NRPLUS MEMBER ARTICLE I n order for the Second Amendment right to keep and bear arms to remain meaningful, law-abiding citizens must have the ability to acquire a firearm — even during a pandemic. In fact, the right to self-defense is especially vital during national emergencies, when police forces may have additional responsibilities or limitations that make it harder for them to respond to every call for help. Americans have recognized the gravity of the current situation; firearm sales have skyrocketed since the crisis began. Unfortunately, a small minority of states and localities — supported by gun-control advocates — have sought to deny Americans their right of self-protection by closing gun stores, effectively preventing non-gun-owners from acquiring a firearm. These measures are unconstitutional and must be reversed.
The COVID-19 pandemic caused by the novel coronavirus has created an unprecedented national public-health emergency. Many states and localities have taken dramatic action to mitigate COVID-19’s spread. These emergency orders — including requiring non-essential businesses to close — have imposed restrictions on citizens’ liberties and disrupted daily life. Some of these temporary restraints are likely constitutionally permissible given the severity of the pandemic. However, even during a crisis, the government cannot completely ignore citizens’ fundamental rights.
As the Supreme Court recognized in its landmark Heller decision, the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Therefore, the Second Amendment “necessarily takes certain policy choices off the table.” A federal appellate court recognized that one such “untenable” policy choice is “prohibiting the commercial sale of firearms.” The Second Amendment must protect, at a minimum, the right of law-abiding citizens to acquire at least some firearm for use in the home for self-defense.
A government regulation entirely preventing citizens from obtaining firearms during this time of national crisis therefore would strike at the heart of the Second Amendment’s protection. This is not to say that states are prohibited from taking steps to ensure that citizens engage in “social distancing” or other reasonable measures while purchasing firearms. But, even accepting such measured policies as permissible, the pandemic cannot justify completely stripping Americans of their Second Amendment rights. In fact, it is precisely in times of social upheaval that the fundamental right to engage in armed self-defense is most necessary.
The effects of the COVID-19 pandemic and America’s response to it demonstrate why the current need for armed self-defense is so acute. For example, responding to the pandemic will lead to potentially unprecedented strains on police departments’ resources and staffing. These limitations already have led to reduced police response to certain crimes and to announcements that some criminal laws simply will not be enforced until conditions improve. In Philadelphia, for example, the police have announced that they will delay arrests for crimes including drug offenses, theft, and prostitution.
In addition to the additional strains caused by responding to the virus, police forces may be further hampered as officers contract the virus. Police officers’ heroic willingness to put themselves in harm’s way unfortunately means that they are at high risk of infection. As of late March, over 1,000 NYPD officers had tested positive for the disease. And to make matters more dangerous, at least 16 states — including California, New Jersey, New York, Ohio, and Texas — have released thousands of inmates into the public in order to avoid making prisons an incubator for COVID-19. Such a policy may well slow the spread of the disease, but it likely exposes innocent citizens to at least some additional danger of victimization. It therefore is not surprising that the United States Department of Homeland Security recently classified employees of firearm retailers as “essential critical infrastructure workers.”
Law-abiding Americans have noticed these potential disruptions of police protections and threats to their safety. Gun sales are surging in many states, with sellers reporting an uptick in first-time buyers. Federal background checks have increased by at least 36 percent, to a pace virtually unmatched since the FBI started performing the checks in the late 1990s. Many individuals who had previously concluded that they did not need firearms to defend their homes have determined that, given new circumstances, they must exercise the fundamental right of armed self-defense. The pandemic cannot justify entirely eliminating that right at the peak of its importance.
And yet, some states and localities — including New Jersey, Pennsylvania, Massachusetts, New York, and certain counties in California — have attempted to shut down all firearm retailers within their borders. They have done so by ordering all “non-essential” retail businesses to close and then deeming firearm retailers “non-essential.” While some jurisdictions including Pennsylvania and New Jersey have lifted these prohibitions after facing a backlash, not all have, and the threat they represent to the Second Amendment remains substantial.
Recently, Everytown for Gun Safety (“Everytown”), an organization dedicated to gutting the Second Amendment and financed in large part by failed presidential candidate Michael Bloomberg, has circulated a document addressed to “State and Local Officials Responsible for Promulgating and Enforcing COVID-19 Emergency Closure Orders.” Everytown argues that such officials can order the closure of every gun retailer within their borders without running afoul of the Second Amendment. Their argument is meritless.
Everytown asserts that closure orders are constitutional because they are not “specifically targeted at guns or gun stores.” According to Everytown, even if closure orders burden individuals’ constitutional rights by shutting down places such as houses of worship, political rallies, or gun stores, they are immune from legal challenge so long as they are universally applied and do not target constitutionally protected activities.
