sharpens the presentation of issues on which the Court so largely depends for illumination of difficult constitutional questions." Standing requires a "fairly traceable" causal connection between the claimed injury and the challenged conduct. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); see also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The stake a plaintiff must have in the outcome of a suit to achieve standing need not necessarily be economic, but it may involve such intangible values as political or social concerns. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Buckley v. Valeo, supra.

Plaintiff Gavett claims, quite simply, that he has the requisite personal stake in this controversy by virtue of the fact that he wishes to purchase a rifle from the government at a discount price but is being denied that opportunity because the act reserves it exclusively to members of the NRA. Clearly, plaintiff would be able to purchase an Army rifle at a discount but for the NRA membership requirement imposed by the statute, and he is thus "injured" by it. It is equally clear that, should he prevail in this lawsuit the injury would be redressed: he would be able to purchase a rifle at the same price as NRA members. Under the most elementary rules of standing, jurisdiction, and case or controversy, Gavett qualifies as a plaintiff.

The NRA does not quarrel with this analysis in principle but instead challenges Gavett's good faith, claiming that he is a "contrived" plaintiff, and that therefore neither is he suffering genuine injury from the statute (or the program that it establishes) nor would a victory in this litigation provide him with genuine redress. In this regard, it is said that the NCBH, recognizing possible standing problems insofar as it was concerned, decided to bring Gavett in as an additional plaintiff to overcome those problems. Gavett, according to the NRA, was not interested in shooting guns prior to his involvement in this action nor had he ever heard of the Civilian Marksmanship Program, but bought a rifle, joined a rifle club, and participated in a rifle match solely to attempt to qualify for the weapons sales program.

It has long been settled by the decided cases, including a number of decisions of the Supreme Court, that an individual does not forfeit his standing for jurisdictional purposes merely because he is a "test" plaintiff. For example, in Evers v. Dwyer, 358 U.S. 202, 204, 79 S.Ct. 178, 180, 3 L.Ed.2d 222 (1958), a black resident of Memphis, Tennessee, boarded a bus in that city apparently solely for the purpose of testing segregated seating. The District Court dismissed the complaint on standing grounds but the Supreme Court summarily reversed, stating that the fact "that the appellant may have boarded this particular bus for the purpose of instituting this litigation is not significant." Similarly, in Meyers v. Pennypack Woods Home Ownership Ass'n., 559 F.2d 894, 898 (3rd Cir. 1977), a black resident of New York applied for housing in Philadelphia. A District Court holding that his status as a tester barred him from relief for lack of a personal interest or stake was reversed by the Court of Appeals which noted that "even assuming arguendo that Meyers' application for housing was in fact motivated solely by his desire to test the legality of the...