Michael Bloomberg’s anti-gun law firm, Everytown Law, is trying to convince elected officials around the country to shut down gun stores during the current national emergency, and has sent a letter to state and local officials in charge of enforcing COVID-19 emergency closure orders offering up a strategy and legal argument for those who do so. Fortunately for gun owners, and unfortunately for the gun control lobby, their argument doesn’t stand up to the slightest bit of legal scrutiny.
Everytown’s attorneys argue that gun stores aren’t being singled out for closure when they’re declared non-essential businesses, but instead are just one of many retail establishments that can’t sell their goods. They also point to a Supreme Court decision from 1986 called Arcara v Cloud Books, where justices ruled that a state had the authority to close a book store because it was a “public health nuisance.”
While the burden on speech was significant, as the bookstore was forced to shut its doors for a year, that did not change the result. Because the law at issue was directed at conduct “having nothing to do with books or other expressive activity,” the First Amendment simply was not implicated. Similarly, the Supreme Court has held that incidental burdens on the free exercise of religion—even severe ones prohibiting conduct central to an individual’s faith—cannot relieve one of the obligation to comply with a law that is “not specifically directed at . . . religious practice.
The problem for Everytown is that we’re not talking about an incidental burden on the right to keep and bear arms. By ordering gun stores to close, public officials are blocking access to firearms and ammunition to anyone who’s not currently exercising their Second Amendment rights.
Since Everytown brings up bookstores, let’s explore that analogy a little further. First, in the case that the anti-gun law firm cites, the state shut down ONE book store as a public health nuisance. There were still plenty of other book stores open for readers who wanted to grab a copy of their favorite magazine or a new paperback. Even if all bookstores were ordered to physically close their doors to inhibit the spread of the coronavirus, consumers can go online and have new or used books shipped to their door, as well as download books to their e-readers.
Not so with firearms. Once gun stores in a state are shut down, residents of those states lose the ability to acquire arms, and in some states, they may not have the ability to purchase ammunition either. You can’t ship a gun to your home, and you can’t download a gun to your e-reader. In states that require background checks on all firearms transfers, there’s simply no legal way to acquire a firearm without going to a gun store.
New York, for example, has closed not only gun stores but also, to name a few, bookstores, marriage license bureaus, social clubs, and performing arts centers—all of which places notable burdens on constitutional rights. That there are provisions in the orders allowing for “essential businesses,” providing such things as food, banking, health care, and medical supplies, to remain open does not change the constitutional analysis. Because suppressing the exercise of Second Amendment rights (or of any other right) is not the object of the closure orders, they remain neutral, generally applicable, and thus constitutional. Just as states can ban the use of controlled substances and enforce that broad law against someone who uses drugs as part of their religious observance (see Smith, 494 U.S. at 890); and localities can enforce fire codes and public-health laws against bookstores even if that means the bookstore has to close (see Arcara, 478 U.S. at 705, 707); so too, a gun dealer cannot demand special treatment to avoid shutdown orders during the most significant public-health crisis of the last 100 years.
Firearms retailers aren’t demanding “special treatment,” they’re arguing that they are essential businesses, and they now have the backing of the Department of Homeland Security to bolster their position. Everytown Law also claims that those Americans seeking to acquire a firearm for self-defense right now aren’t really seeing their rights infringed when their state denies them the ability to do so.
To begin, the right recognized in District of Columbia v. Heller is an individual right of law-abiding, responsible citizens to keep and bear certain firearms (such as handguns) in the home for self-defense. It “does not confer a freestanding right on commercial proprietors to sell firearms.” Orders closing businesses are not addressed to an individual’s right to keep and bear their arms. Furthermore, states and localities are ordering businesses to close temporarily—delaying the ability to acquire a gun—not barring anyone from gun possession permanently.
A right delayed is a right denied, as Rev. Martin Luther King, Jr. once said. Orders closing businesses may not be addressed to an individual’s right to keep and bear arms, but it certainly has an impact on their rights. Everytown Law supposedly has an answer for that argument, but again, it’s just not a very good one.
To the extent that individuals who do not own or possess guns assert that these orders infringe their right to keep and bear arms because they want to buy a gun but currently cannot, it is important to bear in mind that the Second Amendment does not guarantee a right to acquire a gun immediately, at any time, on demand. The Supreme Court affirmed in Heller that “laws imposing conditions and qualifications on the commercial sale of arms” are constitutional. And, since Heller, courts have upheld background checks, waiting periods, licensing laws, and training requirements as consistent with the Second Amendment, even though they bring with them delays on immediate acquisition. Those limitations on the ability to purchase a gun on demand are in place to protect public safety—to keep guns out of the hands of dangerous individuals, to ensure that a gun is not purchased and used immediately in an impulsive act of violence or self-harm, and to further the safe and responsible use of firearms. The same is true of orders temporarily closing retail commercial businesses: they are in place to protect public health and safety in the face of the unique and unprecedented circumstances of the current crisis. Given that it is lawful to temporarily delay firearm purchases in the ways described above, it follows that state and local officials do not violate the law by temporarily delaying such activity as part of a general suspension of vast swaths of retail and other commercial businesses to address an urgent public-safety crisis.
I happen to think that things like waiting periods, licensing laws, and the like are in fact unconstitutional, but even if you want to make the case that they’re not, those laws aren’t the issue right now. Shutting down an entire industry is not the same as imposing a ten-day waiting period on those wishing to purchase a firearm. It imposes an unreasonable burden on law-abiding Americans who want to exercise their right to keep and bear arms, a right that doesn’t disappear even in the most unique and unprecedented crises.
For years, Everytown for Gun Safety has presented itself as a moderate “gun safety” group that isn’t interested in stripping Americans of their rights, but is only in favor of “commonsense gun safety” regulations. Now they’re exposing that lie all by themselves. In a time of uncertainty, and during an emergency, Everytown is doing everything it can to prevent Americans from acquiring firearms and ammunition. There’s nothing common sense about that. Their position has nothing to do with gun safety and everything to do with keeping as many Americans as possible unarmed and defenseless when more Americans than ever before are choosing to exercise their Second Amendment rights.