Divided PA Supreme Court: Governor can shut down firearms dealers during Coronavirus emergency

Dissent for three Justices: "This amounts to an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this Commonwealth—a result in clear tension with the Second Amendment..."

|The Volokh Conspiracy |

Last week, Pennsylvania Governor Tom Wolf issued an order that closed all "non-life-sustaining businesses." That order required licensed firearms dealers to shut down. In contrast, the Governor of Illinois defined firearm suppliers "for purposes of safety and security" as "Essential Businesses" that can remain open

The Civil Rights Defense Firm filed an emergency application for extraordinary relief on behalf of a firearm dealer in Pennsylvania, as well as a Pennsylvanian who seeks to purchase a firearm. They argued, among other claims, that the Governor's order violates the Second Amendment. The Governor filed an answer, and the City of Philadelphia field an amicus brief.

Sunday evening, the Supreme Court of Pennsylvania denied the Second Amendment claim with a one-sentence order:

In all other respects, the Application is DENIED.

Justice Wecht dissented from this order, joined by Justices Donohue and Dougherty. (Please keep Justice Wecht in your prayers; his son has tested positive for COVID-19.) Justice Wecht explained that the order results in a complete prohibition of the right to sell firearms during this emergency:

I write separately because the present Application for Emergency Relief brings to the Court's attention a deprivation of a constitutional right. The Governor's Order of March 20, 2020, the "Order of the Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses That Are Not Life Sustaining" (the "Order"), makes no allowance for any continued operation of licensed firearm dealers. In light of the regulatory framework attending the sale and transfer of firearms, the inability of licensed firearm dealers to conduct any physical operations amounts to a complete prohibition upon the retail sale of firearms—an activity in which the citizens of this Commonwealth recently have been engaging on a large scale, and one guaranteed by both the United States Constitution and the Constitution of this Commonwealth.

Justice Wecht explains that under current law, the only way to transfer a firearm is in a physical premise. But the Governor's order shuts down those businesses.

Unlike the vast majority of other items, the sale and transfer of firearms sold at retail cannot be completed merely by way of telecommunication and mailing under existing law. Under federal firearm laws, a licensed firearm dealer may transfer a firearm to a purchaser who does not appear in person at the licensed premises only when a background check is not required to transfer the firearm, and both the dealer and the purchaser reside in the same state.  In Pennsylvania, a licensed firearm dealer must perform a background check in conjunction with the retail sale of any firearm.  Moreover, the Uniform Firearms Act provides that the "business" of a licensed firearm dealer "shall be carried on only upon the premises designated in the license or at a lawful gun show or meet." Id. § 6113(a)(1).

Justice Wecht cites Bateman v. Perdue (E.D.N.C. 2012). This case declared unconstitutional a state law that authorized the government to prohibit the sale of firearms during an emergency.

The effect of this regulatory scheme is that, notwithstanding any payment, the actual transfer of a firearm from a dealer to a purchaser must be completed at the dealer's place of business. Quite simply, if firearm dealers are not able to conduct any business in-person at their licensed premises, then no transfers of firearms can be completed. This amounts to an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this Commonwealth—a result in clear tension with the Second Amendment to the United States Constitution and Article I, Section 21 of the Pennsylvania Constitution. See generally District of Columbia v. Heller, 554 U.S. 570 (2008); see also Bateman v. Perdue, 881 F.Supp.2d 709 (E.D.N.C. 2012) (applying Heller to hold unconstitutional a statute authorizing government officials to prohibit the sale of firearms during state of emergency); id. at 714 (noting that statute "effectively prohibit[s] law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for selfdefense" thus "burden[ing] conduct protected by the Second Amendment").

Justice Wecht closes with a very pragmatic solution: allow some reasonable manner for the people to exercise their rights. Let gun dealers follow the same hygiene standards as other essential businesses that can remain open. For example, gun dealers must remain six feet apart from gun buyers. The gun must be wiped down with a Lysol wipe. Etc. There are ways of managing these transactions responsibly. And the existence of a constitutional right requires some form of narrow tailoring.

In my view, it is incumbent upon the Governor to make some manner of allowance for our citizens to continue to exercise this constitutional right. This need not necessarily take the form of a generalized exception to the Order for any and all firearm retailers, although such retailers have been classified as "essential" elsewhere in our Nation.2 To the contrary, just as the Governor has permitted restaurants to offer take-out service but restricted dine-in options, the Governor may limit the patronage of firearm retailers to the completion of the portions of a transfer that must be conducted in-person. Such an accommodation may be effectuated while preserving sensible restrictions designed to slow the spread of COVID-19, but nonetheless provide a legal avenue for the purchase and sale of firearms, thus avoiding an impermissible intrusion upon a fundamental constitutional right.

If people can enter a McDonalds to pick up a Big Mac, then people should be able to enter a firearm store, complete the requisite background check process, and get their firearm.

This case may be headed to the United States Supreme Court. As a general matter, emergency applications for stays are rarely granted. But this application may be well timed. Last term, the Supreme Court granted its first Second Amendment case in nearly a decade: New York State Rifle & Pistol Club Association v. New York. However, New York took deliberate acts to moot the controversy. I had expected the Court to quickly dump the case on mootness grounds, but they did not take that step. I suspect now the Justices are wrangling over the finer points of mootness doctrine. The Pennsylvania case may provide the Court with a straightforward opportunity to issue a narrow per curiam ruling on the Second Amendment.

