Many states and localities are attempting to slow the spread of novel coronavirus through emergency shutdown orders that have effectively barred millions of Americans from legally purchasing guns.
While some states have deemed gun retailers "essential" and allowed them to remain open alongside grocery stores and medical supply companies, others have ordered shops to close. Some state governments have left the decision up to localities. A few areas have even shut gun stores down, only to reopen them again following public backlash and legal action.
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Shutdown orders in 12 states have prevented millions of Americans from legally purchasing new guns, even as demand for firearms, especially among first-time buyers, has soared in recent weeks. The shutdowns raise questions about the constitutionality of temporarily denying access to firearms, even in an emergency situation. The legal cases that have followed have the potential to set significant precedents on how much protection the Second Amendment and state constitutions provide to firearms sales, as well as the legal limitations of executive emergency power in the United States.
The National Shooting Sports Foundation (NSSF), the industry's trade group, has argued that gun dealers are constitutionally protected and provide a vital service. Larry Keane, the group's general counsel, recently asked the Department of Homeland Security to designate the industry as "essential" in the federal disaster response plan it provides to states. NSSF said strong federal action can convince state and local authorities to follow suit.
"I am also respectfully requesting that your agency designate the firearm and ammunition industry as a ‘National Critical Infrastructure Industry' and the employees who work in our industry should be clearly identified and listed as ‘Essential Critical Infrastructure Workers,'" Keane wrote. "While we are facing a different kind of war in combating an unprecedented public health crisis, it is imperative that we maintain a strong national defense and maintain public order."
In a resource for licensed gun dealers, NSSF said California, Delaware, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington have not given gun stores an "essential" designation in their shutdown orders. New Jersey Democratic governor Phil Murphy has gone a step further, shutting down not only gun stores but the state's background check system—a decision that has made it nearly impossible to purchase a gun in the state.
Other states have said gun stores will remain open even as they begin lockdowns to address the deadly pandemic. Arizona, Connecticut, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Ohio, West Virginia, and Wisconsin have deemed gun stores "essential" or specifically exempted them from their shutdowns.
Some government officials have waffled on the decision. The Los Angeles County Sheriff backtracked on shutting down gun stores after the county council intervened. Pennsylvania Democratic governor Tom Wolf reversed course to allow gun stores to stay open on a limited basis, even after the state Supreme Court denied a lawsuit from Second Amendment activists seeking to overturn a shutdown order.
Gun-rights groups are hoping to force more reversals. The National Rifle Association and NSSF have threatened to file suits against localities that close stores, while the Firearms Policy Coalition and Second Amendment Foundation (SAF) have already filed legal challenges. SAF founder Alan Gottlieb told the Washington Free Beacon his group has been "really busy" pursuing lawsuits in "Washington, California, Massachusetts, and North Carolina." The group already identified a plaintiff in Washington and filed a "show cause" motion in its federal case against New Jersey, according to Gottlieb.
Gov. Murphy said he was "comfortable" with listing gun stores as "nonessential" during an exchange with Alex Roubian, president of the New Jersey Second Amendment Society. New Jersey attorney general Gurbir Grewal (D.) added that the state would defend the order in court and falsely claimed every other state had denied gun stores the "essential" designation.
"The governor's executive order tracks every other executive order that has a stay-at-home provision and none of those—none of those—contain an exemption for firearm stores and nor does the federal guidance from Homeland Security contain that type of exemption when it comes to essential facilities and nonessential facilities," Grewal said.
The New Jersey Second Amendment Society has joined SAF to challenge the shutdown order. Gottlieb said gun stores welcome efforts to contain the virus but emphasized that shutting down access to firearms during uncertain times is unacceptable.
"Those who think suspending a constitutional right is acceptable because a virus is a health threat are truly mixing the proverbial apples and oranges to suit their own agendas," he said. "Gun dealers and their customers will do the right thing. Nobody is looking to make this situation worse. At the same time, citizens must be allowed to exercise their rights, especially during a national emergency."