States' Actions on Guns During Coronavirus Pandemic Raises Second Amendment Questions, Attorneys Say

A worker restocks AR-15 guns at Davidson Defense in Orem, Utah, on March 20, 2020. GEORGE FREY/AFP/Getty

As cities and states across the country race to manage the coronavirus pandemic, stay-at-home orders have closed gun shops and some mayors have attempted to limit firearms sales. Although these moves are designed to protect the public, they may also be bumping up against Second Amendment protections, legal experts said.

"There is a constitutional right at issue, and the question is whether states need to have carveouts for those constitutionally protected activities when they issue blanket orders as a result of an emergency," Jake Charles, the executive director of the Center for Firearms Law at Duke Law School, told Newsweek.

In Champaign, Illinois, the city issued an emergency declaration invoking portions of the municipal code that allowed the mayor to "order the discontinuance of selling, distributing, dispensing... firearms."

That led gun-rights groups, who are highly focused on limitation efforts, to push back—the National Rifle Association, for example, sent out a national alert warning that Champaign's order represented a targeted attempt "to destroy the Second Amendment."

The city later issued several clarifications, saying that its initial order had "been misconstrued" and that it would never take action to "violate anyone's civil liberties."

Across the country, 21 states have ordered people to stay at home, and businesses deemed nonessential were ordered closed. Many of these orders impact gun sellers directly. But the decision to include gun stores among the closures of "nonessential" businesses is complicated, and one that requires politicians to walk a fine line.

That's because the courts have granted limited, constitutional protections to gun stores, meaning they cannot be regulated out of existence. And gun-rights supporters continue to argue that the Second Amendment goes further to grant gun stores a special constitutional role during emergency situations.

But the right to sell firearms sits somewhere in the middle of the secured right to self-defense and the tightly regulated open market.

For example, in 2012, John Teixeira of California sued Alameda county because it refused to grant him a permit to open a gun dealership. An appellate court in 2017 said that his Second Amendment rights had not been violated simply because he was not permitted to open the shop in a residential area.

"The core of the Second Amendment right is possession in the home for self-defense purposes," Charles explained, emphasizing that any challenge to emergency gun restrictions could turn on the intent of the executive order and the competence of its drafters.

But in times of emergencies, courts are generally deferential toward executive offices, according to Andrew Boyle, counsel for the Liberty and National Security Program at the Brennan Center for Justice.

"In times of crisis, when the government claims whatever action they are taking is in the name of national security, the story of our judiciary is that they give the deference," Boyle explained. "They can inquire and look skeptically at these justifications if they wish to, but in actuality that's how things work."

After Hurricane Katrina ravaged the city of New Orleans, the police superintendent, P. Edwin Compass III, announced a complete ban on firearms ownership. The police department went door to door in order to confiscate firearms, over fears of looting, robberies and otherwise mischievous behavior.

"No one is allowed to be armed. We're going to take all the guns," Compass is reported to have said at the time. "Only law enforcement are allowed to have weapons."

The policy led to a federal lawsuit from the National Rifle Association and Second Amendment Foundation, who, years later, reached a settlement with the city to return confiscated firearms.

On Sunday, Pennsylvania Governor Tom Wolf secured a victory from the state's Supreme Court after a gun-store owner sued over statewide closures of nonessential businesses. Wolf rescinded his decision just a few days later, exempting gun dealers from the mandatory closures.

In Los Angeles on Tuesday, County Sheriff Alex Villanueva said that gun stores were not considered essential and had to shutter. Then he reversed course, announcing these stores would be indeed be allowed to remain open, only to backtrack once more and demand that they close down.

In New Jersey, the state has effectively halted all sales and transfers of firearms because the New Jersey State Police last week shut down the background check system, a precursor to all transactions involving guns.

Gun-rights supporters have certainly taken note. In Tennessee, the state's firearms association sent out an alert reminding residents of their Second Amendment rights during public emergencies.

And just like during Katrina, lawsuits are now beginning to pile up. The Second Amendment Foundation and Firearms Policy Coalition sued the New Jersey governor and state police on Thursday over the newly announced restrictions in that state. The lawsuit claims that New Jersey was singling out gun stores at the same time it was permitting "the retailers of many other products—including alcohol, marijuana, and office supplies—to continue distributing goods to the public."

Charles said that the ultimate fate of these sorts of policies could very well depend on states' intentions, and whether they had a demonstrated ability to accommodate other businesses that was being denied to gun dealers.

"Maybe a policy is upheld if guns aren't carved out but are just treated as nonessential," he reasoned. "But if marijuana businesses start to get carveouts—to the extent it looks like the state can make individualized rules and they're just not doing it for guns—it becomes harder to justify a blanket ban."

Nevertheless, Charles said that, in general, courts "don't want to be seen as stepping in and overruling a state on an emergency order unless they have to." The timeline for these disputes can drag on long beyond the initial emergency period, making them difficult to resolve to anyone's satisfaction.

"In retrospect, we'll be able to see whether what we do during an emergency is too much, but for now let's do everything," Boyle explained about the reasoning behind aggressive emergency orders. "Judges generally have the same mentality, where they say, 'We're not going to poke into this too much during a crisis, but when it's over we'll feel much more comfortable deciding what was legal and what wasn't."