The judgment could follow Justice Wecht's dissent: at a minimum, licensed firearm dealers should be treated like other "essential" businesses in the state, and can remain open during the emergency. I'm sure the gun dealers will comply with whatever social distancing rules apply to other businesses. Moreover, the Plaintiffs in this case are law-abiding gun dealers and gun buyers. They will comply with all relevant regulations. Such a narrow ruling could go a long way to reaffirming that the Second Amendment is not a second-class right that can be shooed away with the stroke of a Governor's pen.

I'll close with a policy argument. Our society is veering towards uncharted waters. At some point, I worry that civil unrest will spread. And I am not confident that first responders will be able to handle violence, looting, and other forms of crime. Indeed, the very act of arresting a person requires physical contact with a person who may be symptomatic. Business in Philadelphia, Chicago, and across the country are already boarding up their windows. The right to bear arms for defense is especially important in such times of conflict. You may dial 9-11, and the response is, "sorry, we can't help right now." At that point, Governor Wolf's executive order will not provide any protection. A functional firearm will be far more useful than a pallet of toilet paper.

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  1. At least 4 of the Justices want the 2nd amendment to be an effectively nonexistent right, but they’ll certainly settle for 2nd class if that’s all they can get.

    1. This would be a fine time for you to resume the hunt for former Pres. Obama’s birth certificate.

      Or to convene a meeting (electronic) of Birchers.

      1. If you’re going to parody AK then you have to work “bitter clingers” into your post. Otherwise, people are quickly going to know it really isn’t him posting.

        1. Do you dislike the terms “clinger” and “bitter clingers,” jack? Complain to Prof. Volokh — perhaps he will ban liberal (and libertarian, and moderate, and RINO) commenters on an emergency basis for you. I see no reason to believe the Volokh Conspiracy Board of Censors is off-duty during this crisis.

          You probably want to object to calling a bigot a bigot while you’re at it.

          1. Not really, after all, you’re a bigot. A feckless and trite one at best. See how easy that was.

  2. In an environment where law enforcement is reluctant to engage, they are doing mass prisoner releases, stores are closed and unattented, and there are shortages of essentials then the right to keep and bear arms is more essential than ever.

  3. Since when is abortion an essential service but not self defense?

    1. Since there’s only a limited window of time in which to have an abortion, otherwise the right is lost forever.

      1. You can always have another abortion later.

        In the meantime, someone gets a happy beautiful human baby.

        1. OK, by your reasoning, you can always buy a gun later.

          1. True. But this is one of those “If one is essential under this logic, the other is essential under this logic” arguments, and “if one isn’t essential, the other isn’t essential”.

            You were arguing abortion was essential, but gun purchases weren’t.

            1. Actually, I didn’t argue either. My argument in its entirety is that it’s a stupid analogy.

      2. There’s also a limited window of time in which to buy a gun before you need it for a coronavirus pandemic, otherwise that right is lost forever as well.

        Plus what Armchair Lawyer said.

        1. I’d like to see some factual support for the claim that the people most likely to think they need a gun for the pandemic don’t already have one. It strikes me that someone who thinks he needs a gun for self defense doesn’t wait until there’s a panic to get one; he probably already owns several. Plus, we’ve known for weeks that there’s a pandemic, so I’m not inclined to be sympathetic to someone who waited until the last minute to take care of himself and his property. Much like the person in Florida who has known for days that a hurricane is on the way and waited until the day before to buy supplies, only to find empty shelves.

          All that said, please note from my other comments on this thread that I don’t support the governor’s order. I’m merely showing why the abortion analogy is a stupid analogy.

          1. That’s the way I feel about women who demand to exercise their “choices” after six weeks.

            1. I see you’re not a biology major.

          2. Doesn’t a father wanting to give a gun to his daughter have to go through a gun store and background check in PA?

          3. Call up any gun store and see how many of their customers are first time buyers. Or you can just read the NY Times.

            “Some dealers said an unusually high proportion of sales have been to first-time gun buyers.”

            https://www.nytimes.com/2020/03/16/us/coronavirus-gun-buyers.html

          4. I’d like to see some factual support for the claim that the people most likely to think they need a gun for the pandemic don’t already have one.

            Is need a requirement for all our rights, or just this one?

      3. I think that a woman about to be raped would make the same argument about her having been denied the right to purchase a gun.

        1. It would be moot since a woman about to be raped probably wouldn’t have the opportunity to get to a gun store anyway.

          1. She would have been able to buy one BUT FOR the ban.

      4. So change the example from “get an abortion” to “read a newspaper” or “buy toilet paper”. You can always read your newspaper tomorrow. Or next month. Or next year. Right?

        Of course not. Your right to freedom of speech is immediately infringed when the government prohibits you from reading the paper. There’s no “it’s an emergency” exception. There’s no get-out-of-jail card just because the government says the restriction will be temporary. On the contrary, your rights are at their most important during the government-declared emergency.

        Reasonable time/place/manner restrictions are allowed during an emergency – just as they are allowed during a non-emergency. Capricious prohibitions are not.

      5. There’s typically a time constraint on meeting the need for self defense as well. If someone is stalking or threatening you, you can’t just ask them to stand down until the pandemic is over. It’s ironic that you fail to see how apt the comparison is given that many supporters of abortion characterize many cases as effectively self defense.

