PA Governor: Marshmallow Peeps are "Life-Sustaining," production can continue during COVID-19 Emergency

Designating candy as "life-sustaining," but not constitutionally-protected firearms, is irrational

|The Volokh Conspiracy |

Tom Wolf, the Governor of Pennsylvania maintains that licensed firearm dealers are not "life-sustaining" businesses. Therefore, they must shutter during the COVID-19 emergency. But, thankfully, the Peeps factory in Bethlehem, PA can remain open. Yes, the popular marshmallow candy is "life-sustaining."

Regardless of what the nutritional facts are on the side of a box of PEEPS, the marshmallow treat's producers in Bethlehem believe that it's an emotionally healthy necessity and therefore, an essential business.

Just Born, the company behind PEEPS as well as Mike & Ikes, Hot Tamales and more, sent out a statement in the wake of Pennsylvania Governor Tom Wolf's order for all non-life-sustaining businesses to close down in order to stop the spread of coronavirus. Food manufacturing falls into the "life-sustaining" category, which includes PEEPS.

This sort of evidence would help the Supreme Court summarily conclude that the Governor's policy is completely irrational. Caetano v. Massachusetts provides a guide. That case declared unconstitutional Massachusett's ban on stun guns. But the two-page per curiam decision did not wade into Heller's unresolved issues.

Here, the Supreme Court could simply say that Pennsylvania's distinction of what is, and is not "life-sustaining" cannot survive even rational-basis review. Indeed, other states have designated firearm dealers as "essential." Stay tuned.

H/T David Sokasits

Update: The Peeps factory will close on Wednesday. Worry not, they will ship enough marshmallows to retailers.

But don't worry there are still plenty of PEEPS to fill Easter baskets on April 12. All of the marshmallow goodies have already been shipped to retailers, Just Born reports.

The candy maker also has inventory of Mike and Ikes, Hot Tamales and Goldenberg's Peanut Chews for a short-term closure, but some items may go out of stock, the company warns.

"We will continue to work with our retail partners to ensure that the fans of our brands can continue to enjoy them during this challenging time," according to the statement.

The Just Born facilities will close no later than 6:30 a.m. Wednesday and remain closed through at least April 7. The PEEPS and Company Store at the Promenade Shoppes closed March 17 and will remain closed until at least April 7.

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  1. Massachusetts RINO Governor Charlie Baker just did the same thing — gun sales are not on his five page list….
    https://www.mass.gov/doc/covid-19-essential-services/download

    I want to know how a list like this isn’t inherently arbitrary and hence a violation of the 14th Amendment.

    1. By this argument, government can never do anything because anything it could do could be debated and has an element of arbitrariness to it.

      If we were invaded, ordering soldier A to face an attack and soldier B to stay behind and cook the meals is completely arbitrary. A better classification system might have resulted in the reverse order.

      But human actions are inherently imperfect. The 14th Amendment simply does not require perfection. And that means it doesn’t require perfect rationality or perfect freedom from arbitrariness. The fact that you or I might disagree with one or more items on or off the list doesn’t make it a violation of the 14th amendment.

      1. The orders to soldiers come under the UCMJ and are completely different — I’m not going to say exempt from Constitutional protections but essentially, largely so.

        My position is that ANY list is a content-based violation of the 14th Amendment, that the government CAN’T do this.

        So what if it is an “emergency”? The DPRK (North Korea) declared an emergency and is simply shooting anyone with the Wuhan Virus. Is that where you want to go?

        1. Any list in this situation or any list in general? Because either doesn’t make any sense. There are always going to be categories in government. Think about the most basic: convicts stay inside prisons and non-convicts don’t. That’s obviously not a Fourteenth Amendment violation.

          1. Any content based list of similar businesses — note my emphasis on “content based.” Your example of incarceration is completely different because convicts and non-convicts are not — but if Black convicts were in prison and White convicts weren’t, there would be a 14th Amendment issue (and memory is there were).

            My point is that all similar businesses must be treated the same — that there is no “health” reason to shut down gun stores while leaving cigar stores open.

            1. So bakers need capital requirements and bankers need food safety requirements? Or in a health emergency, the government must keep strip clubs open if it doesn’t shut down private hospitals?

              1. All four examples have their own state-issued license (unless the bank is a National bank, where it is a Federal license) and hence all four can be treated differently.

                However, if there is a “boil water” order (due to contamination), all four are under the same order, the bank must disconnect it’s water fountain and coffee machine.

