As a growing number of governors issue orders to shut down all “non-essential” businesses, firearm retailers and Americans hoping to pick up a firearm or ammunition to protect themselves and their families from any potential unrest are increasingly being told that gun stores must close their doors for an unspecified period of time. California, Pennsylvania, and New York have all now issued what amounts to “shelter in place” orders for the vast majority of residents, and elected officials are vowing to ensure compliance.
When will we see lawsuits filed challenging these orders? Based on several conversations I’ve had with attorneys and individuals in the 2A community, the disappointing answer seems to be “not very soon.” None of the individuals I spoke to on background sounded eager to institute litigation at the moment, though I heard a number of different reasons why.
Some feel that any lawsuit filed now would be either doomed to failure or would languish in the courts during the outbreak, while others are concerned about not being able to adequately fund the litigation while a global recession is breaking out.
It is true that most courts around the country are now operating under emergency rules of their own, and I suspect that federal judges would likely give broad leeway to governors that have declared gun stores aren’t essential businesses. The three states most vulnerable to a challenge at the moment are California, New York, and Pennsylvania, and unfortunately we’ve seen some pretty bad decisions come out of the circuit courts of appeals for all three states; the 9th, 2nd, and 3rd Circuit Courts have all upheld some pretty egregious violations of our right to keep and bear arms in the past.
That’s not to say that individuals and organizations are doing nothing. Many are reaching out to local law enforcement to stress the need to keep gun stores open, and we could see some law enforcement in more rural areas of these states either expressly allow for gun stores to keep their doors open, or turn a blind eye as long as stores are engaging in social distancing and other behaviors to limit the spread of the coronavirus.
In other words, I don’t think there’ll be a uniform response to any of these orders to close. If President Trump were to issue an order for a nationwide shutdown, that would almost certainly produce a backlash, along with attempted court challenges and acts of civil disobedience.
Of course, if firearm and ammunition manufacturers are forced to close as well, we wouldn’t expect gun stores to remain open for long. Right now the supply chain is intact, though it’s not able to meet the incredible consumer demand. Any break in the chain, however, and it’s going to quickly become nearly impossible to acquire a new firearm or a box of ammunition even if your local stores are open.
As much as I’d love to see a lawsuit filed over what’s happening in states like California, New York, and Pennsylvania, the sad truth is that in a few days we may have a much stronger case. Right now we have a handful of states that are suspending commercial sales of firearms and ammunition. We could, however see action taken nationwide to hit the pause button on gun sales, and if that happens not only would the constitutional stakes be raised significantly, but plaintiffs would have their choice of venue to file suit, instead of hoping that a hostile court like the 9th Circuit would throw the Second Amendment a lifeline.
It’s also important to note that none of the restrictions have said anything about firearms that are currently possessed. Even in California, if you have a concealed carry license and you have a valid reason to leave your home, you can carry. A restriction that implicates the actual keeping and bearing of currently possessed arms would also be a stronger case at the moment than one dealing with the right to acquire a firearm, though morally I think they’re of equal importance.
So, stay tuned, because while it looks like we might not see any lawsuits filed over the current restrictions in California, New York, and Pennsylvania, the rapidly changing events on the ground could lead to some rapidly-filed litigation if these restrictions spread.
Events are changing so rapidly, as it turns out, that seconds after I hit publish on this story attorney Joshua Prince in Pennsylvania announced a lawsuit against Pennsylvania Gov. Tom Wolf and his order regarding the closure of “non-life sustaining” businesses.
We’ll have more on this lawsuit later today.