        Also, most of your responses on this comparison ignore (despite it being repeatedly pointed out) miss that an obstetrician can deliver services at various different locations, and, given the number of successful home births, potentially make house calls, but by law, a gun dealer can’t.

        The issues of abortion rights and gun rights have a lot of similarities, which their proponents/opponents fail to see since they are seldom on the same side of both. One side’s dismissal of the other’s slippery slope resistance to (background checks/requirements for provider hospital admitting privileges) is quickly forgotten when the other side is dismissive of their own slippery slope reistance to the counter issue.

    2. My prediction is that the *entire* “essential” versus “nonessential” criteria will be struck down as being arbitrary.

      1. Your legal insights seem sketchy. Is that a Liberty or Ave Maria law degree talking, something you picked up from Hannity or Ingraham, or just a vague recollection from a discount homeschooling outline?

        1. Little difference between AK and a Klan member, except for the wardrobe and the object of his bigoted hate.

          1. Bigoted right-wing clingers and superstitious conservative knuckle-draggers and rattlesnake-jugglers just don’t seem ready to come around for me. I’ll just have to live without the support of movement conservatives.

            Until the last of them is replaced, that is. By their betters, as America continues to progress against their stale preferences and ugly efforts.

  4. Such a narrow ruling could go a long way to reaffirming that the Second Amendment is not a second-class right that can be shooed away with the stroke of a Governor’s pen.

    I don’t think anything shows the 2A is a second-class right, if it is being treated alike with a bunch of other rights which are also suspended to cope with a deadly emergency.

    Also, Kazinski’s comment above, about a justification for arms purchases founded on, “shortages of essentials,” may seem an argument on the basis of security to him. Others will hear it in an opposite way. During, “shortages,” control of “essentials” by private arms may deliver security to the privately armed, at the expense of insecurity for the others. There is no real basis for assuming on which side law-abiding conduct will best prevail. Most folks probably think that in an emergency, that ambiguity is less threatening in the case of public arms, in the hands of law enforcement.

    1. Newspapers and TV stations are ” non-life-sustaining businesses”, too, if you believe this asinine, liberty-threatening sophistry.

      Nice knowing you all. Happy days of a boot stepping on your face, forever.

      1. If a lockdown order means that someone can’t get to Best Buy to buy a computer that he was planning to use to exercise his First Amendment rights, or a newspaper is unable to get sufficient quantities of ink to continue to publish, is the lockdown order also unconstitutional as to them? For that matter, banning large groups would seem on its face to violate the First Amendment. So under this absolutist theory of the Second Amendment, under which gun rights trump everything else, how then does the rest of the lockdown survive constitutional scrutiny?

        I think this is a close case. I’m tentatively leaning in favor of requiring that gun stores be allowed to stay open. But this is not a ban on the right to keep and bear arms; it’s a ban on commercial activity that the governor believes furthers the spread of a deadly disease. Under your theory, if gun stores can’t be temporarily closed to help halt the spread of disease, then how can stores that sell computers and other goods used to facilitate the First Amendment not also have the right to stay open?

        1. Best Buy remains open. There are many options for a computer if the physical store is closed for some reason. For example, it could be bought over the phone, or online. Newspapers continue to get ink, and can get it delivered to them.

          You cannot order a gun and get it delivered to your house however. (You can however apparently order a crossbow online from Amazon) Shutting down the physical location of gun stores, in combination with the existing laws prohibiting gun sales online, effectively cancels all commerce in firearms.

          To use an analogous business, beer distributors in PA can remain open. That’s clearly not “life sustaining.” (Well beer is life sustaining, but you know what I mean). It’s pretty clear that firearms, being protected by the 2nd amendment, and being able to follow all the safety precautions other businesses follow, should be able to stay open. Especially as there is no online alternative for them.

          1. I didn’t say Best Buy isn’t open; I posed a hypothetical. “If” the order closed Best Buy.

            I doubt that there are very many businesses that don’t sell some product or other that implicates some Constitutional right or other. So we’re back to how to decide to close one business while leaving another open.

            I agree that to a certain extent, the determination of what is essential is a bit arbitrary and in the mind of the beholder, and people will be more sensitive about products that they themselves use. All of which militates in favor of allowing the gun stores to stay open. So my position remains: I tentatively think the gun stores should stay open, but I don’t think it’s the slam dunk you and others here think it is.

            1. There’s “implication” of Constitutional rights and “literally written into the Bill of Rights.” There’s a difference between the two.

              1. Sorry, I don’t agree. A right is a right, whether implicit or explicit. I would say that the right to an abortion is every bit as strong constitutionally as the right to bear arms.

                1. Sorry, but the right to kill babies or explode inside another man’s tuchis is not as “strong” as the right to keep and bear arms.

                  1. Krychek has a problem with reading comprehension as there are no exceptions set forth in the second amendment.

                    Of course, there is no right to abort a baby as doing the same violates the bambino’s right to life.

                    There is, however, a right to sodomy, protected by the 9th amendment. Sodomy, though extremely icky and base and ugly, does not, of itself, violate another’s right unless the sodomy is non-consensual.

                    1. Libertymike, there are no exceptions set forth in the First Amendment either, but that doesn’t mean I can yell through a bullhorn under your bedroom window at midnight. Or practice my religion by hijacking an airplane and then flying it into a building.