                But retail is retail….

                1. That is ridiculous. There’s obviously a police power to determine essential and non-essential businesses in a pandemic situation.

                  The problem is there’s a constitutional right here. I would be inclined to say that what the state has to do is ensure that law abiding citizens who don’t have a functional weapon can purchase one, or purchase ammunition.

                  However, that doesn’t mean the state can never close a gun shop. Indeed, it doesn’t even mean that a state cannot limit gun purchases. Indeed, there are pretty compelling interests against the stockpiling of ammunition and guns in this situation (both because it could lead to a disruption of public order and violence, and because it could deny ammunition and guns to people who don’t have them, just like any other item in shortage).

        2. They absolutely can be overridden in an emergency.

          That’s why, for example, police can enter a private home without a warrant if they think there’s an ongoing crime or safety hazard. 4th amendment gets overridden in an emergency.

          As WWII cases held, government declare martial law and suspend civil courts and the writ of habeas corpus in an emergency, as it did in Hawaii after Pearl Harbor. It can round citizens up and put them in concentration camps, as it did to citizens of Japanese descent.

          Yes, it can do all these things, and has done so.

          1. So the question actually goes to the other court. If government can suspend all these other things in an emergency, why not 2nd Amendment rights?

            1. “Why not second amendment rights”

              So, generally, in order for the government to suspend or break some rights, they need to have a “good direct reason.” When they suspend right that are only tangential to the reason…you need to ask why are they being suspended. Let’s give you a few examples of what this means.

              1. The right to assembly. An oft forgotten right, but part of the first amendment, this has basically been suspended in many states due to the current epidemic. However, a good, rational reason, under strict scrutiny can be drawn for it. Large groups of people, in close contact, spread the disease more rapidly.

              2. The right to buy a firearm. Tangential, at best. Many stores similar to firearm stores are staying open. We need to ask, is the purpose to limit the disease, or is the government perhaps just trying to limit guns from being purchased, and using the emergency as an excuse.

              3. The right to free and open elections. Elections gather lots of people together in close contact in the polls. Perhaps on November 4th, Trump should order the election cancelled, country-wide. Due to public safety concerns, of course. Trump would of course, have to continue as president until a later date. But suspending these rights due to the emergency would be fine, right?

              1. Where is the “good direct reason” quote coming from?

                1. There is no general right to assembly. You’re ignoring a key condition on the right. And why are you confusing it unnecessarily with “a good, rational reason, under strict scrutiny”? Is it rational-basis or strict scrutiny? If the former, the reason doesn’t have to be “good” it just needs to be rational. If the latter, rational isn’t enough.

                2. You can ask that all you want. It isn’t part of the constitutional analysis unless (maybe) the relevant legislative unit demonstrated animus as a pretext. (Even then, it may not matter.)

                3. Why do you think “Trump would of course, have to continue as president until a later date”? The Constitution is very clear about the length of his term, and it doesn’t have anything to do with a subsequent election. It ends on the 20th day of January, full stop.

                1. 1. This is tiresome wordplay. Yes, there’s a “right of the people peaceably to assemble”.

                  2. Ditto.

                  3. If you’re abrogating other clear constitutional rights due to an Emergency, then increasing the length of Trump’s term due to the Emergency is clearly on the table. That’s the funny thing about throwing Constitutional rights out the window due to an emergency. You need a president. It’s for the public good.

                  1. 1. It’s not tiresome wordplay. The extent of constitutional rights has a profound effect on the rules about how and whether Congress and the states have to justify their decisions. If a right to peaceful assembly is not implicated by a public health order, there’s no strict scrutiny to get into. The third-party doctrine (until Carpenter) said there wasn’t a “search” in the first place. The exigent circumstances exception is different in kind and application to strict scrutiny. These things matter.

                    3. There is already a constitutional and statutory succession plan in place to ensure that there remains a President even after the current one’s term ends, constitutionally, on January 20. The President could also declare himself King, I suppose, but not every use of emergency/strict scrutiny power by the government requires us to assume that an emperor shall be named. If we are going to die falling down that slippery slope, it will be for something more serious than COVID.

                    1. “3. There is already a constitutional and statutory succession plan in place to ensure that there remains a President even after the current one’s term ends, constitutionally, on January 20. ”

                      I didn’t know that! Can you supply the details?

