SOUTER, Associate Justice.
A Massachusetts regulation makes it "an unfair or deceptive practice," and thus a violation of state law, "for a handgun-purveyor to transfer or offer to transfer to any customer located within the Commonwealth any handgun which does not contain a load indicator or magazine safety disconnect." 940 Mass. Code Regs. 16.05(3). Under the state Attorney General's regulatory definition, a "load indicator" is "a device which plainly indicates that a
In response to enquiries, the Attorney General (defendant-appellee here) informed various firearms dealers and consumers that Glock, Inc.'s third and fourth generations pistols lack an adequate load indicator. Some dealers and consumers, joined by two advocacy groups, brought a pre-enforcement action under 42 U.S.C. § 1983 challenging the constitutionality of the load indicator requirement as being unenforceably vague in violation of Fourteenth Amendment due process; the consumers added a complementary claim that the requirement violates the Second Amendment by preventing them from purchasing third and fourth generations Glocks.
The district court granted the AG's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). It determined that the two advocacy groups lacked standing and that the dealers and consumers failed to state a claim subject to relief. The dealers, consumers, and one of the advocacy groups appealed. We review the grant of the motion to dismiss
To begin with, the advocacy group, Second Amendment Foundation, Inc., lacks standing to sue. It seeks to assert associational standing on behalf of its members, which requires, among other things, that at least one of the group's members have standing as an individual.
Here, the complaint did not identify any member of the group whom the regulation prevented from selling or purchasing a Glock. The group submitted an affidavit asserting that many of its members asked it to take legal action challenging the regulation, but the Supreme Court has said that an affidavit provided by an association to establish standing is insufficient unless it names an injured individual.
The advocacy group says that it was premature to dismiss it from the action at the pleading stage, before discovery had commenced. But "where standing is at issue, heightened specificity is obligatory at the pleading stage.... The complainant must set forth reasonably definite factual allegations, either direct or inferential, regarding each material element needed to sustain standing."
We now turn to the dealers' claim that the load indicator requirement is vague in violation of due process, a constitutional claim eligible only for as-applied, not facial, review.
Here, the dealers, who were informed that the AG took the position that the Glocks violated the regulation, take aim at the phrase "plainly indicates" in the definition of load indicator: "a device which plainly indicates that a cartridge is in the firing chamber." But this definition provides anyone of ordinary intelligence fair notice that what is required is a readily perceptible signal that a loaded gun is loaded. Indeed, the phrase "plainly indicates" offers just as much notice as others we have upheld against vagueness challenges.
Perhaps it is a sense of the weakness of their position that leads the dealers to argue, in effect, that fair notice requires the Commonwealth to provide something approaching a design specification: if the Commonwealth wishes to require load indicators that "indicate plainly," the Commonwealth ought to supply the industry with a graphic plan or blueprint. But if due process demanded any such how-to guide, swaths of the United States Code, to say nothing of state statute books, would be vulnerable.
That leaves the consumers' Second Amendment claim, which they stipulate is "derivative" of the dealers' claim of a due process violation. It is not clear what a "derivative" Second Amendment claim might be, but we accept the consumers' stipulation as conceding that dismissal of
AFFIRMED.