                      If you want to see the world in stark black and white, you’re going to be disappointed. The world is far more nuanced than you give it credit for.

                    2. If you want to keep your bullhorn in your home is there any law against it? Or five bullhorns? Or great big, giant bullhorns? Or carrying your bullhorn in public down the street in your pocket? Where is the law that prevents you from doing so?

                      Can you be of any religion and fly in a commercial airliner? And even practice your religion by praying or reading your holy scripture while the plane is in the air. Where is the law that prevents you from doing so?

                      You cannot name one, can you. So you have to go with someone misusing those freedoms to harm others in order to try to make a point.

                      Well, guess what. We ~also~ are in agreement that someone misusing a gun to hurt someone should be punished, and it should be against the law.

                      But the same as someone merely possessing a bullhorn, or praying, is not against the law, why should a person who is hurting no one merely by having a gun somehow be punished because it is against the law.

                      Had not quite thought that thru before you posted, eh.

                  2. Still wondering why your stale preferences have lost the culture war, clingers?

                  3. It’s not killing a baby. It’s a fetus. It doesn’t become a baby until it’s born.

                    The idea that life begins at conception is almost entirely religious. People who do biology for a living disagree.

                    1. No, those who “do biology” for a living believe life begins at conception, as it’s scientifically a fact.

                    2. I’ve never, ever seen parents pass around pictures of their ultrasound check of their unborn child and proclaim, Oh, look at our wonderful fetus.

          2. I wonder about the converse — if this ban could be used as a defense against a criminal charge of illegal possession of a firearm.

        2. I’d also be more sympathetic to the state’s argument if ALL retail was closed. But it’s not. Hardware stores, grocery stores, convenience stores, and automotive stores are allowed to remain open. If you’re going to carve out exceptions, those exceptions surely must include the ONLY way one can exercise a Constitutional right.

          1. The police power is not to be balanced against individual liberty as there are no provisions in the decalogue that authorize the same. Any argument to the contrary is just progressive gibberish.

        3. It is an arbitrary and capricious ban. The governor clearly knows how to allow sales of some products as evidenced by all the categories of retail that are allowed to remain open. The governor refuses to allow gun stores to exercise equivalent protocols.

          Remember, too, that this is a government-created problem. If guns could be transferred without recourse to a mandatory in-store transaction, the governor would be on stronger footing with the argument that the closure is reasonable and proportional. The government does not get to claim that compliance with their own arbitrary rules suddenly allows them to ignore an enumerated right.

    2. “There is no real basis for assuming on which side law-abiding conduct will best prevail.”

      I’m not exactly sure what that means. I’m going to address what might be a similar question.

      If you have a generally pessimistic worldview that the majority of people are savages ready to shoot their neighbors for a roll of TP, and those default behaviors are only held in check by constant police presence, then it makes sense to want to suppress a lot of things – guns, voting, and many other freedoms.

      If, on the other hand, one has a generally optimistic view of one’s neighbors, and expects them to behave well and help each other out even in stressful times, then letting them vote, have guns, and myriad other freedoms makes sense. Each of us adopts one view or the other according to our temperament, I suppose.

    3. Well since there are background checks already assuring that those who buy arms are law abiding then I can assure you your fears are groundless.

    4. Stephen has always defaulted to the image of gun owners as ravenous, hordes of barbarians who are out to destroy society and kill as much as possible.

      1. AKA progressive idiocy.

    5. Most folks probably think that in an emergency, that ambiguity is less threatening in the case of public arms, in the hands of law enforcement.

      Please don’t make something up and attribute it to most people just to make it sound like it’s something other than your uninformed opinion.

    6. Its not a right if it can be suspended in an emergency.

      So since it is a right, it can’t be suspended.

      1. Now there’s a textbook example of circular reasoning.

        1. How about this then:
          A statute can’t abrogate or suspemd a constitutional right.

  5. I saw a headline a couple of days ago that California was shutting down FFLs but not pot stores, because those are essential, and that made me look for the Pennsylvania list.

    Everyone can relax – the liquor stores are open.

    Going through the rest of the list is interesting. For example, paper mills can stay open, but not logging, so I guess you can make TP until you run out of logs. Ferrous metals production is OK, but non non ferrous (except aluminum!).

    Making medical devices is OK, but a long list of general manufacturing isn’t. I would suspect that your average ventilator company isn’t making everything in house, but is sourcing most of the parts from suppliers that are shut down.

    ‘Insurance carriers’ are on the shutdown list, which seems a little problematic as far as Blue Cross etc goes.

    1. IL, who has a gun control promoting Dem governor, is letting gun stores stay open as essential. I see a real discrepancy here.

      1. Gee, maybe not all Democrats are gun grabbers. Who knew?

        1. Oh, he is a gun control proponent alright, staunchly so. And you can be a gun control proponent and still not want the political fallout of closing gun stores when everywhere in the state is conservative except Chicago and East St. Louis. Who knew?

          1. Growing up in East St. Louis in the 50s and 60s we were taught that Cook County was the seat of all evil in the world. Which was odd, since ESL could match Chicago for corruption politician for politician.

            1. I actually knew your old congressman, Melvin Price.

              1. Ol’ Mel Price. I was away in the Navy but didn’t he die, get stuffed, and continued to be voted in for a couple more elections?