                      (to be clear, I know about the usual pres->veep->speaker etc one, but that’s not what AL is asking about. If you didn’t hold the election, because of an all out nuclear exchange, a solar storm that took out the grid, etc, etc, who becomes the new president after inauguration day? For the sake of argument, let’s assume the speaker was up for election the same year, so the speaker post is as vacant as the pres and veep? Is the theory that you drop into the old administration’s cabinet? That doesn’t seem any more legit than just letting the old president continue.

                      I never thought about it, but I guess AL’s conjecture that the old pres would just keep on until you could hold a new election seems likely to me)

                    2. Re NToJ;

                      1. It’s tiresome wordplay, because the right for peaceful assembly was implied by the “right to assembly”. I have no desire to get into a pedantic discussion when simple concepts cannot be mentioned without needing to be extensively defined.

                      Re Absaroka:

                      That…gets interesting. You know, I hadn’t fully considered it. I thought the House would just impeach the President. But…
                      See, the House (including the Speaker) is elected every 2 years. Those term limits are pretty strictly defined (as is the Presidential term). So, the speaker is up for re-election simultanously. As is the rest of the House. But since there IS no election for the House, they can’t impeach the President. None were actually reelected.

                      So, let’s review. No Election. On January 20th, technically the President’s term is done. Technically the VP’s term is done as well, and he’s no longer VP. Technically the Speaker’s term is ALSO done, and Pelosi is no longer a Representative*. Luckily, in this situation Grassley is still a senator. But, he’s not automatically president pro tempore, because it’s a new session, and the GOP may not have the majority….

                      So, then you go down through the heads of the departments, from Secretary of State down to Homeland Security. By convention, the heads resign or leave. But if one didn’t for whatever reason…

                      There are a few interesting asides here. The President’s term ends on the 20th, but the new Congress meets on the 3rd (of January). So, if a rump Senate met, and chose a new Senate president pro tempore, that person might be president. Alternatively, a subset of Senators might make a quorum impossible…

                      Then you get into the issue of State governors appointing Representatives or Senators due to the current “openings” available. That heavily depends on state law, and all types of interesting things could happen. Of course, some of THOSE governors may not be validly elected….

                    3. “…So, then you go down through the heads of the departments, from Secretary of State down to Homeland Security. By convention, the heads resign or leave. But if one didn’t for whatever reason…”

                      That’s what seems wonky. Putting aside Orange Man, suppose the incumbent was popular – FDR maybe, or whoever. As a practical matter, I just can’t see him saying ‘well, it’s Jan 20, and so it looks like the new pres is whatever random cabinet member, and I’m outta here’. This would only be happening during the most extreme crisis the country has ever seen. I would expect the incumbent pres, and whoever else was left of the government, would just keep on doing what they had been doing, and everyone would go along pending whenever an election could be conducted.

                    4. Absaroka,

                      Actually, it gets even more crazy.
                      -The House requires an election to fill the seats. But the Senate…doesn’t. So, here’s what happens.
                      -The Senate meets on January 3rd, with a Rump senate (65 Senators). Because of the current senate breakdown, and who is up for reelection, that would give the Democrats the majority, then the Presidency. Unless the GOP senators didn’t show up, and then there wouldn’t be a quorum. Which they would do.

                      Then Senators could be appointed by the governors of the various states (Depending on law). Except Montana, New Hampshire, West Virginia, and North Carolina, because they ALSO have governor’s elections that year (D+2). Then you need to consider who the Governors of the various states will actually appoint. IE, would a GOP governor of Massachusetts actually nominate a GOP senator? Would a Democratic Governor in Kansas nominate a Democrat…And would those nominees get nominated, and seated in the Senate in time, before January 20th…

                      It’s crazyness.

                    5. @Absaroka,

                      “I didn’t know that! Can you supply the details?”

                      It would go to the VP first (whose term also ended) then Speaker (whose term also ended) then President pro tempore of the Senate. That role has traditionally gone to the most senior member of the majority party in the Senate. Assuming the Senate kept its rules, it would go the most senior member of whichever party has the most senators after 1/3rd of them are out but not replaced by elections. It gets a bit complicated since some of those states would be able to fill vacancies through appointment by the governor, but eventually we’d know who the majority party is in the senate, and that party’s most senior member would serve as President under the Presidential Succession Act of 1947.

                2. “3. Why do you think “Trump would of course, have to continue as president until a later date”? The Constitution is very clear about the length of his term, and it doesn’t have anything to do with a subsequent election. It ends on the 20th day of January, full stop.”

                  What do you think the “Continuity of Government” plan is if we were nuked? Yes….