This argument is wrong on several levels. It simply is not true that so long as a law is “generally applicable,” it can obliterate fundamental constitutional protections. The Second Amendment is not merely an anti-discrimination provision; it affirmatively protects the fundamental right to self-defense, and states cannot engage in games to avoid its protections. Additionally, the closure orders are not truly generally applicable because they contain numerous exceptions — such as allowing liquor stores to remain open while requiring all gun stores to close.
In support of its position, Everytown points to a Supreme Court decision, Alcara v. Cloud Books, which allowed New York to shut down an adult bookstore because prostitution occurred on the premises. Everytown argues that, because New York could shut down a bookstore that engaged in First Amendment–protected speech for reasons unrelated to restricting speech, states can shut down every gun store within their borders so long as the reason is unrelated to restricting gun ownership. This argument is absurd on its face, but a closer inspection of the case relied on by Everytown suggests that it actually undermines the organization’s argument.
First, the Supreme Court held that New York could shut down a single bookstore, not every bookstore in the state. The court noted that the burdens to free speech that stemmed from closing a bookstore were minimal because the owners “remain free to sell the same materials at another location.” It may well be the case that a state could shut down a single gun store that refused to comply with reasonable social-distancing requirements, but shutting down all gun stores is another matter entirely.
Second, the Supreme Court noted that even a generally applicable law that placed a disproportionate burden on constitutionally protected activity would likely be unconstitutional. In New York, prostitution was not prohibited in bookstores but permitted at other public locations. However, that is exactly what is happening in states that are forcing gun stores to close while allowing grocery stores, liquor stores, and marijuana shops to remain open. Those states are making the affirmative decisions that gun stores are “non-essential” and therefore must be shut down while other stores can remain open. The Constitution prohibits the determination that liquor stores are more “essential” than the fundamental right to self-defense.
Some governors have honestly admitted that their closure laws rely on a view inconsistent with the Second Amendment as the basis of their treatment of gun stores. For instance, when asked why firearm retailers had not been deemed “essential” in New Jersey, Governor Phil Murphy admitted to his real motivation: “A safer society for my taste has fewer guns and not more guns.” The Second Amendment prohibits the governor of New Jersey from substituting his “taste” regarding the importance of the fundamental right to self-defense for the protection enshrined in the Constitution.
Finally in the Cloud Books case, the court recognized that the prohibited activity — prostitution — bore “absolutely no connection” to any constitutionally protected activity. But the conduct restricted by COVID-19 closure orders, selling firearms, is inseparable from the right of self-defense protected by the Second Amendment. As numerous courts have recognized, if the right to possess a firearm for self-defense is to have any meaning, it necessarily must also include the right to acquire a firearm. And it is also why a North Carolina district court held that a law forbidding “the sale or purchase of firearms and ammunition” during a state of emergency struck “at the very core of the Second Amendment,” and could not stand even if it were “limited in duration.”
COVID-19 business-closure laws — if applied to all firearm retailers — would significantly burden law-abiding citizens’ fundamental constitutional rights to acquire and use firearms for self-defense. Such a law would amount to a flat ban on commercial firearms purchases remarkably akin to the ban on handguns in the home that the Supreme Court in Heller invalidated as a per se violation of the Second Amendment.
Such a complete ban bears no similarity to shutting a single bookstore as was allowed in the Cloud Books case. First, in Cloud Books the Supreme Court allowed for the closure of one bookstore and not all bookstores. Additionally, even if the Supreme Court were to allow for the closure of all brick-and-mortar bookstores, books — and virtually every other consumer good — could still be acquired over the Internet. The same cannot be said of firearms. Federal law requires all sales of firearms from licensed dealers to take place “in person at the licensee’s business premises.” As one Pennsylvania justice recently explained, “Unlike the vast majority of other items, the sale and transfer of firearms sold at retail cannot be completed merely by way of telecommunication and mailing under existing law.”
This is not to say that gun stores are immune from any regulation intended to protect the public from the spread of COVID-19. States might conclude that less intrusive measures are necessary to safeguard public health, similar to allowing restaurants to continue to sell takeout while prohibiting them from serving diners in the store. For example, states could (1) limit the number of people allowed in a firearm store simultaneously to maintain social distancing; or (2) mandate enhanced sanitizing procedures for retailers that remain open. The federal government has even confirmed that licensed firearm dealers may conduct firearm sales through a drive-up or walk-up window, further minimizing the in-person contact required to purchase a firearm. Any state would find it difficult to explain why these mitigation measures are sufficient to keep liquor stores in business — even though there is no constitutional right to a six-pack of beer — but not to keep open retailers whose activities are essential to the exercise of a fundamental right recognized in the text of the Constitution.
No matter what gun-control advocates claim, public-health emergencies such as the COVID-19 pandemic do not give governments carte blanche to trample on the constitutional rights of their citizens. Mandating the closure of all firearm retailers across an entire state or locality would do just that. State and local governments have a duty to protect their citizens from public-health emergencies, but the Constitution requires them to do so in ways that are respectful of those citizens’ fundamental rights.