Federal Judge: Cuomo Can Consider Gun Stores "Non-Essential Businesses"

A legal challenge to Gov. Andrew Cuomo’s order declaring non-essential businesses, including gun stores, to close because of the COVID-19 coronavirus was dealt a setback this week when a federal judge declared that the Second Amendment rights of New Yorkers weren’t violated by the shutdown of most retailers.

The lawsuit was brought by Long Island-based Dark Storm Industries, which had argued that Cuomo’s non-essential business declaration amounted to a violation of the right to keep and bear arms, since New Yorkers hoping to purchase a firearm would be unable to do so. U.S. District Judge Lawrence Kahn disagreed, however, and in his decision pointed out that plenty of New Yorkers found a way to purchase a firearm since the order went into effect in March.

After the orders were issued, Dark Storm contacted the Cuomo administration, which relayed that the company could continue business with law enforcement and the military, but not civilians. As a result, Dark Storm closed for business, even as other gun sellers such as Walmart, which sells a far broader array of types of goods, were allowed to remain open.

Because guns were available even during the height of the pandemic, Second Amendment rights were not unduly infringed upon, Kahn stated in Wednesday’s ruling.
The Cuomo administration “made a policy decision about which businesses qualified as ‘essential’ and which did not. In the face of a global pandemic, the court is loath to second-guess those policy decisions,” Kahn stated in his ruling. “Having found that the burden on plaintiffs’ Second Amendment rights is insubstantial, the court has no need to apply any form of heightened scrutiny to the executive orders.”
Under Cuomo’s order, essential businesses like Wal-Mart or hardware stores were allowed to remain open, and could continue to sell firearms, but the vast majority of gun shops were told to close, unless they were small stores with only one employee (another exemption in Cuomo’s original stay-at-home order). It’s true that firearms were still available to purchase in New York State even after Cuomo declared gun stores to be non-essential, but I disagree with the judge about the burden placed on gun buyers.
Back in May, USA Today ran a story produced with the help of Michael Bloomberg’s anti-gun news outlet The Trace, which noted that even in states that had declared gun stores to be non-essential, sales were booming. One exception, however, was the state of New York.
The two states that didn’t register any year-over-year increase in firearm background checks were New York and Massachusetts. In New York, the number of checks hovered just below normal levels. In Massachusetts, background checks saw a significant year-over-year decrease, falling 66%…

In each of the five states where gun stores were deemed nonessential, The Trace contacted retailers to inquire whether they were open. In Michigan, 15 of 20 stores said that they were open to walk-in customers. The remaining five did not answer their phones. In Washington, all 10 dealers contacted were also selling guns, but some emphasized that they required customers to schedule appointments to ensure social distancing.

In New Mexico, 9 out of 10 dealers contacted were open throughout April; in New York, four out of 10 stores contacted said the same. The remaining stores in both states did not answer calls.

While background checks were soaring across the United States, they were stagnant in New York. That’s an indication to me that Cuomo’s ordered closure of gun stores did have an impact on New Yorkers hoping to exercise their Second Amendment rights. Wal-Mart, for example, doesn’t sell handguns or modern sporting rifles, so folks wanting a handgun for self-defense couldn’t turn to the giant retailer even if its gun counter was open and staffed. Some stores may have chosen to quietly remain open despite Cuomo’s order, but even The Trace was forced to acknowledge that 60% of the shops they contacted were closed. It could very well be that the stores they contacted that remained open were either not full-time firearms retailers, or small shops that fell under the governor’s sole-employee exemption.
While some guns were sold to some New Yorkers, the evidence from around the country indicates that if gun shops had been allowed to remain open in New York State, background checks would have soared to record highs instead of being slightly down from April of 2019. That suggests that an unknown number of New York residents really were deprived of their ability to purchase a firearm for self-defense thanks to Cuomo’s coronavirus order.
Dark Storm Industries, which makes NY-compliant AR-15s, didn’t qualify under any of the governor’s exemptions and did shut down for several months. They could be forced to do so again if New York, which is currently in Phase 3 of its reopen plan, sees another spike in cases and the governor issues another executive order. Another prolonged shutdown could end up forcing DSI to close its doors for good, so I’m hoping that the company will appeal Kahn’s decision to the Second Circuit Court of Appeals, even if they may be facing long odds there as well.