                  1. AL may want to look at what happened in Maine in 1879 — two legislatures, two governors, and but for Joshua Chamberlain, it would have turned into a shooting war.

      2. There’s rather a lot of difference between “it could be debated” and “it’s completely arbitrary”. The government is allowed some deference in its decisions. It is allowed less deference to things that infringe enumerated rights. This ban doesn’t even pass the very loose ‘rational basis’ standard.

        1. Exactly, the “rational basis” part — and what rational basis is there for banning some forms of retail but not others? This is the government saying that it thinks that people buying some items are more important than other things, nothing more.

          1. There is a rational basis for closing, for some period, retail stores, with some exceptions.

            The basis is not,

            “Gun stores need to close because they are especially dangerous right now.”

            It is,

            “Continuing to operate businesses where people gather is dangerous, so only those deemed essential can do so.”

            It’s not gun shops that are being singled out. It’s food stores and the like.

            Now, you may think gun shops are essential. Lots of people here do, but that’s a different argument.

            Blackman’s presentation is deceptive.

            1. NOPE

              Gun stores are deemed essential.

            2. What’s deceptive is how you base whether something is essential or not on the product itself and not the market. Okay, so the store isn’t essential. How about the manufacturers? The raw materials? Logistics and supply chain? Marketing? Where do you draw the line? The point is that you can’t draw the line. Everything is essential. The proper response is to quarantine the elderly and immunocompromised, provide guidance for navigating stores, etc. If it’s safe enough to go buy groceries, it’s safe enough to buy a gun. It’s arguably safer because there are fewer people and stores are less crowded.

              Maybe you don’t think Constitutional rights like 2A are essential either. Because I would love to know how you’re supposed to use your 2A rights when you can’t buy a gun anywhere.

            3. Given some of the egregious things that are listed as “essential”, there is no rational reason to believe that the decision to allow them but disallow gun stores was made in good faith.

              1. As I said, the argument about whether gun shops are essential is different than one about what does or does not violate the 14th Amendment.

                So too is the argument about whether this was done in good faith.

                1. No, it’s not. The 14th Amendment guarantees equal protection under the law. That means that there should not be arbitrary, capricious or bad faith laws. If a similarly pretextual law were attempted in the context of race, you’d have no trouble seeing through it.

      3. By this argument, government can never do anything because anything it could do could be debated and has an element of arbitrariness to it.

        If only The People had specified certain areas, vital to them, that the power hungry may not trod on.

        Damn, that could be useful. Someone should try it.

    2. “Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products.”

      Like the manufacture of bark mulch is “essential”, but gun sales are not. And of course:

      “Workers that provide services for or determine eligibility for public benefits such as subsidized health care,food and feeding programs, residential and congregate care programs, shelter, in-home supportive services, child welfare, juvenile justice programs, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members).”[emphasis added]

      1. I can imagine a person who thinks bark mulch manufacturing is more important to the government than retail gun sales. If you are arguing that legislatures have no power to shut down retail gun stores at all, just make that argument. But if they are, it isn’t SCOTUS’s place to micromanage which retail services are essential or non-essential.

    3. I want to know how a list like this isn’t inherently arbitrary and hence a violation of the 14th Amendment.

      Because guns aren’t people, and thus are not guaranteed the equal protection of the laws?

      1. But the persons wishing to buy them are.

        What rational basis is there for claiming a health benefit from closing gun stores but not pot stores when both are identical retail environments (with gun stores having fewer customers per hour).

        1. So what?

          Everyone is being treated equally. Gun shops are closed. Nobody can buy a gun.

          If the health department closes my favorite restaurant for code violations it’s not discriminating against me because I like to eat there.

          1. But if the state only allows real traditional marriage, it discriminates against someone who doesn’t like people of the opposite sex?

          2. So what? Everybody is being treated equal. Newspapers and TV stations are closed.

  2. Last time I checked the only things firearms were good for was the destruction of life.

    Have we really gotten to the point where people are so twisting reason that adherence to their ideological predilections trumps even the dictionary meaning of words?

    Why, yes we have.

    It’s not even my way or the highway. It’s my way or the lunatic asylum.

    You could argue that the 2nd Amendment involves a compelling interest and a pandemic isn’t a sufficient compelling interest or a ban isn’t sufficiently narrowly tailored. You’d be running against precedent – The 2nd Amendment might be at most a heightened interest, and courts have traditionally given authorities a fair amount of leeway in articulating responses to pandemics.

