A federal judge on Tuesday denied a request to force Ventura County, Calif., to reopen gun stores forced to close in response to the coronavirus.
Judge Consuelo B. Marshall, a Jimmy Carter appointee, of the District Court for the Central District of California, said she would not grant a temporary restraining order against the county's shutdown order. Her decision is one of the first in the legal battle over pandemic-related closures of gun businesses. It may indicate the court fights could drag on for weeks and produce mixed results even as Americans buy guns for self-protection at a record pace.
"While the public interest is served by protecting Second Amendment rights, the public interest is also served by protecting the public health by limiting the spread of a virulent disease," Marshall said in a ruling.
Marshall's ruling is one of at least three legal opinions that have come out in the wake of the outbreak, though state and federal courts have disagreed about the extent to which the Second Amendment protects against emergency closures. The Pennsylvania Supreme Court allowed Gov. Tom Wolf (D.) to include stores in his shutdown—though the governor later reversed course. Meanwhile, a North Carolina court ordered Wake County sheriff Gerald Baker (D.) to abide by an agreement that reopens the pistol-purchase permitting process in the county.
Gun-rights activists have been able to convince most jurisdictions to allow gun businesses to remain open during emergency shutdowns using a combination of lobbying and lawsuits. On Saturday, the Department of Homeland Security updated its nonbinding guidance to add gun manufacturers, stores, and ranges to the list of "essential" businesses. While a dozen states and the federal government had originally left gun businesses off of their "essential" business lists, a number of states, including Pennsylvania, New Jersey, and Delaware, reversed course on their gun-store shutdowns over the past 10 days.
Massachusetts is the only state to move in the other direction when it revised its "essential" business list to exclude gun stores on Wednesday, effectively cutting off most legal gun sales in the state.
Judge Marshall said Ventura County's shutdown order was not as "sweeping" as the ban on handgun sales at issue in the landmark Supreme Court case District of Columbia v. Heller (2008) and should, therefore, be subject to a less rigorous judicial test for constitutionality.
"The County Order does not specifically target handgun ownership, does not prohibit the ownership of a handgun outright, and is temporary," she said. "Therefore, the burden of the County Order on the Second Amendment, if any, is not substantial, so intermediate scrutiny is appropriate."
She went on to argue that the plaintiff in the case did not provide evidence that the coronavirus-shutdowns would be as effective if they exempted gun stores.
"Plaintiff does not dispute that mitigation of the spread of the COVID-19 virus is a compelling interest but offers no evidence or argument disputing the County's determination that its mitigation effort would be as effective without closure of nonessential businesses," Judge Marshall said. "Plaintiff has not demonstrated he is likely to succeed on the merits of his claim."
The suit, filed by a firearms instructor and gun-rights activists living in the county, was separate from a suit filed by the nation's leading gun-rights groups. The Second Amendment Foundation, which partnered with the National Rifle Association and Firearms Policy Coalition to bring a suit against the Los Angeles County sheriff and California governor, said the organization believes its challenge is better suited to win and is continuing to move forward.
"Our lawsuits are moving ahead and we expect to win," Alan Gottlieb, founder of the Second Amendment Foundation, told the Washington Free Beacon.