By: FPC Director of Legal Strategy and attorney Adam Kraut

In the Second Amendment world, we often hear about cases winding their way through the court system. We’re all familiar with cases like Heller and McDonald, but the path from the government passing an unconstitutional law to getting a case before a court is not often discussed. Here, we will walk through the process in detail, to give you a better idea of what goes into protecting our rights through the courts, specifically filing a federal action.

Article III of the United States Constitution limits the authority of the federal courts to decide (only) “cases” and “controversies.” Put another way, the federal courts are not allowed to issue “advisory opinions” based on hypothetical scenarios. Thus, in order for a person to bring a lawsuit, there must be an actual, present dispute between real parties. A court cannot decide an issue--especially constitutional claims--based on hypotheticals or conjecture. 

Article III

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;— to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.


For a lawsuit to be viable, a plaintiff must have “standing.” For standing under Article III, the Supreme Court requires that: (1) the plaintiff suffered an actual or threatened injury; (2) the injury can fairly be traced to the challenged action of the defendant; and (3) the injury is likely to be remedied by a favorable decision. If the individual is unable to establish one of these three elements, the lawsuit may be dismissed for lack of standing. (See, e.g., FRCP Rule 12(b)(6).)

For example, in Parker v. District of Columbia, 478 F.3d 370, 374 (D.C. Cir. 2007)--which later became District of Columbia v. Heller, 554 U.S. 570 (2008)--five of the plaintiffs were found to not have standing because “[a]lthough plaintiffs expressed an intention to violate the District's gun control laws, prosecution was not imminent.” In contrast, Dick Heller had standing because he had applied for and was denied a registration certificate to own a handgun. Parker, 478 F.3d at 376. “The denial of the gun license is significant; it constitutes an injury independent of the District's prospective enforcement of its gun laws…” Id. The court elaborated: 

Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller's alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury.


Organizations can bring a lawsuit: (1) if there is an action that directly injures the organization; or (2) on behalf of its members. The Supreme Court has said that a membership organization can bring a suit on behalf of its members if at least one of its members has standing, the interests at stake are germane to the organization’s purpose, and neither the claim nor the relief requires participation of the organization’s individual members. Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).

In short, any random person can’t just sue the government. The government must have actually done something to you, your organization, or your organization’s members, and that action must be at the core of the lawsuit. A government threat typically isn’t enough. For example, in Heller, the government banned all handguns. Even though nobody in D.C. could legally acquire a handgun, the only person who had standing in that case was the person whom the government actually denied a permit to. Someone the government prosecutes under a law can also challenge its constitutionality.


While standing deals with who may bring a lawsuit, ripeness examines when someone may bring a lawsuit. The purpose of determining whether a case is ripe is to prevent an issue from being decided prematurely.  

“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998).

Federal courts consider two things when determining whether a case is ripe: (1) whether the parties will suffer hardship if the court doesn’t promptly take the case; and (2) whether the underlying issues are appropriate for the court to review, or alternatively, would benefit from future developments. Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

For example, in National Park Hospitality Ass’n. v. Department of Interior, 538 U.S. 803 (2003), the Supreme Court held that the claim presented was not ripe for review. National Park concessioners challenged Park Service regulations implementing the National Parks Omnibus Management Act of 1998. The petitioners brought a facial challenge to the regulation and were not actively litigating any concrete or actual disputes in relation to their contracts with the NPS. 

Applying Abbott’s two-step analysis, the Court first determined that it would not cause any real hardship to defer review of the case (step one of Abbott). Under step two, the Court determined that the issues would benefit from future developments (i.e. an actual contractual dispute) before deciding the matter.

Consequently, the Court determined that the issue presented was not ripe for adjudication. 

In short, ripeness is based on whether the underlying controversy is ready for the court to step in. If the parties have no “skin in the game,” and thus won’t be harmed, the issue is not ripe.