    But to argue rational basis? Really?

    Words have loose meanings. “Food” is clearly necessary for life. But it has to have some boundary. Candy is arguably within it. One can always disagree with classifications at the margins. Every classification system is like that.

    But that hardly makes the classification irrational. Whether candy really ought to be classified as a food for this purpose or not, guns certainly aren’t a good.

    1. Guns certainly aren’t a food.

      1. Guns PROVIDE food….

        1. On the same scale as food production? How many pounds of food will be generated by newly produced handguns?

          1. Depends on your taste for long pork

          2. How many pounds of food will be generated by newly produced handguns?

            The People removed that judgement call from the purview of government. We don’t have to justify it to government.

    2. Last time you checked was wrong. There are several million defensive gun uses every year, most of which involve just scaring the would-be malfeasors away.

      1. But the defensive use is premised on its ability to destroy human (or animal) life. Guns make destroying life easier. That’s their function. Just because it can be used to ward off threats doesn’t make it any less true. If guns did not exist at all, killing would probably be more difficult for everyone.

        1. Including rabid animals.
          Including Coyotes that attack children. (Yes, it happens.)

        2. Government is premised on the ability to destroy human life. That’s what it comes down to, even for the smallest most inane regulation, even not bringing library books back on time.

          We agree. Government is not essential.

          1. Although it does have the monopoly on legitimate violence, government could function without guns, and usually does so. And unlike guns, destroying lives is not its reason for existence although it does have that power.

            1. The idea that government has a monopoly on legitimate violence is a strongly contested model of the state, which is violently in contrast to the principles OUR government was founded on.

              No, government can’t function without weapons. It doesn’t have to use violence at every moment, but that’s only because the threat of violence is an understood element in every command the government issues.

              Take away the government’s threat of violence, and people will cease paying it any attention.

            2. Government without the means to commit violence? What part of coercive do you not understand?

              “destroying lives is not its reason for existence” — are you serious? Governments were instituted to wage war. That is their raison d’etre. Try a little history sometime.

              400 million guns in this country and only 3000 or so murders (unless you want to count gang-on-gang and suicides). Death is not their purpose.

              1. That 3000 comment is wrong. What’s your basis for it. With suicides that number is well over 30000 in the United States. (Also why wouldn’t gang-on-gang count? They’re charged as murder.)

                “War made the state and the state made war” Charles Tilly said that in reference to state formation in Early Modern Europe. It certainly has historical support that the war-making in the early modern period resulted in the creation of centralized bureaucracies to sustain such efforts. But the historical creation of the modern state bureaucracy is not determinative of the reason for their continued existence. The purposes of the state, or what the state even is, has been the subject of extensive commentary. Political theorists don’t typically believe that the only reason for the state is war and war making.

                1. “That 3000 comment is wrong.”

                  Assuming one gun for each murder (which is low, but makes for easy math) you are correct. 0.0000075 murders per gun is wrong, it’s actually 0.000075. Feel better?

            3. Sorry but that is silly. No government ever, in the history of planet Earth, has existed without weapons to defend itself and enforce its mandates. As in, 0 percent of them. It’s an empty set.
              The fact that the force doesn’t have to be used because of the deterrent effect of people knowing that the government has the weapons to use, if necessary, is irrelevant.
              If people opposed to the government knew that it did NOT possess weapons, well then said government would not exist in the long term, anywhere, ever.

              1. Maybe it is silly. But maybe it wouldn’t be if people stopped accepting routine violence, state or otherwise, as a part of life.

                1. As long as we’re changing human nature, can we decide to rewrite other laws of nature, too? Can we just make gravity a little less so my feet don’t hurt anymore? Or maybe change the speed of light?

                2. If you really need to signal your virtue so bad, why don’t you put a sign in your front yard: GUN FREE HOME! I DEPEND ON THE POLICE TO PROTECT ME.

                  And thank you for being a warehouse to the unprepared out there.

            4. “Government could function without guns”….

              IRS. “Pay your taxes”
              Person. “No”
              IRS: “OK, we’re going to put you in jail”
              Person: “Just try it”
              IRS tries…
              Person shoots IRS enforcement agents.
              Person: “Now what?”
              IRS: “Seize the bank accounts!”
              Person: “Hell no. Give me my money back”
              IRS: “No”
              Person: -walks into IRS, shoots people, takes money back.

