Standing on Dangerous Ground

The lawsuit was filed by the NAACP against 165 gun manufacturers and distributors on behalf of "those whose interests the [NAACP] represents"—in other words, every African-American in the country. The lawsuit cites alleged "negligent marketing practices" that have led to "disproportionate numbers of injuries, deaths, and other damages" among African-Americans.

The NAACP is not seeking monetary damages. Instead, it is asking for "injunctions that would place sweeping restrictions on buyers and sellers of handguns."

If the case is allowed to proceed, even if the NAACP loses, it will change the face of federal jurisprudence. Allowing the NAACP to sue gun manufacturers on behalf of all African-Americans means that anyone has "standing" to sue anyone over anything.

That’s the conclusion drawn by Walter Olson of the Manhattan Institute and the author of the book The Rule of Lawyers. By "standing" he means the right to file a lawsuit. The Constitution limits that right to those with a concrete and particular legal interest, whose interest has been injured or threatened. Only they have standing.

This requirement was in keeping with the founders’ view of the courts as places where disputes between parties are adjudicated and not where laws and social policy are made. It is why Alexander Hamilton called the judiciary the "least dangerous branch" of government.

Not anymore: Since the early sixties, federal courts have been acting as "super-legislatures," creating rights that aren’t found in the Constitution and substituting their judgment for that of our elected representatives.

At the heart of this activism has been a willingness to rewrite the requirements for legal standing. Before the Court could create the right to an abortion in Roe, for example, it first had to get around the fact that, by the time it delivered its opinion, Jane Roe would no longer be pregnant and, thus, would not have standing. So it created a unique exception in the case of abortion.