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May 16, 1995

JANET RENO, Attorney General of the United States of America; FRANK NEWMAN, acting Secretary of the Treasury; BUREAU OF ALCOHOL TOBACCO AND FIREARMS, Defendant.

The opinion of the court was delivered by: HUFF

 Plaintiffs have filed a complaint challenging the constitutionality of the Violent Crime Control and Law Enforcement Act of 1994. Defendants have responded with a motion to dismiss, or in the alternative, for summary judgment. Having reviewed the papers submitted by both parties and heard oral argument on the matter, the court grants defendant's motion to dismiss for lack of jurisdiction.


 On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act ("Crime Control Act") which amends the GCA. Essentially, the Crime Control Act places a freeze on the production of new weapons. Under the Act, for a period of ten years, with certain exceptions, it is unlawful for a person or entity to manufacture, transfer or possess a semiautomatic assault weapon or "transfer or possess a large capacity ammunition feeding device." 18 U.S.C. §§ 921-24. Among the prohibited weapons are semiautomatic rifles, pistols and shotguns. These outlawed weapons are specifically delineated in the Act by name and model. The Crime Control Act also prohibits copies or duplicates of such firearms as well as semiautomatic weapons that have two or more of the listed assault weapons features. 18 U.S.C. §§ 922(v)(1), 921(a)(30). The Act exempts certain weapons which are listed in Appendix A or described in subsection (v)(3) of the Act.

 Furthermore, the Act amends the licensing provisions of the GCA. The new procedures require applicants for federal firearms licenses to certify that (1) the business to be conducted under the license is not prohibited by state or local law; and (2) the business will comply with the requirements of state and local law and will not be conducted until such requirements have been met. 18 U.S.C. § 923(d)(1)(F)(i) and (ii).

 The Act also includes two major exceptions: a grandfather clause and an exception for government agencies and retired law enforcement officers. The grandfather clause exempts semiautomatic assault weapons or large capacity ammunition feeding devices that were lawfully possessed as of September 13, 1994, the date of the bill's enactment. 18 U.S.C. §§ 922(v)(2) and (w)(2).

 The government agency provision exempts law enforcement agencies and their officers from the aegis of the Act. It also provides a limited exception for the "possession, by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving a firearm, or a semiautomatic assault weapon transferred to the individual by the agency on such retirement." 18 U.S.C. §§ 922(v)(4)(C) and (w)(3)(C).

 Violations of subsections 922(v), (w), or false certification under Section 923(d), may result in fines, imprisonment or both. 18 U.S.C. §§ 924(a)(1)(A), (B); 3571(b). False certification may also result in license revocation. 18 U.S.C. § 923(e).

 Following the passage of the Act, the Bureau of Alcohol, Tobacco and Firearms ("ATF"), a division of the Treasury Department, sent a letter to all federally licensed firearms manufacture advising them that component parts in lawful possession on or before September 13, 1994 were subject to the grandfather clause. (Defs.' Exh. 1). A manufacturer or individual seeking a determination as to whether an item or group of items constitutes a semiautomatic assault weapon for purpose of the grandfather clause, or for any other purpose, may request a classification from ATF's Firearms Technology Branch. Id.

 On January 9, 1995, plaintiffs filed this complaint challenging the constitutionality of the Crime Control Act and requesting declaratory and injunctive relief. The named plaintiffs are individuals as well as organizational entities including: the San Diego Militia; the San Diego Gun Rights Committee; John Wallner, the president of the San Diego Militia; Mark Bruce Skane, a licensed federal firearms dealer; and Henri Jon Donald Buettner, a retired Marine Corps officer. None of these plaintiffs have been prosecuted, arrested or incarcerated for violation of the Crime Control Act. Essentially, plaintiffs seek pre-enforcement review of the Act.

 Defendants have filed a motion to dismiss the complaint for lack of jurisdiction. In the alternative, they request a motion for summary judgment. Plaintiffs oppose the motion. Having reviewed the papers submitted by both parties, the court grants defendants' motion to dismiss for lack of jurisdiction.


 A. Standard

 Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a complaint may be dismissed for "lack of jurisdiction over the subject matter." FED. R. Civ. P. 12(b)(1). In a motion to dismiss for lack of subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

 When considering a 12(b)(1) motion to dismiss, the court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 581, 109 S. Ct. 1312 (1989). Consideration of material outside the pleadings do not convert a 12(b)(1) motion into one for summary judgment. Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983).

 B. Application of Standard

 Defendants argue that plaintiffs' complaint should be dismissed on grounds of justiciability. Specifically, defendants contend that plaintiffs lack standing and that their claims are not ripe for review. The court considers each of defendants' contentions in turn.

 1. Standing

 Article III of the Constitution limits the judicial power of the federal court to "cases" and "controversies." Federal courts are presumed to lack jurisdiction "unless the contrary appears affirmatively on the record." Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993).

 To establish standing as required by Article III, plaintiffs must satisfy the following test: First, plaintiffs must demonstrate that they have suffered an "injury-in-fact," which is defined as an invasion of a legally-protected interest. Lujan, 112 S. Ct. 2130 at 2136 (1992). Plaintiffs must show that this injury is concrete and particularized and "actual or imminent, not conjectural or hypothetical." Id. (citations omitted).

 "Second, there must be a causal connection between the injury and the conduct complained of." Id. That is, "the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id. (citations omitted).

 Third and finally, plaintiffs must demonstrate that it is "likely" (as opposed to merely speculative) that a favorable decision by the court will redress the injury. Id. The party invoking federal jurisdiction ...

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