              1. Or you could seek and obtain a civil judgment, garnish accounts or paychecks, and place a lien on any property encumbering its ability to be sold and diminishing the credit of the recalcitrant taxpayer.

                1. And if the recalcitrant taxpayer makes a cash sale?

                  It all comes down to violence sooner or later.

                2. Person: “Civil judgement? Here’s my Colt-45 judge. Just try to judge against me. And if you do…well, you won’t survive to enter it into the register”.

                  1. That’s not how judgments work and you know it.

                    1. Without the implicit threat of violence, yeah, actually that is exactly how it would work. Your civil judgements and liens have no effect unless they are enforceable including being enforceable against someone who is willing to threaten to use force to resist.

                    2. That’s not how they work NOW because the Government can, will, and does use weapons, force, and guns to restrain anyone who tries these tactics.

                      In your hypothesized world where the Government can’t use guns, weapons or other force…That is exactly what would happen. There are no civil judgements against someone who is willing and able to use lethal force to prevent being judged against.

        3. If guns did not exist at all, killing would probably be more difficult for everyone.

          You got that and probably don’t even understand it. “God made man, Sam Colt made them equal.”

          Without guns, it was brute force for one aspect, and leisure time to practice for another. In other words, nobility and the rich and the professional criminals ruled by might makes right. Is that the world you want to return to? Grandma can defend herself with a gun. Do you want to prevent that? 90 pound women can defend themselves against 200 pound would-be rapists. Do you want to prevent that?

          Why do you hate decentralization of power? Is it because you think only government and the rich should have that power?

          1. Guns don’t solve the might makes right problem. They make it worse. Anyone can become a mass killer with ease now. And the well-armed society doesn’t actually stop that. None of the victims at the Las Vegas shooting could have saved themselves with a gun. Expecting teachers and students to suddenly switch from class to shooting back during an attack before any victims exist isn’t realistic. Same with expecting people to switch from prayer to shooting while defending themselves in Church. And consider Dayton: the cop was on the scene, and responded. Nine people still died within sixty seconds.

            So sure. Guns are an equalizer. Now everyone has the ability to be a mass killer. Rich, poor, doesn’t matter. Everyone can kill a lot of people very quickly and very easily, and the ubiquitous presence of guns in the hands of others does not seem to deter anyone from doing so.

            1. What part of “might makes right” do you not understand? When a 90 year uses a gun to defend against a 20 year old burglar or rapist, which side has that might, and which wins?

              1. You’d be surprised. Shotguns come in (smaller) 20 gauge, too.

              2. What part don’t you? When Adam Lanza has a semi-automatic rifle and body armor and a kindergartner is in class which wins? Or when Roof has a handgun while people are praying? Who wins? Or when Paddock is on the 32d floor with a rifle while there are people below at a concert? Who wins?

                1. Let’s see how that works.

                  Grandma vs 200 pound rapist. Might makes right.

                  Grandma with gun vs 200 pound rapist with gun. Chance. Better than might makes right.

                  Or your example. Adult man in kindergarten class. Strangles kids, bashes ’em against walls, stomps ’em, kills them all. Might makes right.

                  Adult man with sword or knife in kindergarten class. Nope, still dead children. Might makes right.

                  Adult man with gun in kindergarten class. Still wins, a little faster. Might makes right.

                  Let’s try a different example. Only government has guns. Might makes right. Citizens have guns: government goons have to be a little more careful. Democratization spreads the power.

                  What point do you think you are making? What is wrong with equalization?

                  1. The point I’m making is that there is no equal relationship when the person with the gun decides to start shooting.

                    1. There is when other people are shooting back.

                      Guns are the great equalizer.

                    2. Explain how someone at the Las Vegas concert “shooting back” would have helped.

                    3. Interesting fact. There was a security guard right outside the Las Vegas Shooter’s hotel room before the shooter opened fire on the crowd. (Inside the hotel). And in fact, he took fire from the shooter before the LV shooter opened up on the crowd.

                      Now…if that security guard had a fire arm. And if he fired back….

                      A lot of lives would’ve been saved

                    4. If civilians or security could easily acquire, openly carry, and use certain rifles and machine guns without fear of reprisal, I can think of a lot of ways how shooting back would have helped. Give one guard some training and a SAW and he would have suppressed Paddock and probably killed him without even trying.

                2. Not mentioned is the extent to which the school psychologist might have actually provoked all of this. Same thing with Virginia Tech where they refuse to release the perp’s judicial file, even though FERPA expires with the student’s death. It’s like abusing a dog and then the dog gets loose and mauls people — yes, it’s a dangerous dog, but who made it one?