  6. I don’t think it is at all clear that the 2A creates a favored industry exempt from regulations that apply uniformly across other sectors.

    1. How fucking dishonest are you? No one has ever argued that the 2nd Amendment creates an industry that is exempt from other regulations that apply “uniformly across other sectors.”

      For example, no one argues that uniformly applicable 7% sales taxes should not apply to guns. However, an emergency declaration can not entirely extinguish the exercise of a constitutional right.

    2. Their list of sectors that can stay open is subjective.

      1. Discretionary. The word is discretionary.

        1. Arbitrary. The word is arbitrary.

    3. Repeal the requirement that firearms dealers only can sell to people in person, then. That requirement makes the firearms industry into a disfavored industry subject to regulations that don’t apply uniformly across other sectors.

      1. And this is exactly why I oppose “universal background checks.” If the government requires the use of a government system to exercise the right, all it has to do is shut down that system and the right disappears.

        1. I doubt it. I don’t think the government can make it impossible to exercise a right.

          1. Did you read the column you’re replying to?

            1. I don’t think a temporary emergency measure to combat a deadly disease is quite the same thing as what you were referring to.

              1. Define temporary. And define “emergency.”

                1. In this case, the “emergency” part comes from the fact that the governor is trying to stop the spread of a deadly disease. And once the disease has been contained, the “temporary” part kicks in. I very much doubt that any justice, liberal or conservative, would decide that the measures now in place to combat a specific virus would translate into a permanent closure of gun stores.

                  1. And then what’s to stop some liberal big city Democrat Party mayor from describing general “gun violence” as an emergency and calling for these same measures? Oh yeah, also on a “temporary” basis.

                    1. The fact that the courts have already rejected that argument.

                      If I thought long enough and hard enough I could probably come up with a factual scenario in which gun violence actually did reach emergency proportions and could be stopped by a temporary measure. But neither liberal judges nor conservative judges seem all that inclined to allow gun grabs as a general matter. The idea that this is all just a slippery slope toward confiscation is a fundraising fiction put forth by the NRA.

                    2. You’re kidding, right? They seem very inclined to grab guns, nationwide.

                    3. Which “they” are you referring to? I haven’t denied that gun grabbers do exist; just that they aren’t the entirety (or, in my observation, even a majority) of the Democratic party. The mayor of DC did try banning guns, which is how we got Heller.

                      But the trend is clear: Courts do not accept bans. Reasonable regulation, yes, but not bans.

                      Here’s what you’re really worried about: That guns will become like abortion (since someone else has already used that analogy this morning) in that the right remains in place, but legislatures that would like to ban it whittle away at it one regulation at a time, until it becomes harder and harder to get.

                      I just don’t see it. I’ve been hearing for the last 60 years that “they” are coming after our guns. If anything, the trend seems to be in the opposite direction.

                    4. “The mayor of DC did try banning guns”

                      No, guns WERE banned in DC for decades before the law was finally overturned. And ~every~ Democrat has said they want to reverse Heller… which means that any city could enact the same, complete BAN on guns that DC successfully had and managed.

    4. The amendment does not admit of any exceptions; therefore, a crisis, real or imagined, does not justify any regulations shutting down the manufacture, distribution, and sale of firearms.

  7. The only thing that shocks me about this is that the three dissenters were appointed by Democrats.

    1. Why does that shock you? The idea that Democrats are anti-gun is mostly an NRA fable. Democrats may favor more regulation than you would, but they’re not anti-gun. If they were, they’d have passed anti-gun legislation back in 2009 when they had both houses of Congress and the White House.

      1. Oh, bullshit. Seriously. Democrats are not uniformly anti-gun, that’s true. There are exceptions. But the Democratic party is, institutionally, enormously hostile to the 2nd amendment.

        The couch that hostility in terms of ‘reasonable regulation’, sure, but then along comes a case like Heller, where the Supreme court strikes down literally the most restrictive gun law in the entire country, and they go berserk and vow to overturn it.

        And that tells us what they mean by “reasonable regulation”: Anything up to and including a total ban.

        All that happened back in 2009 is that the Democratic party was still smarting from their last gun control induced defeat, and hadn’t gotten ready to stick their fingers in the fire again. They go through regular cycles of thinking gun control is politically survivable, getting punished in the next election, and staying away from it for a few election cycles. Then it’s back to their one true love, disarming people.

        1. My response to the “reasonable regulation” canard is to ask them for an example of a gun regulation they deem to be “unreasonable.” I never get an answer.

          1. I don’t know whom you’re asking, but I can give you lots of examples of what this Democrat (who supports reasonable regulation) would consider unreasonable:

            A ban on all handguns
            A waiting period longer than 72 hours; in fact I’d say 48 is probably enough
            A flat ban on concealed carry (though there are specific circumstances in which I don’t think CC should be legal)

            There are probably others; those are just the first three that jumped into my mind.

            1. Fine, but your party supports all of the above. They oppose Heller, they support California’s 10 day waiting period (even for a second gun, which is nonsensical), and support the en banc Peruta, which is a flat ban on concealed carry for 99% of people.

              1. You can probably find individual members of my party who support all the above, and oppose Heller, and support California’s prop 10, but “my party” does not. Really, that’s like saying that “Christians” support gay marriage and oppose abortion. In reality, some do, and some don’t, and you can find churches on both sides of those questions.

