Note: although the suit in question is over gun control ordinances, this thread isn’t about guns or gun control per se and I’d really like to not get bogged down on that. Rather, it’s about a radical change in the requirements of standing.
I thought it was pretty much universal that you had to face a penalty from a law in order to challenge it; I don’t know what that’s actually called but it might be termed the “skin in the game” rule.
Now if they had brought suit in federal court, there would be no standing. See my thread on [THREAD=879236]changing the Eleventh Amendment[/THREAD]. In state court, if the state wants to waive sovereign immunity, it is free to do so, see Pa. S.C. § 761(a) which gives the Commonwealth Court of Pennsylvania original jurisdiction to hear civil actions or proceedings against the Commonwealth government.
Nonetheless, the Commonwealth Court did have to rule on a challenge to the suit based on standing. It now goes back to the lower courts to be heard on the merits.
As to the OP your initial instinct is mostly correct in that standing in these types of cases typically requires an actual injury i.e. an arrest, prosecution, etc. Sometimes, however, the mere threat of injury is sufficient as long as it is reasonably “imminent” and not “merely speculative.” And that threatened injury can be particularly significant when the subject is a Constitutional Right. This is most true for 1st Amendment cases where the threat of a prospective “chilling effect” on speech, for example, has been found to create standing. This is, of course, greatly simplified and I’d be glad to expand or provide cites if anyone’s interested.
If your reference to the plaintiffs lacking standing to bring this case in Federal Court is based solely on the 11th Amendment I think you’re mistaken. First of all, 11th Amendment immunity does not extend to declaratory or injunctive relief, as was asked for in this case. Secondly, 11th Amendment immunity also does not extend to the subdivisions of a state such as counties or municipalities unless they are “acting as an arm of the state” (another factor is if damages would come from state treasury, irrelevant here) and the defendant in this case is the city of Harrisburg.
If those ordinances are in violation of Pennsylvanias pre-emption laws, why isn’t the Attorney General going after the city? Why do private citizens have to do the states job?
There is nothing really new here. Standing via a threatened injury is a long-standing doctrine, evolving to be sure but not in any way of recent origin. It also remains a pretty difficult standard to meet. The more interesting facet of the case was in the filing in Federal Court where the plaintiffs argue the same kind of “chilling effect” as I mentioned above but asked the Court to extend it to the 2nd Amendment (as opposed to the 1st and speech in particular). In its granting the motion to dismiss, the Court declined to do so but 1) that’s fairly unsurprising as a District Court could be reluctant to take such a novel approach and stick its neck out 2) I predict we’ll see a lot more cases arguing that “chilling effect” doctrine should be applied to 2nd Amendment rights. Of course so far that argument hasn’t gotten much of anywhere. I didn’t say it was super interesting.
The entire intent of statewide pre-emption statutes is to have continuity of law through out the entire state, instead of a patchwork of confusing, and many times unfair laws. Pre-emption laws prohibit local ordinances that are more strict than state law or that creat a prohibition of something that state law allows for.
So I still don’t understand why Pennsylvania doesn’t go after municipalities that violate it’s pre-emption statutes. Why is it up to private citizens to do what the state should be doing?
Perhaps the PA AG thinks the local ordinance doesn’t violate the preemption statute. Perhaps the preemption statute is unconstitutional. Why don’t you ask the AG’s office?
Returning to the actual thread topic, this is not a change in existing standing law. So long as the threat of harm is concrete and imminent, standing has been established. It’s enough that the law chills the free exercise of otherwise guaranteed rights. I take no position on whether the law does so or not.
The PA Court granted standing because of, like you said, the “immediate” and “not speculative” threatened injury. The “chilling effect” doctrine so far has been, to my knowledge, only extended to Free Speech/ Association cases and not to any other Constitutional Rights. The Federal Court specifically rejected the argument in denying standing and the PA Court mentioned the argument as made by the Plaintiff but didn’t rely on it or address it in their decision.
The doctrine actually has an interesting history in that it came about rather subtly and slowly and it’s probably now almost inextricably tied up with the Overbreadth doctrine (ala RAV v St Paul) because of the similar issues. But the basic idea seems to lend itself to arguments that the “chilling effect” could apply to the free expression of other 1st A rights such as religion or assembly, and of course 2nd A rights as well. But as far as I know no Court has yet accepted such an argument.
I haven’t had time to look into this aspect of the case at all but it’s entirely possible that only the state of PA has standing to challenge the local ordinance as violating state preemption. A preemption statute governs the relationship between a law-making body and its subordinate law-making bodies (Fed/state, State/municipalities, counties etc.) and the Plaintiffs are not party to this relationship. If I’m correct the injured party for the purposes of standing in a case for violation of the preemption statute would be the state of PA/state legislature. If so, the actual nature of the law in question could be irrelevant except as to whether it improperly intrudes into a preempted area of legislation.
That’s my fairly strong suspicion anyways. Obviously the Constitutional claim is much stronger in that they were granted standing and a victory on Constitutional terms would be a much more robust one than one based on technical statutory grounds. But the fact that the preemption argument seemingly drops out of the picture entirely after being raised at some point either indicates that it was a strategic decision of where to focus or perhaps more likely it was a legal dead-end.