                  Same thing with Columbine — those two perps had been badly bullied, and that’s what drove them to do what they did. People tend to forget that.

                  HOWEVER, you’re more likely to be killed by lightning.

              3. If the 20 year old burglar or rapist has a gun, probably the 20 year old burglar or rapist with the gun.

            2. You claim that everyone has the ability to be a mass murderer because of guns. Yet there are hundreds of millions of guns, at least a hundred million gun owners, and only 3000 murders a year.

              How many people can you kill with a car — ban them!

              How many people can you kill with a 20 pound propane bottle — ban them!

              How many people can you kill with a chainsaw — ban them!

              Get real.

              1. Cars, propane, and chainsaws all have other functions, and aren’t specifically designed to kill. Guns are. T

                Also 3000? In 2017, according to Pew, there were 14542 gun related homicides.

                Strong attachment to guns in the face of gun deaths demonstrates at best a complete lack of empathy for the victims, their families, and their communities. At worst it is an attachment to violence itself.

                After each mass shooting it becomes increasingly clear that there is no number that is too high. No bodies are too many. I mean do you even have a theoretical number where you might consider gun control? 100,000? 1,000,000? 10,000,000?

                Or more close to home: how many funerals would be too many? How many autopsy photos of dead kids could you look at? Exploded organs? Crying family and friends? Is there an upper limit?

                I know you’re just going to accuse me of being emotional, but I frankly don’t care. Humans are emotional beings. They should consider the emotional impact of the things they endorse and support on other people. It is the moral thing to do. Routinely brushing it aside as simply the cost of freedom isn’t good enough.

                1. 2/3 or more of the gun homicides were gang on gang. Get some education. I;m surprised you didn’t include the 20,000 suicides.

                  1. They would be charged as murders and the victims are humans. Why don’t they count?

                    1. Let’s start with the fact that there are laws preventing felons from owning firearms. How do those laws do?

                2. Strong hatred of guns in the face of several million successful defensive gun uses a year shows a strong disregard for reality.

                  Strong hatred of people defending themselves, and expecting them instead to call 9-1-1 when seconds count, shows a string disregard for individual responsibility.

                  1. So what is your top level number of gun violence victims?

                    1. Depends. How much is freedom worth to you?

                    2. My freedom to have instruments of death at my ready disposal is worth zero to me.

                    3. I asked how much your freedom was worth, period. IE, total. Not your freedom in a very select point.

                  2. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf — the notion of several million defensive gun uses a year is Exhibit A for disregard of reality.

                    For 30+ years I have lived in a town of ~ 12,000 residents. Your “statistic” suggests that during that time more than 3,000 defensive gun uses—more than 100 per year—have been happening around me, and in all that time I never knew it.

                    I work with a retired ex-cop, who grew up in the town. He seems to be able to describe the inside of practically every house in town. Over the years, he arrested a fair percentage of the town’s population, on one charge or another. Sometimes I talk to him about gun issues. He never knew about all that defensive gun use either.

                    The very good local newspaper, which is all over the police beat, has never reported this phenomenon you mention. I don’t remember a single instance, although I must have missed some. I did not miss hundreds of such reports, let alone thousands.

                    I have a good friend who owns and operates the school bus company. His office is the best source of inside information (read gossip) in the town. His many-year-veteran drivers are all locals, like the cop, and they hear stuff about every household on their runs. Over the years, that adds up to almost every house in town. You could sit in that school bus office for a year, listening to gossip, and never hear about even one defensive gun use, that year, or any previous year.

                    No doubt, from time to time, there is a defensive gun use in my town, and I don’t hear about it. But on the scale you suggest? Not possible. Not even close to possible. It’s nonsense, cooked up by professional pro-gun advocates, and marketed by a pro-gun lobby looking for suckers. You fell for it.

                    And by the way, I myself have been repeatedly targeted, before moving to where I now live, by “defensive” gun users. Twice, they were cops just trying to do their jobs, and momentarily getting it wrong. And twice they were foolish gun owners wielding pistols—maybe committing assaults, actually—but under a completely unjustified mis-impression that I was some kind of threat. Both times, I was confronted by someone pointing a gun at me as they opened the door to my knock, without a word passing between us beforehand. Their was zero previous contact between me and one of them. The other had just moved into an available bedroom in the home we shared with a mutual friend. Defensive gun uses, both of them, of course. Problem was, these folks were defending against someone, or something in their personal history, or something in their mind maybe, which was not me. Who knows how much of that happens? But it is all reportable when the defensive gun use survey guy calls.

