Waiting to Exercise A Fundamental Right

Brian Frye & Maybell Romero’s new (and endearing) draft, The Right to Unmarry: A Proposal, argues that, “waiting periods, even if well-intended, place a substantial burden on the right to unmarry in a paternalistic and infantilizing fashion.” Similar arguments are made about waiting periods to purchase firearms, though courts have upheld them against Second Amendment challenge. And, in Planned Parenthood v. Casey, of course, the Supreme Court upheld a waiting period for abortion. The questions these laws prompt are difficult enough in ordinary times, but what about in a pandemic? Courthouses may process marriage or dissolution paperwork more slowly, law enforcement may find itself unable to timely complete background checks required for firearm transfers, and states may want to limit non-essential medical procedures, like some abortions, ostensibly to conserve healthcare resources. The Fifth Circuit recently upheld Texas’s power to delay abortions in the midst of the pandemic. (As I’m writing this, the district court has entered a new, narrower order halting the Texas delay.) What effect might the Fifth Circuit’s reasoning have on gun store closure orders?

In upholding Texas’s authority to regulate, the Fifth Circuit repeatedly rejected the dissenting judge’s, and the district court’s, characterization of the order as a “ban.” The order does not prohibit abortions, but instead “only delays certain non-essential abortions.” The existence of an expiration date in the order “makes [it] a delay, not a ban, and also shows [the order] is reasonably tailored to the present crisis.” Nor did the order treat abortion differently. “The order is a concededly valid public health measure that applies to ‘all surgeries and procedures,’ does not single out abortion, and merely has the effect of delaying certain nonessential abortions.” Of course, time is of the essence in the right to terminate a pregnancy more clearly than, in normal circumstances, with the right to marriage or the right to keep and bear arms. Although it recognized as much, the Fifth Circuit did not think that factor or any other required exempting the exercise of a constitutional right from an otherwise temporary order issued in the midst of an emergency.

The Fifth Circuit in fact noted that lots of rights were affected in this national emergency. Invoking a 115-year old Supreme Court opinion, the court faulted the district court for ignoring that “framework governing emergency public health measures” pursuant to which “constitutional rights may be reasonably restricted as the safety of the general public may demand.” According to the court, “[t]hat settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception.” One constitutional right was missing from the Fifth Circuit’s list: the right to keep and bear arms.

States and local governments that required all non-essential businesses to close have also been facing constitutional challenges with respect to gun stores (see this pair of recently filed suits in Massachusetts). As we’ve written about on this blog (here, here, here, here, and here) and discussed over video (here), many of the same responses the Fifth Circuit gave can be applied here. Gun stores are not singled out in these orders for any different treatment than other retailers. The orders do not ban or prohibit Second Amendment activity but, akin to a waiting period, impose some delay on the exercise of Second Amendment commerce. There are some differences with abortion, of course. Closing gun shops does not affect at all the legality or validity of use, possession, or carrying of firearms. Those are controlled by background state laws that so far have been untouched by emergency orders.

With some gun store closure orders still being litigated, we’ll watch to see how the Fifth Circuit’s opinion may influence the judges deciding those cases.