In order to hear a case, the court must have jurisdiction. The jurisdiction of the federal courts is defined by the Constitution, congressional statutes, and decisions of the Supreme Court. Article III, Section 2 of the United States Constitution specifies nine types of “cases” or “controversies” that federal courts have jurisdiction over:

  1. all cases in law and equity arising under the Constitution, laws, and treaties of the United States;
  2. all cases affecting ambassadors, other public ministers and consuls;
  3. all cases of admiralty and maritime jurisdiction;
  4. controversies to which the United States is a party;
  5. controversies between two or more states;
  6. controversies between a state and citizens of another state;
  7. controversies between citizens of different states;
  8. controversies between citizens of the same state claiming lands under grants of different states; and,
  9. controversies between a state or its citizens and foreign states, citizens, or subjects.

Congress has specifically stated that federal courts can hear cases arising from federal statutes. For example, 28 U.S.C. § 1331 states that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” (There are some limited exceptions, but those aren’t relevant for the purposes of this article.)


If a court has jurisdiction, the next question is whether “venue” is appropriate. Venue is the location where the case is heard. 

28 U.S.C. § 1391 describes venue generally, as there are some special rules that are described in the following sections. For example, a civil suit can be brought in: (1) the district court that covers the area where the defendant(s) reside (assuming they are all residents of the state); (2) the district court that covers the area where a substantial part of the events leading to the lawsuit occurred; or (3) if nothing else is appropriate, any district court where a defendant would be subject to its personal jurisdiction.

Facial vs. As-Applied Challenges

A facial challenge contends that a statute, rule, regulation, or policy is unconstitutional in all circumstances and therefore void. In other words, the challenged statute, rule, regulation, or policy is unconstitutional “on its face.” If a facial challenge is successful, the challenged law or policy is found to be unconstitutional as applied to everyone. 

An as-applied challenge contends that a statute, rule, regulation, or policy is unconstitutional as applied to the plaintiff’s specific factual circumstances. In other words, “this law, as it was applied specifically to a particular person, violated the Constitution.” If an as-applied challenge is successful, a court will enjoin (i.e., prevent the enforcement of) the law or policy against the plaintiff, and in some cases others “similarly situated,” but the law would still apply to everyone except the plaintiff (or those similarly situated, if the court says as much).

Generally, facial challenges are not favored by the courts and are rarely successful. For better or for worse, the judiciary tries to avoid wholesale overturning acts of the legislature. The Supreme Court has indicated in different cases that most challenges should be brought on an “as-applied” basis.

Pre-enforcement vs. Post-enforcement

A pre-enforcement challenge is a lawsuit that challenges a law or policy before it is actually enforced against the plaintiff(s). Pre-enforcement challenges are allowed when (1) enforcement is inevitable or there is a substantial risk of enforcement and (2) the law currently injures the plaintiff. 

One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). 

Courts allow pre-enforcement challenges to lower the “cost” of challenging potentially unconstitutional laws. People would bring fewer challenges if they first had to violate the law and be punished to gain the opportunity to bring a challenge. (In the context of criminal matters, because of abstention doctrine, one generally cannot challenge a law or policy in a federal civil court while a state criminal action is pending. Thus, one must first challenge the law in his criminal case, perhaps in a pre-trial motion to dismiss or as an affirmative defense.)

Post-enforcement challenges occur after a law or policy has been enforced against the plaintiff and when the plaintiff has already suffered an injury-in-fact. An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations and quotations omitted).

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Allegations, as the name suggests, are simply assertions by a party who makes a claim not yet proven to be true. Allegations are set forth in a legal pleading, such as a complaint


Plaintiffs bring their claims in a legal pleading, such as a complaint. Generally, there are two types of claims, those in law (“legal claims”) and those in equity (“equitable claims”). See section on Remedies & Relief.

A complaint presents information about the case in a particular order. Complaints are usually structured with the following elements:

  • Introduction
  • Parties
  • Jurisdiction and Venue
  • Statement of Facts
  • Constitutional Provisions/Statutes/Regulations Involved or at Issue
  • Counts
  • Prayer for Relief

The claims are presented in the section of the complaint that lists the counts. Each count describes a cause of action (i.e., the legal theory under which the plaintiff believes they are entitled to relief). Generally, the counts will be formatted in the order of: (1) the rule of law (i.e., the actual law at issue and how it should apply); (2) facts (i.e., the assertions of what led to and underlies the lawsuit); and (3) a description of the harm that the plaintiff endured (e.g., loss of property, liberty, business, or other injury). 

