The National Rifle Association is launching a lawsuit aimed at restoring the ability of gun store owners in New York to operate during the current coronavirus pandemic. The suit, filed in federal court, names Gov. Andrew Cuomo, the state’s Department of Economic Development, as well as its director Eric Gertler, and alleges the state is unconstitutionally preventing New Yorkers from acquiring firearms during the state of emergency, as well as jeopardizing the economic livelihoods of gun store owners.

The forced closure of gun stores throughout New York effectively makes it impossible to legally purchase guns in the State. Under New York’s SAFE Act,5 as of March 15, 2013, all private handgun, rifle or shotgun sales or transfers in New York (with the exception of those sales or transfers to and between certain family members) require a background check of the buyer. Therefore, consumers can only purchase firearms from federally licensed dealers capable of performing an NICS background check.

Almost all big box stores and non-specialized retailers in New York that typically sell firearms and ammunition stopped selling firearms and ammunition shortly before the issuance of the Executive Order. As is widely known, these retailers stopped selling firearms and ammunition in reaction to pressure from Defendants and other State authorities.

Therefore, immediately prior to enactment of the Executive Order, consumers wishing to exercise their Second Amendment right to purchase firearms or ammunition relied on licensed gun stores and dealers, substantially all of which have now shut down due to enforcement of the Executive Order. Through the enactment and enforcement of the Executive Order, Defendants have effectively deprived consumers in New York of any options for lawfully purchasing firearms or ammunition in the State.

New Yorks Attorney General Letitia James quickly reacted to the lawsuit on Twitter, and vowed an aggressive response.

Gun control advocates are chiming in as well, and of course they’re arguing that Cuomo was right to declare gun stores “non-essential,” despite the incontrovertible evidence that millions of Americans disagree and have flocked to gun stores across the country over the past month in order to exercise their right to keep and bear arms, many for the first time in their lives.

Kris Brown, the president of the pro-gun-control group Brady Campaign to Prevent Gun Violence, called the lawsuit “another attempt by the NRA to jeopardize life-saving responses to stop the spread of this deadly virus that is killing thousands of New Yorkers.”
She said Cuomo is “well within his authority” to close the stores in an effort to address the virus’s spread.
“The Second Amendment, like all amendments in the Bill of Rights, is balanced by concerns of public safety and health,” she added. “Right now, those concerns necessitate the closure of many businesses, including the need to forbid large gatherings, which are rights otherwise protected by the First Amendment. The Second Amendment does not supersede the First, nor does it override the need to stop the spread of coronavirus.”
New Yorkers aren’t being prevented from exercising their First Amendment rights at the moment, though as Brown notes, there may be some restrictions that have been put in place limiting the size of gatherings. Still, the press is still working, people are free to pray (or not) as they choose. The freedom of public assembly has been put on ice for the moment, and that does actually raise some genuine constitutional questions as well, but to compare the state of the First Amendment to the state of the Second Amendment in New York is to compare horseshoes and hand grenades.
As the NRA lawsuit makes clear, there is currently no way for a New Yorker to legally acquire a firearm or ammunition at the moment, unless they’re lucky enough to be able to get one from an immediate family member. Every other transfer of a firearm must go through a background check, and with gun stores shut down, there’s nobody to conduct those background checks for retail sales or private transfers.
The lawsuit does note that Cuomo has not officially declared gun stores need to close, but neither has he included the stores in the list of essential businesses allowed to operate. Adding to the confusion, the governor’s order does mention “essential retail,” but the order is vague and open-ended about what retail actually qualifies beyond those sectors specified by the governor. As a result, according to the lawsuit, most gun stores have shut down rather than risk sanction by the state.
I’m really glad to see Cuomo’s order challenged in federal court, and with the NRA seeking a temporary injunction halting Cuomo’s order while the legal fight plays out, we shouldn’t have to wait too long to learn whether stores will be allowed to re-open for business in the Empire State.