                1. Yes, your party does. Cut the BS.

                  1. Then perhaps I should ask you the same question in reverse: What would you consider a reasonable and constitutional gun regulation?

                    If your answer is (and I said “if”; I’m not putting words in your mouth) that any regulation is unreasonable and/or unconstitutional, then your claim about “my party” would be correct, but only because of how you’re defining reasonable and unreasonable.

                    1. Lots.

                      – A ban on violent felons possessing firearms is reasonable and constitutional.

                      – A ban on carrying firearms through a metal detector onto a plane or into a courthouse is reasonable constitutional.

                      – A requirement that gun owners take a safety class that is not unduly burdensome is reasonable constitutional.

                    2. OK, so we may not actually be all that far off. I would also ban large magazines, which I suspect we don’t agree about. But the point is, we can have reasonable regulation without confiscation looming in the background. We do with cars and drivers.

                    3. I’m okay with banning large magazines if that ban also applies to civilian law enforcement. If they’re truly weapons of war, only the military should have them, and no on else.

                    4. OK, then we agree about that too. I’m a huge fan of de-militarizing the police. I might make an exception for anti-gang or other units that can show a specific need.

                    5. “we can have reasonable regulation without confiscation looming in the background. ”

                      No… we can’t. Ask Beto. Ask Biden who said he is going to hire Beto to “take care of the gun problem for him.”

                2. Joe Biden Comes Out Against Heller Ruling – The Individual Right to Keep and Bear Arms

                  “During a town hall-style interview with WMUR 9 Thursday, former Vice President and 2020 Democratic Presidential Candidate Joe Biden came out against the Supreme Court’s ruling on District of Columbia v. Heller.

                  “Do you agree with the DC vs Heller decision in regards to protecting the individual right to bear arms that are in common use and which are utilized for lawful purposes?” Biden was asked.

                  “The answer is,” Biden said, “If I were on the Court I wouldn’t make the same ruling. Okay?””

                  Seriously, your party does oppose Heller. And you’re going to run a candidate who wants it overturned.

                  1. Brett:

                    The Democratic party is not a monolith on this or most other issues. Our big tent takes in everyone from AOC/Bernie Sanders to Joe Manchin.

                    Besides which, it is possible — and I suspect this is Biden’s position — to say that Heller is wrong about private ownership being a constitutional right, while at the same time believing in private ownership as a matter of policy. I don’t think it should be illegal to possess a great many things that are not constitutional rights.

                    1. Pre-Heller a city could ~completely and thoroughly~ BAN all firearms from civilian possession.

                      If you disagree with Heller then you agree that cities have that right.

                    2. If you don’t think private ownership is a constitutional right then yiu just plain old don’t believe in the second amendment.

        2. The Democratic Party is not institutionally hostile to the Second Amendment. Bill Clinton and Barack Obama both repeatedly said they supported private gun ownership.

          By the way, did you know the only piece of gun legislation Obama signed during his presidency made it easier to carry guns in national parks?

          And reasonable regulation would be more than just politically survivable if the deck weren’t stacked through anti-democratic measures like the two senator per state rule, gerrymandered house districts and the electoral college. A majority supports gun control. If you want to say that the stacked deck means the NRA can ignore public opinion, fine, but don’t have the chutzpah to claim you have majority support. You don’t.

          1. Yeah, they say all kinds of things. But they believe in “reasonable” and “common sense” regulations that gut the right in its entirety.

            Yes, a majority supports “gun control.” I support some level of “gun control,” as does everyone else. This trope is about as useful as “X percent of people support civil rights.” Okay, fine, but what is a civil right?

          2. The home of the modern gun control movement, which wants almost complete civilian disarmament, is the Democrat party, it’s hard to deny that fact. And conservative Blue Dog Dems, like Rockefeller Republican moderates, are a rare breed these days, so mostly Dems are anti-gun and the GOP pro-gun. Trying to shift things so that if a politician who supports re-election say “I support the 2A but X, Y, Z gun control” as meaning that there is support from the Democrats for the 2A is the worst sophistry.

            Also, Obama prior to running for office was quoted as saying that he didn’t support the civilian possession of guns, and he said that failure to pass gun control was one of their biggest regrets from their time in office. Meanwhile Clinton passed the biggest federal gun control laws since the 1960s. They are not pro-gun in any sense of the phrase.

            1. mad_kalak, “which wants almost complete civilian disarmament” disqualifies anything else you said from being taken seriously either.

              1. I can’t tell if you’re being obtuse of intentionally dishonest.

                1. Both. He knows that the Dems are the party of gun control, but hedges it by saying that not *all* Dems what complete disarmament he thinks he is in the right. That’s the intentional dishonesty.

                  Then because politicians are two-faced on the issue of guns, which he doesn’t acknowledge, and he thinks because he doesn’t want to ban all guns 100% that means he’s still a “2A supporter” (which is logically impossible considering the meaning/purpose of the 2A)….that’s the obtuseness. In his silly mind, you can still be pro-gun, as long as the folks in the hinterlands have grandpa’s double barrel.

              2. The modern gun control movement wants civilian disarmament, and is willing to get there step by tiny step, just like abortion opponents take slice by slice where they can get it. Some choice quotes are below.

