A circuit court judge in Lynchburg, Virginia is expected to issue a ruling on Monday that could allow indoor ranges in the state to be re-opened, after Gov. Ralph Northam included them in a list of non-essential businesses ordered to close because of coronavirus concerns.
The lawsuit, filed by the Virginia Citizens Defense League, Gun Owners of America, SafeSide Lynchburg, and the Association of Virginia Gun Ranges, argues that Northam’s moves violate Virginia’s state constitution. Northam, meanwhile, tried to have the lawsuit moved from state court to federal court, hoping for a friendlier judge and arguing that the case is really all about whether or not the Second Amendment rights of residents are being violated by his order, not whether the right to bear arms protected by Article 1, Section 13 of the state constitution.
Thankfully, the governor’s gambit failed, and it will be up to a local judge in Lynchburg to decide if SafeSide Lynchburg can re-open their indoor range next week.
On Friday, Judge Frank Patrick Yeatts heard from attorneys for both sides during a hearing on a request for an injunction. Attorneys for the Second Amendment groups and the Lynchburg range pointed out the language protecting the right to keep and bear arms in the state constitution, and noted that the federal Department of Homeland Security’s guidance on critical members of the workforce includes firearms ranges, arguing that the governor’s executive order declaring non-essential businesses must close went too far.
Virginia’s Solicitor General, meanwhile argued that while the Second Amendment rights of Virginians may be impacted by the governor’s order, gun owners were still free to use outdoor ranges while the governor’s order remains in effect. Therefore, their Second Amendment rights remain intact, or at least that’s what the commonwealth claims.
In their original complaint, the pro-2A attorneys anticipated the arguments put forth by the solicitor general. Yes, the governor hasn’t gone so far as to shut down all gun ranges, or gun stores. If he’s allowed to keep indoor ranges shut down, however, who’s to say he won’t come back for a bigger bite at the apple?
Significantly, the Governor appears to have recognized some limitation on his authority in that did he not close gun stores in Virginia. Nevertheless, the camel’s nose has entered the tent. It would be dangerous in the extreme to allow the Governor to chip away at firearms-related rights incrementally with his closure of indoor shooting ranges. If this action is allowed this year, an exceedingly dangerous precedent would be established which could be relied on by this or a subsequent Governor in a future emergency to order the closure of outdoor gun ranges, or even close all gun stores with the stroke of his pen.
The attorneys for SafeSide Lynchburg and the pro-2A organizations also argued that state law precludes the governor from ordering ranges to close, whether indoor or outdoor.
The Governor has no such power. He is barred from closing shooting ranges under the Virginia “Emergency Services and Disaster Law.” But even more importantly, his closure order infringes on rights recognized and protected by Article I, § 13 of the Virginia Constitution and the Second Amendment of the United States Constitution. It does not matter that the Governor has issued an emergency declaration or declared a state of emergency, as no elected official has the discretionary authority to suspend the protections the People wrote into their Constitution which also created the office in which the Governor serves.
The text of EO 53 itself reveals a disrespect for the exercise of firearms-related rights. It closes down indoor shooting ranges as mere “places of public amusement.” But although there is no enumerated right in the United States or Virginia constitutions to frequent a tanning salon, racetrack, or bowling alley, there is such a right recognized in both constitutions that protects shooting ranges. Moreover, EO 53 allows businesses to remain open that are favored by the Governor, yet which expose Virginians to a much higher degree of social interaction than indoor shooting ranges.
Here’s the applicable text of Virginia’s Emergency Services and Disaster Law.
Nothing in this chapter is to be construed to empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms [emphasis mine] as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor, any political subdivision of the Commonwealth, or any other governmental entity as an emergency shelter or for the purpose of sheltering persons;
Does the governor’s order to keep indoor ranges closed limit in any way the right of the people to keep and bear arms? Of course it does. There are millions of Virginians who don’t live near an outdoor range, but within a relatively short drive from an indoor range. The closure of indoor ranges has greatly limited the ability of Virginians to train with their firearms, including taking basic pistol courses and receive concealed carry instruction. Based on the language of the state statute, the judge in this case may not even have to reach a conclusion about whether the governor’s orders violate Virginia’s constitution or the Second Amendment.
Ironically enough, the Emergency Services and Disaster Law language protecting the right to keep and bear arms in a declared state of emergency was supported by Ralph Northam and Attorney General Mark Herring in 2012. Both were state senators when they approved the bill that included the Second Amendment protections in the statute that’s now being used to try to undo Northam’s gun range closures. The 2020 version of Ralph Northam may claim to have the authority to order ranges to shut down, but 2012 Ralph Northam assured us that he didn’t.
Ultimately, it’s not up to either version of Ralph Northam to decide. That decision rests in the hands of a judge in Lynchburg, and hopefully we’ll learn on Monday whether or not the plain language of the state statutes and our state and U.S. constitutions are anything more than words on paper.