The sheriffs of Wake County, North Carolina and Los Angeles County, California are the subjects of the latest round of lawsuits targeting emergency orders over the coronavirus pandemic, along with California Gov. Gavin Newsom.
The California governor, along with Sheriff Alex Villanueva, are being sued over the closure of gun stores in Los Angeles County, which were ordered by the sheriff under the auspices of Newsom’s shelter-in-place order closing all businesses deemed to be non-essential. The governor declined to declare gun stores essential, and after stating during a press conference on Thursday that he was leaving it up to sheriffs to make the call, Villanueva ordered stores closed.
The complaint (which can be found here), argues that despite the extraordinary circumstances we find ourselves in, Newsom and Villanueva don’t have the authority to simply declare the exercise of a fundamental right to be null and void.
In fact, the importance of maintaining the ongoing activities of essential businesses for the safety, health, and welfare of Californians makes Plaintiffs’ point: the need for enhanced safety during uncertain times is precisely when Plaintiffs and their members must be able to exercise their fundamental rights to keep and bear arms.
The governmental infringements at issue are only compounding the very dangers they purportedly seek to mitigate. In this context, firearm and ammunition retailers arguably provide the most essential business function possible by enabling Californians to lawfully defend themselves, their loved ones and their property.
The various Orders that have been put in place by the Governor of the State of California, the California Department of Public Health, the Los Angeles County of Public Health, and the Los Angeles County Sheriff are unconstitutionally vague, arbitrary and capricious, and violate the Second and Fourteenth Amendment rights of Plaintiffs and similarly situated Californians.
State and local agency and county policies may not, legislatively or though mere fiat, as here, enact and/or enforce a suspension or deprivation of constitutional liberties during a time of crisis. And they certainly may not use a public health crisis as political cover to impose bans and restrictions on rights they do not like. Their Orders, policies, and practices that do so much be immediately restrained and enjoined to protect the fundamental rights of law-abiding Californians.
The suit, called Brandy v. Villanueva, was brought by several individuals and Second Amendment organizations, including the Second Amendment Foundation, National Rifle Association, California Gun Rights Foundation, and the Firearms Policy Council. The plaintiffs are seeking an injunction that would prohibit Newsom and sheriffs from ordering gun stores closed while the case is being litigated in court, though I wouldn’t be surprised if the judge allows Villanueva’s decision to be enforced while the case is being litigated, since residents of Los Angeles County can still travel to other gun stores that remain open in order to purchase a firearm.
Meanwhile, the Second Amendment Foundation and Firearms Policy Coalition are joining Grassroots N.C. to challenge Wake County Sheriff Gerald Baker’s decision to not accept any applications for pistol purchase permits for nearly six weeks, leaving residents of the county unable to legally acquire the most common firearm for self-defense in the country.
In Stafford v. Baker the plaintiff’s argue that Baker’s actions amount to an unconstitutional infringement of the right to keep and bear arms. You can’t keep and bear if you can’t acquire, and as the Supreme Court ruled in Heller, banning an entire class of firearms like all handguns is a violation of the Second Amendment, even if rifles and shotguns remain available for purchase. That’s the situation in Wake County at least until the end of April, according to the sheriff, and that’s unconstitutional, say the attorneys for the plaintiffs.
Defendant Baker’s current practice of refusing to accept or process any new PPP applications constitutes a de facto categorical ban the likes of which is absolutely prohibited under the supreme law of the land, because it erects an insurmountable bar to obtaining a handgun – the “class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of self-defense – for any average law-abiding citizen in Wake County.
Even looking to the tiers of scrutiny – for the sake of argument only since Heller mandates striking down a categorical ban like this, period – the most exacting degree of scrutiny would apply, which the ban would clearly fail despite (and partly because of) the current state of emergency. Defendant Baker’s current practice of refusing to accept and process PPP applications have prohibited and are continuing to prohibit Individual Plaintiffs, the members and supporters of Institutional Plaintiffs, and all other similarly situated individuals from keeping, bearing, buying, selling, transferring, receiving, possessing, and/or transporting the quintessential class of protected arms, in violation of their Second Amendment rights. If not declared as unconstitutional and enjoined as such, Defendant Baker will continue with this practice, and Plaintiffs have no plain, speedy, and adequate remedy at law.
As in the California case, the plaintiffs are asking for an emergency injunction blocking Sheriff Baker’s actions and compelling him to continue to accept pistol purchase permit applications.
I wouldn’t be surprised if Baker surrenders here, but it may not solve the problem. Baker says his office has received over 750 applications over the past week, and the reason he wants to suspend taking new applications is to clear through the mountain of paperwork that’s piled up. He may decide to accept the purchase permit applications, but that doesn’t mean he’ll process them any faster, though state law only allows the sheriff 14 days to approve or deny an application and that would inevitably lead to another round of litigation.
The suit also challenges Baker’s suspension of concealed carry license applications, and that might be a harder case to make. Open carry is still legal in North Carolina, so the plaintiffs do have the ability to bear arms, even though one common manner of carrying is off-limits to them. Baker may also argue that the fingerprinting process has been halted for all kinds of licensing in Wake County because of public health reasons, and to continue processing concealed carry applications wouldn’t serve the public interest.
I’m very impressed by the ability of Second Amendment organizations to respond this week to growing number of emergency orders implicating our right to keep and bear arms, and if you can, now would be a great time to show your favorite organizations some financial support. Rarely do I make a pitch like this, but litigation like this isn’t free, and the worst may be yet to come in some of these anti-gun states. Right now we’ve seen orders from public officials that have made it impossible to legally acquire a firearm. The next step, if any of these politicians would be zealous enough to take it, would be to try to ban the transportation of firearms. That sounds almost unthinkable, even to me, but then again, I didn’t think a month ago that we’d be talking about the governor of New New Jersey shutting down firearm background checks to prevent legal gun sales. These are extraordinary times, and if we can afford to do so we need to support the organizations that are not only engaged in the fight today, but will be needed for the fights in the weeks to come.