It is common for a plaintiff to allege multiple claims in a single complaint. Some may be based on a violation of a constitutional right, others on a statutory basis, and still more on the basis of common law, contract, or tort. 

Federal vs. State Defendants

Claims against governmental actors vary depending on whether the defendant is the federal or state government. 

The distinction between a Bivens action and a Section 1983 claim illustrate this well. 42 U.S.C. § 1983’s lineage goes back to immediately after the civil war in the Enforcement Act of 1871. Section 1983 allows an individual to sue a state actor in federal court when the state actor violates the individual’s rights. In addition to being able to get an injunction and declaratory relief, individuals can also be awarded monetary damages. 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Bivens applies when suing federal actors in their individual capacity. While Congress passed the Federal Tort Claims Act (FTCA) in 1946, it did not allow individuals to sue specific federal actors, only the United States itself. In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court found that while there was no express (or statutory) right to sue a federal agent for a violation of the Fourth Amendment, there was an implied right to do so. Thus, Bivens paved a pathway--a “cause of action”--for individuals to sue federal agents for violations of their constitutional rights, similar to how they sue state actors under Section 1983. 

Remedies & Relief

A plaintiff sues for relief from the harm the defendant caused him. That relief may be an order preventing the enforcement of an unconstitutional law (injunction), or an award making a plaintiff whole from an injury (money, because the court can’t unbreak a person’s arm). Remedies and relief can either be equitable (non-monetary) or legal (monetary). 

Examples of equitable relief include injunctions, specific performance, and vacatur. Legal relief refers to damages.

Injunctive Relief

Injunctive relief is a legal remedy available to a plaintiff. An injunction is a court ordered act or prohibition against performing an act. Injunctions come in three forms: (1) temporary restraining orders, (2) preliminary injunctions, and (3) permanent injunctions. 

A temporary restraining order (“TRO”) can be issued ex parte (meaning only one party is present) to restrict the other party from doing something for a period of time. Under the Federal Rules of Civil Procedure a TRO can only last up to 14 days. 

A preliminary injunction is typically issued when a case is just starting and after both sides have had a chance to argue the issue before the court. If granted, a preliminary injunction prevents the party it is issued against from performing a certain action (the action that was enjoined, such as enforcement of a law) throughout the duration of the case. The purpose of a preliminary injunction is to maintain the status quo until the case is decided.

A permanent injunction is issued at the end of a case. They have no set time limit in which they expire (hence, “permanent”). 

For example, a request for an injunction against the enforcement of a law, if granted, would prevent the government from enforcing the law. See TRACY RIFLE AND PISTOL LLC v. Harris,  339 F. Supp. 3d 1007 (ED California 2018) (“Further, the Court hereby orders that Defendants, and all persons and entities acting on their behalf, are enjoined from enforcing California Penal Code § 26820.”).

Declaratory Relief

Declaratory relief is another legal remedy available to a plaintiff. Unlike injunctive relief, which orders a party to do something or stop doing something, declaratory relief is simply a court order declaring the parties' rights under the law. For example, the Court may order something like the following:

It is ORDERED and DECLARED that the felon-in-possession ban of 18 U.S.C. § 922(g)(1) is unconstitutional as applied to plaintiff Raymond Holloway, Jr. (“Holloway”) in violation of the Second Amendment to the United States Constitution.


Damages are a sum of money that a court can award to a plaintiff when there has been a breach of duty owed to him or a violation of his rights. Damages are either compensatory or punitive in nature. Compensatory damages are awarded to compensate the injured party for his loss or injury. Punitive damages punish the wrongdoer. It is possible to be awarded both types of damages. 


To be able to file a case, and avoid having it dismissed outright, a series of requirements must be met. A dispute over whether those requirements are met can lead to additional litigation before a court even addresses the merits of the case.

This is Part 1 of an ongoing explainer series on how federal litigation works. Jump to Part 2 here.

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