The recent spate of emergency declarations across the country has raised some difficult Second Amendment questions. In some states, governors have required all “non-essential” or “non-life sustaining” businesses to close up altogether or to at least close the inside of the store to customers (while still permitting, e.g., curbside pick-up). These laws can raise constitutional concerns when applied to gun stores. Of course, the government’s interest is at its zenith in emergency situations, and the state’s broad police powers can alter the calculus that gets applied in calmer times. For example, individuals have a constitutional right to peaceably assemble in groups of more than ten people, but when public health requires keeping such groups smaller for a temporary period of time, does the First Amendment still bar such an order? We could similarly ask whether the Second Amendment poses a hurdle to temporary measures to protect the public health in times of emergencies by shutting down gun stores.
These types of shutdown orders raise several different questions, depending on the state. Because firearms are mostly regulated at the state level, local variations can mean that even identical emergency declarations can result in quite divergent consequences in different states. Consider two state regulatory questions that bear heavily on how large an impact a gun-store shutdown is likely to have.
- First, some states have expanded the requirement for background checks before any gun sales. Under federal law, only transfers by Federal Firearms Licensees (FFLs)—like gun shops—require a background check. But 21 states and D.C. require that even in sales between some private parties, like from one friend to another, the buyer must undergo a background check. This background check typically happens at an FFL. So if FFLs are closed, even private transfers cannot take place in these jurisdictions, unless state law provides an alternative mechanism.
- Second, 12 states are full “Point of Contact” (POC) states for purposes of background checks, which means that the state, rather that the FBI, runs the background check for all gun sales that require such a check. If the state is not processing background checks during the crisis, then transfers become much more difficult, if not impossible, in these places.
The challenges to the shutdown orders can take several different forms. One preliminary question, though, is whether gun stores—or those who want to sell guns—have a Second Amendment right at all. Our own Darrell Miller has written on the theoretical issues confronting the notion of corporate Second Amendment rights in his prescient 2011 article, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights. In a 2017 Second Amendment challenge to a local zoning ordinance, the en banc Ninth Circuit held that “the Constitution does not confer a freestanding right on commercial proprietors to sell firearms.” The Seventh Circuit, by contrast, suggested that in a challenge to a local ordinance banning firearm ranges, that commercial entities do have such a right: “Action Target, a supplier of firing‐range facilities, is harmed by the firing‐range ban and is also permitted to act as an advocate of the rights of third parties who seek access to its services.” (cleaned up). (Another district court in the Seventh Circuit also allowed a gun shop’s claim to go forward and stated that “Defendants have not presented the Court with any persuasive authority as to why Second Amendment protections should not extend to businesses.”) Issues of third-party standing, a point of dispute in the recent June Medical case concerning abortion restrictions, are fraught and difficult. In any case, only one plaintiff needs standing for federal jurisdiction, and it seems highly probable that individuals who wish to purchase guns but cannot will be able to join a lawsuit. Indeed, in the two current challenges discussed below, individuals were joined as well.
Assuming a court reaches the merits, I can foresee several Second Amendment questions. First, how, if at all, is the Second Amendment right to keep and bear arms affected? This question might turn on, e.g., whether a state requires a background check for all transfers, whether it requires those to be run by FFLs, and whether (if it is a POC state) its processing of background-check requests is affected. Opponents will want to frame these regulations as a “ban,” whereas proponents will emphasize their temporary nature. Second, depending on the burden, courts will look to how closely tailored the regulation is to meet the government’s interest. Does the government have good reason, for example, to exempt some type of businesses from the closure order as “essential,” but not gun stores?
In a 2012 case arising out of North Carolina, a federal district court entertained a related challenge. It is one of the only cases in the post-Heller era of which I’m aware that a court confronted an emergency regulation surrounding firearms. The law there was drastic—much more so than the general orders in most state right now. That law made it a crime for any person to “transport or possess off his own premises any dangerous weapon or substance in any area” in which a state of emergency had been declared by state or local authorities. The court held that the law severely restricted the Second Amendment right and was thus subject to strict scrutiny. The law did not, for instance, even permit one to purchase a firearm at a gun store and transport it home. The court struck the law down as unconstitutional because it was not narrowly tailored: it did “not target dangerous individuals or dangerous conduct” nor did it “seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times.”
Let’s look now at a few of the current challenges. The first, the challenge in Pennsylvania, is what I expect a lot of the run-of-the-mill challenges look like. As Josh Blackman chronicles on the Volokh Conspiracy blog, the challenge centered on the governor’s order closing all “non-life-sustaining businesses” in the state. A gun shop, a prospective gun purchaser, and a gun rights organization sued, claiming that the governor lacked the power to enter the order and that the order violated their constitutional rights, including their rights to keep and bear arms. Without explaining why, the Pennsylvania Supreme Court rejected the constitutional challenges. Three justices, however, dissented. As Justice Wecht wrote for these justices, “the inability of licensed firearm dealers to conduct any physical operations amounts to a complete prohibition upon the retail sale of firearms—an activity in which the citizens of this Commonwealth recently have been engaging on a large scale, and one guaranteed by both the United States Constitution and the Constitution of this Commonwealth.” Justice Wecht did not think that a blanket exemption for gun shops was necessary, but that some accommodation—like “limit[ing] the patronage of firearm retailers to the completion of the portions of a transfer that must be conducted in-person”—would be necessary for the order to be constitutional. Blackman suggests that the U.S. Supreme Court might be asked to review the case and find it an appealing opportunity to issue a narrow opinion re-affirming the fundamentality of the Second Amendment right.
Another brewing challenge was recently filed in federal court in New Jersey. Here, the challenge is slightly different than in Pennsylvania. As in Pennsylvania, the New Jersey order shuttering businesses does not exempt gun dealers, but the New Jersey authorities have also expressly closed the background-check process. After the governor’s order, “the Division of State Police posted a notice on the background check portal of its website indicating that the State Police would no longer conduct background checks.” As a result, “[s]ince the end of March 21, 2020, it has been impossible to submit a background check to the Division of State Police for approval.” As one of the 12 POC states (like Pennsylvania), this means that New Jersey has affirmatively chosen to cut off citizen’s ability to make firearm purchases in the state. The New Jersey suit, like the Pennsylvania one, is brought by a gun shop, a prospective gun purchaser, and two gun rights organizations. (The challengers do not, so far at least, ask for emergency relief, as did the Pennsylvania plaintiffs.) That challenge is still pending.
These challenges are likely to put judges in a difficult position of second guessing emergency orders issued in the midst of a worldwide pandemic. But, as the complaint in the New Jersey case notes, “this emergency (like any other emergency) has its constitutional limits.” What those limits are may be hard to establish.
In the next post in this series, I’ll look at the Disaster Recovery Personal Protection Act (embedded as the Vitter Amendment to a DHS appropriations bill), which is not implicated in these cases, but has overtones in cases of emergency. It prohibits any federal officer, official acting under color of federal law “or other person, while acting in support of relief from a major disaster or emergency,” from confiscating lawfully owned firearms, requiring registration of such firearms, or prohibiting lawful firearm carrying “solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.” The law was occasioned by gun confiscation orders in New Orleans in the aftermath of Hurricane Katrina.