Are Gun Shops An Essential Business? Depends Where You Live
Governors of several states have closed gun shops and dealers as part of their orders shuttering “non-essential” businesses to the public in the midst of the coronavirus pandemic, drawing the ire and legal firepower of gun rights groups. Adding to the confusion, businesses selling firearms are exempted from these orders in states like Connecticut, Ohio and Illinois.
In at least two states, lawsuits have been filed on behalf of gun purchasers, who argue that guns and ammunition are “essential” and that the closure orders infringe on their Second Amendment rights. And this all comes as many gun shops around the country experience a spike in sales amid coronavirus worries.
Differing Directives On Gun Stores
The decision to shutter gun stores and dealers has so far varied from state to state. Some public officials have chosen to designate gun shops and dealers as “essential businesses” and therefore exempt from closure orders. Others have left them off the list, creating ambiguity about their status or implying they cannot remain open.
So far, there doesn’t seem to be a political motivation behind the orders and who gets labeled “essential.” Some Democratic governors, for example, have designated firearms dealers “essential,” while others have not included them.
Here’s a summary of what has happened in various places around the country over the past couple of weeks:
In California, Democratic Gov. Gavin Newsom issued an order temporarily closing all “non-essential” businesses in the state, which includes gun shops and dealers. Some gun stores have remained open despite the order, which has recently drawn the attention of law enforcement.
In New Jersey,Democratic Gov. Phil Murphy issued an executive order on March 21 that temporarily closed all “non-essential retail businesses.” Gun shops are not included in his list of exempted businesses. The state police have also shut down the gun background check system, effectively barring most firearms purchases in that state.
New York’s Democratic Gov. Andrew Cuomo’s list of “essential businesses or entities” that can stay open does not include guns shops or dealers.
And in Pennsylvania,Democratic Gov. Tom Wolf ordered the closure of all businesses in the state that “were not life-sustaining” on March 19. This included gun shops and dealers. But then on March 24, following dissenting opinions from three PA Supreme Court justices, the governor updated his list of “life sustaining businesses” exempt from the original order to include licensed firearms dealers.
Attorney Adam Kraut represented plaintiffs in the Pennsylvania lawsuit and is the director of legal strategy for the gun rights group the Firearms Policy Coalition.
“If you’re closing off the mechanism where people can obtain arms,” Kraut said, “they can’t exercise the constitutional right [to bear arms] — particularly those that don’t have any arms to begin with.”
Three states, including two led by Democratic governors, have taken a different approach. In Illinois, Democratic Gov. J.B. Pritzker included gun shops and dealers as “essential businesses and operations” in his March 21 order, drawing praise from some gun rights groups. In a similar move, Connecticut’sDemocratic governor Ned Lamont also exempted gun shops from his executive order. So did OhioRepublican Gov. Mike DeWine in the order he issued.
In Rhode Island, Democratic Gov. Gina Raimondo has so far allowed gun shops to remain open but has closed all recreational facilities, including shooting ranges. That has drawn criticism from some gun rights advocates.
And emergency orders from public officials have not been confined to temporarily closing gun shops and dealers. Applications for pistol and concealed-carry permits have also been temporarily suspended in at least one North Carolina county due to “surging demand” related to the coronavirus. And there are reports of permit suspensions in some Ohio counties as well.
Law professor Jake Charles, who directs the Center for Firearms Law at Duke University, isn’t surprised by the disparate orders on “essential services” amid the rush to address the coronavirus emergency, particularly in the cases of Pennsylvania and New Jersey.
“It’s not clear to me that those were express decisions that gun stores were not essential as opposed to just, ‘Here’s a list of essential businesses and everything else is not.’ And gun stores fell into the ‘everything that is not,’” Charles said.
Along with the lawsuit filed in Pennsylvania, a gun retailer and advocacy group in New Jersey have sued in federal court, arguing that Gov. Phil Murphy’s executive order, which closes gun stores and shuts down the state’s background check system, violates the Second Amendment rights of gun purchasers:
“By their terms, these acts stand as a perpetual bar on firearms ownership,” the lawsuit says.
In addition to lawsuits, some gun rights groups are lobbying federal agencies to address this issue. Mark Oliva, public affairs director for the National Shooting Sports Foundation, says his organization has requested the White House and Department of Homeland Security designate the whole firearms industry as “national critical infrastructure” and is also advocating at the state and local level for gun dealers to be exempt from closure orders.
“A majority of small police departments rely on small firearms dealers to supply them with guns and ammunition and [if they have to close] this matters for public safety,” Oliva said.
What Happens Next
Legal experts like Duke’s Jake Charles think these executive orders raise legitimate constitutional questions even as they are issued during a public health crisis.
“You have a constitutional right to peaceably assemble under the First Amendment. Orders that don’t let you peaceably assemble in groups of more than 10, that can raise First Amendment questions,” Charles said. “Same with the gun store laws, in my mind. Those can raise issues about the [Second Amendment] right to keep and bear arms.”
Charles sees the New Jersey case as one to watch, mostly because it’s being heard in federal court.
“State courts are going to be deferential to state leadership in the midst of a crisis,” he said, “and federal courts might view actions more skeptically or be more protective [of constitutional rights] in situations like this.”
It’s even possible one of these cases could attract the attention of the U.S. Supreme Court, depending on how long the public health crisis persists and what lower courts decide.
“It wasn’t until 2008 when the [Supreme] Court really said there was an individual [Second Amendment] right that’s enforceable in court,” Charles said. “So, we might be seeing the development of a new body of law here — what does the Second Amendment look like in times of crisis?”
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