                I can’t take you seriously either if you don’t understand that.

                (Note how you elide past everything else I wrote too)

                “Banning guns is an idea whose time has come.” U.S. Senator Joseph Biden, 11/18/93, Associated Press interview

                “Banning guns is an idea whose time has come.” U.S. Senator Joseph Biden, 11/18/93, Associated Press interview

                “We must get rid of all the guns.” Sarah Brady, speaking on behalf of HCI with Sheriff Jay Printz & others on “The Phil Donahue Show” September 1994

                Shannon Watts (head of “Moms Demand Action for Gun Sense”): “@MikeBloomberg and I want guns gone. Period. It doesn’t matter what it takes.” (Twitter, 2014).

                1. I haven’t denied gun grabbers exist, but they’re not the mainstream Democratic party. Sarah Brady and Shannon Watts are not the mainstream of the Democratic party, at least not on this issue.

                  As for the Biden quote, do you have a citation? I’m skeptical he actually said that, and at bare minimum would like to know the context.

                  Look, you’ve heard the saying that if it’s too good to be true it probably isn’t? Well, the opposite is true as well: If it’s too bad to be true, it’s probably a made up story. The left and the right both do it. Each one writes complete fiction about just how bad the other one really is. So when someone comes along with a quotation designed to show that the other side of the aisle is made up of devils and lunatics, there’s a really great possibility the quotation is made up.

                  1. Was Beto, who said “hell yea we are coming to get your guns” to cheers and applause at a Dem debate (to which all the other candidates on the stage agreed to, and which shows that those voters who watch a debate agree) not a mainstream candidate? Did he not almost win Texas and get gobs of media attention and funding?

                    Sarah Brady and Shannon Watts are the heads of the most politically active gun control organizations, the latter of which is funded by major Dem candidate Bloomberg. It’s strong evidence. Would you not agree that the NRA’s comments on Trump would be evidence of a pro-gun stance for the GOP?

                    The Biden quote is all over the internet, and has been since he ran as Obama’s VP. I don’t have it’s original source, perhaps you’d like to find it? Biden, as flexible as Gumby, was more gun controller in the 1990s, before Heller and the now ubiquitous “I support the 2A but nobody needs…” lie we hear from the Left.

                    1. And you can tell how well that worked for Beto by how well his campaign took off after that. Mainstream Democrats are not gun grabbers. Regulators, yes.

                      You’re doing guilt by association, and the fact that something is all over the internet doesn’t mean it’s true. The Ku Klux Klan supported lower taxation; does that mean that everyone who supports lower taxation is a racist? It’s the same argument.

                    2. “And you can tell how well that worked for Beto”

                      Well, it worked well enough that Biden, the presumptive nominee, recently said that the Biden administration intends to put Beto in charge of their gun control efforts.

                    3. Beto’s campaign failed for a lot of reasons. Please, tell me how much of the blame is assigned to his pro-gun control stance?

                      You elide the issue by trying to reframe it as “gun grabbers” vs “regulators.” That doesn’t work, especially when an assault weapons ban being re-imposed is a major Dem platform. Need I give you another Dem quote on gun grabbing, and you can find video of this on YouTube: Feinstein is heard to say, “If I could have gotten 51 votes in the Senate of the United States, for an outright ban, picking up everyone of them (every gun) Mr. and Mrs. America, turn ‘em all in. I would have done it.” That is “gun grabbing” even by your definition.

                      Yes, guilt by association. I admit it. Major gun control organizations funded by Dem billionaires are part of the Dem party coalition, along with party platform that calls for gun control, and major party candidates like Bloomberg and Beto who (to cheers from the party faithful) want to come and get our guns (just assault weapons for the time being). Sounds like they are guilty of being gun grabbers.

                      And please, the KKK was Dems too, but I won’t go there.

                    4. I would really love to see a citation for the claim that Biden is putting Beto in charge of gun control. Even if Biden agreed with Beto on that issue, which I doubt, he knows he needs to carry the swing states. He’s not going to say something that stupid. You really need to read with a bit more skepticism and not believe everything you read on some right wing web site.

                      kalak, I don’t have to reframe it as anything. Confiscation and regulation are not the same thing. If it were, your car would have been gone a long time ago.

                      And whenever someone does guilt by association, I just quit listening. The logical fallacy of guilt by association has a name, by the way; it’s called undistributed middle. It works like this: Hitler did bad things. Hitler was German. Therefore Germans are bad people.

                      You’re ignoring all of the Democratic candidates who do not favor gun confiscation. That includes Biden until proven otherwise, and your argument that it’s on the internet so it must be true isn’t proof.

                    5. Okay Krychek, let me try another approach because, as was said by others, you’re either being ignorantly obtuse or intentionally dishonest. I charitably say you’re being both. I hope you respond, even for someone who “doesn’t have the time” for the fair and just arguments with evidence I have been making, you do keep responding.

                      Answer this as a comparison, is the GOP the party of the pro-life/anti-abortion movement?

                    6. “I would really love to see a citation for the claim that Biden is putting Beto in charge of gun control”

                      Damn, son, can you really be that stupid? Or ignorant?

                      “Joe Biden promises to put Beto O’Rourke in charge of gun control”

                      Moments after former Democratic presidential candidate Beto O’Rourke — who promised in a September debate to take away legally purchased assault rifles if elected — endorsed Joe Biden’s White House run, the former vice president promised to name the Texan as his point man on gun control.

