SCOTUS Gun Watch – Week of 4/20/20

We continue to have quiet on the Court’s gun docket, but it did issue three other opinions this week and announced that it may issue more on Thursday, so the Court’s active.

Today the Court also asked for a response in Rodriguez v. San Jose, which challenges a warrantless search/seizure of firearms. “A Supreme Court ‘call for response’ signals that someone at the high court is interested in a case, and Bloomberg Law research shows that it slightly increases the likelihood that the case will get granted.” Although the odds of a cert grant are always low, this research showed that cert is 5 times more likely to be granted after a call for response. We’ll be watching that one, which has been distributed for the April 24 conference, but will likely be held for the response due next month.

Covid Gun Litigation Roundup

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.)

NYSRPA & COVID-19

The Covid-19 pandemic is altering the legal landscape. Emergency orders in many states are facing mounting pressure from civil libertarians and interested litigants. One challenge went all the way to the Supreme Court, but was defused before the justices had to weigh in. There’s no doubt that the Supreme Court’s operations are affected by the virus; it’s already extended briefing deadlines and announced plans to hold arguments telephonically. I wonder if the Court’s jurisprudence might be affected too. Will or should the Court take into account what’s been happening across the country as it decides important constitutional questions in the cases already argued this Term? What affect, if any, might Covid play in the Court’s consideration of New York State Rifle & Pistol Association?

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?

Guns in Emergencies: The Disaster Recovery Personal Protection Act

Earlier this week, I wrote about Second Amendment concerns that arise with emergency declarations that shut down non-essential businesses, including, in some states, gun stores. Showing how quickly these issues are moving, in the past few days there have already been changes in states and localities that have excluded guns from the list of essential businesses. For example, even after winning the lawsuit that kept gun stores shuttered, Pennsylvania modified its closure order: “Firearms dealers may now sell their wares by individual appointment during limited hours as long as they comply with social distancing guidelines and take other measures to protect employees and customers from the coronavirus.” In Los Angeles County, the sheriff declared that gun stores “are nonessential businesses and will have to close their doors amid coronavirus restrictions.” But just hours later, the county attorney concluded that such businesses are essential, presumably halting enforcement of the sheriff’s declaration.

It’s fair to say there’s confusion on the ground as state and local resources, including law enforcement resources, are stretched thin and public officials scramble for the best way to protect the public amidst a global crisis. New Jersey, as of this writing, is still defending its exclusion of gun stores as essential business. In my own backyard, the Wake County Sheriff’s Office has said it will “suspend pistol and concealed-carry permit applications until April 30 as demand surges amid the coronavirus outbreak.”

The rest of this post will focus on a different issue that arises in emergencies—orders that directly regulate firearm possession or carrying.

Emergency Declarations, Gun Dealers, and the Second Amendment

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.

SCOTUS Gun Watch – Week of 3/23/20

The Court released five opinions today, including one per curiam. But no news yet on NYSRPA and no new cert grants in other Second Amendment cases. The Court’s activity level suggests that things aren’t slowing down at 1 First Street for the coronavirus. I suspect we’ll be hearing something on these cases soon, but that’s been my (as yet wrong) prediction for the last few months.