There’s been a lot litigation over emergency orders and gun rights in the weeks since we’ve last tackled the issues on this blog. A lot of that litigation dropped off as states that faced the initial wave of lawsuits, like Pennsylvania and New Jersey, modified their orders without any court direction. In fact, Pennsylvania changed its law after prevailing in the state Supreme Court. The new round of lawsuits seem to be grouped into a few categories: (1) gun store closures, and (2) permitting & licensing delays. Below, I look at some exemplars in each category and highlight the open cases. (Many thanks to @2Aupdates for the useful resource Gun Case Tracker that allows following these cases in real time.)
Typifying the first category is Brandy v. Villanueva, a Second Amendment challenge in federal court to California’s policy of allowing local law enforcement to determine if gun shops can remain open as essential businesses and to LA County’s implementation of that policy to close gun stores. On April 6, the court denied the motion for a TRO to stop the policy, ruling that (1) as to the state, the motion was not ripe because the state has not shut down gun stores, and (2) as to the sheriff, the policy “reasonably fits the City’s and County’s stated objectives of reducing the spread of this disease” and therefore survives intermediate scrutiny. Notably, the court applied the ordinary two-part Second Amendment framework in reaching this conclusion. It did not alter the analysis or focus on any emergency needs or powers the state or local government might have in a pandemic.
Also in the first category—as detailed in the Gun Case Tracker—are 10 other challenges pending in federal court: two others in California, two each in New York, Massachusetts, and New Jersey (the latter of which may be soon resolved because gun stores are now deemed essential there), and one each in Virginia and New Mexico.
Typifying the second category is Stafford v. Baker, filed in North Carolina federal court, which challenges the Wake County sheriff’s announcement that he would postpone new applications for pistol purchase permits and concealed handgun permits. The plaintiffs charge that the delay strikes at the core of the Second Amendment. If the sheriff prevails, they contend, “this ban will persist for more than a month, all throughout which society everywhere is bound to remain in the very sort of calamitous state that brings the right to keep and bear arms to the forefront in securing the lawful defense of hearth and home.” There’s been no request for emergency relief yet in this case, and in a related state court lawsuit, the sheriff consented to resuming processing those applications.
Carter v. Kemp is another one in this second category. There, the plaintiffs challenge the effect of emergency orders on Georgia’s public carry license. The state ordinarily requires a license for publicly carrying a loaded handgun, but the probate judges who issue such permits are suspending the permit process temporarily. The plaintiffs recently filed an amended complaint. There’s at least one more carry case pending in Georgia federal court.
It’s possible that, in the weeks to come, compromises will be worked out among the parties that obviate the need for courts to weigh in on contested Second Amendment questions. But given the length that stay-at-home orders may be extended, and the rapidity with which other orders are being challenged (e.g., in the abortion context), we may soon see federal circuits or even the Supreme Court creating a framework for deciding constitutional questions in the midst of a global health crisis.