                      “I want to make something clear, I’m going to guarantee you this is not the last you’ve seen of him,” Biden said Monday evening during a campaign rally in Dallas. “You’re going to take care of the gun problem with me. You’re going to be the one who leads this effort.”

                      https://nypost.com/2020/03/03/joe-biden-promises-to-put-beto-orourke-in-charge-of-gun-control/

                    7. Original Jack Burton, Biden said no such thing:

                      https://www.factcheck.org/2020/03/orourke-endorsement-triggers-false-posts-on-bidens-gun-policy/

                      kalak, I would consider the following a fair statement: If you oppose any gun control, you are more likely to get policies you like from Republicans rather than Democrats. And if you support abortion rights, you are more likely to get policies you like from Democrats than from Republicans. But neither party is monolithic; the GOP has Susan Collins and Bill Weld, who support abortion rights, and the Democrats have Bill Casey and Joe Manchin, who support gun rights.

                      But the idea that the Democrats are coming for your guns is no more accurate than the mirror-image claim that the Republicans want to execute women who have abortions. That’s just over the top hype. On both counts.

                      Did I answer your question?

                    8. “Original Jack Burton, Biden said no such thing:”

                      Krycheck, you might want to read your own link. It contains, verbatim, the quote you are saying it debunks.

                    9. I quote Biden accurately…and in context.

                      Kry cites a story that quotes Biden accurately, and identical to my quote. And in context.

                      Kry: “Biden didn’t actually say that”

                      Me: Nothing more needs to be said about Kry. He just explained himself to everyone.

                    10. I did read my own link. Did you read the full context of what he actually said?

                    11. If ~you~ did read the entire article then why did you say he didn’t say what he obviously, and openly said?

                      And the commentary is what someone ~thinks~ he meant be what he said. I prefer going with what he and Beto actually said out of their own mouths. You know, what you denied was said.

    2. The three Massachusetts judges who dissented from the Gay Marriage decision were all appointed by Democrats, while Republicans appointed the other four…

  8. Even the dissent argued a position in a compelling interest framework – that the remedy wasn’t sufficiently tailored – not that it was arbitrary or lacked a rational basis.

    The argument seems dubious. Most of the claimed differences between guns and other articles of commerce requiring certain things to be done in person come solely from operation of law. The dissent didn’t explain why, if the sale of guns is really so important, those laws can’t be modified or suspended.

  9. Blackman : “A functional firearm will be far more useful than a pallet of toilet paper”

    Ah, the wet dream fantasy of every gun nut alive today!

    But if I had to bet, I’d put my money on toilet paper.

    1. You fail basic logic here. A pair of scissors is useful for cutting different things than a knife. Likewise, a function firearms is more useful to save you life in a situation that calls for a gun than all the toilet paper in the world, and likewise, all the guns and ammo in the world won’t help you with your toiletry needs.

      1. Uh huh. We’ll see who’s right. I foresee :

        (1) Gun nuts hunkered down in their bunker, well-armed against brain-eating zombies but doing that two-finger thing.

        (2) Normal people wiping with downy-soft Charmin

        My logic suggest the second option preferable by far…..

        1. So, you double down on your basic logic fail by resorting to a rather unfunny ad hominem. You know, the first rule of holes, is if you find yourself in one, to stop digging.

          As for me, I didn’t buy any more guns or ammo than I already have, which is just a few and some. When I saw that basic social order is being maintained everywhere because food is available and the lights are still on, I see it as unnecessary.

          Seriously, though, the long lines at the gun stores are, from many reports, first time gun buyers. So they are NOT “gun nuts”.

          1. Sigh. Let me explain it to you as simply as possible :

            Thru this calamity & all the way ’til its end, the odds are overwhelming that toilet paper will remain a more useful commodity than guns, and by a twenty-zillion to one margin. Yes, there is a (rather improbable) possibility that Covid 19 will mutate into the Zombie Apocalypse, and well-armed people with messy bottoms will have the last laugh. If that happens I’m prepared to manfully concede I was wrong. I expect the same from you if no Zombie Apocalypse materializes. That’s fair, isn’t it?

            1. “the odds are overwhelming”

              It’s never the odds that are important, it is what is at stake.

              “possibility that Covid 19 will mutate into the Zombie Apocalypse”

              How strange that you deny the possibility of nothing in-between “nothing happening” and “zombie apocalypse”.

  10. “If people can enter a McDonalds to pick up a Big Mac, then people should be able to enter a firearm store, complete the requisite background check process, and get their firearm.”

    Some people can’t resist advancing unqualified assertions where none is needed or warranted.

    Was that observation a legal opinion, a general opinion, or just more partisan polemics from someone desperately trying to climb the Hannity-Shapiro-Limbaugh ladder to the profitable top of the Clingerverse?

    1. Ah, clingerverse… there’s the Artie we have come to know and love (unless it is a mocker, of course.)

      1. You are behind the times on that one, Jack. Artie is no longer with us. Prof. Volokh banned him for making fun of conservatives (or, more accurate, for being too conservative).

        That’s right, Prof. Volokh engages in viewpoint-controlled, partisan censorship . . . when not trying to pass as a champion of free expression.

  11. States are doing this with abortion clinics too. When are you going to write a story about that?

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