                    There was another instance, where someone distant and unseen actually fired what I took to be (fully automatic) warning shots into a path in front of me, to persuade me to turn back. Of course I did. Was that a defensive gun use? Was it a felony? You decide. I was in a remote location in the mountains, maybe approaching a guarded marijuana patch, but that’s just a guess. There was some of that going around.

                    I don’t count the time a paranoid schizophrenic actually shot at me repeatedly. He ranted that I was an agent of the FBI and the CIA, put in the building to spy on him. He was my landlord’s agent. I had knocked on his door to ask for a spare key. Had anyone ever called him to get data for a survey on defensive gun uses, you had better believe my case would have come up.

                    And, of course, because I was for a time a newspaper reporter, I covered a fair number of stories about “defensive” gun uses which went wrong—one, which prosecutors judged fully justified, nevertheless killed a drunk who probably did not need to die. He had gone to a wrong address, and displayed too much aggression because he mistakenly thought his runaway girlfriend had gone there ahead of him. Another case involved a grandmother, whose car was shotgunned in a back alley, by a pawnshop owner, after an armed robbery of his store. After getting pistol whipped, the pawnshop owner thought the robber might have escaped into the alley, so he grabbed his behind-the-counter shotgun, and pursued. The grandmother happened to be driving down the alley toward the adrenalized robbery victim.

                    See? Chaos. With guns. And a lot of it retrospectively justifiable as, “defensive gun use”—at least in the judgment of the perpetrators themselves—who are the folks survey takers rely on.

                    Years ago this board featured comments from a guy who expressed nervousness about the kinds of folks he might meet at the end of his rural driveway, when he went out to collect the mail from his box. So he explained that he made it a point always to go armed, just in case. I suppose that amounted to 5 defensive gun uses per week, more or less. Do you think that counts as running up the score? My guess? When the survey guy calls, a lot of concealed carriers report every time they go armed as a defensive gun use. That is certainly what is on their mind, as they are happy to tell you. So why not?

                3. After each murder by an illegal or a legal Hispanic it becomes increasingly clear that there is no number that is too high. No bodies are too many. I mean do you even have a theoretical number where you might consider immigration reform? 100,000? 1,000,000? 10,000,000?

                  Or more close to home: how many funerals would be too many? How many autopsy photos of dead kids could you look at? Exploded organs? Crying family and friends? Is there an upper limit?

            3. How about the Texas church?

              And you are more likely to be hit by lightning than be shot in one of the (relatively FEW) mass shootings. Fists, knives & cars are far more dangerous.

              1. Okay. Tell that to every family member of the victims. Go to the next mass shooting memorial and say that.

                1. Why don’t you, personally, visit the several million people a year who use guns to defend themselves? Tell then they didn’t need the gun, that they would have been better off calling 9-1-1 to bring in some government guns to supervise cleanup of their dead body.

                  1. Out of how many of these incidents was the defensive use used in response to a gun?

                  2. There are not several million DGU’s a year.

                2. I want you to tell every family member of HIV victims that they’re sacrificial lambs so that homosexual men can practice their craft with impunity.

    3. It’s called the “Bill of RIGHTS”, and if the Second can be ignored in “an emergency”, then why not the Fourth, Fifth, and or Eighth?

      WHY can’t Trump simply set up machine guns along the Mexican border (as Mexico has done on its southern border) and shoot everyone attempting to illegally enter the country? Hey, it’s an “emergency” and we don’t want sick people crossing the border…

      And you do know that the Trump administration is attempting to abolish the Writ of Habeas Corpus — because of “the emergency.” Do you support *that*?!?

      You are making the “half pregnant” argument — it is either OK to ignore the US Constitution because of an “emergency” or it isn’t — but if you ignore part of it, you ignore all of it.

      BTW: Are you familiar with how Cuba contained AIDS? If you are, somehow I suspect you aren’t in agreement with doing that….

      1. No one is saying you can’t keep or bear the arms at the moment, There is simply a temporary pause on manufacturing. In a country with more guns than people, accessing them for those who want them should not be that difficult.

        1. Any content based list of similar businesses — note my emphasis on “content based.” Your example of incarceration is completely different because convicts and non-convicts are not — but if Black convicts were in prison and White convicts weren’t, there would be a 14th Amendment issue (and memory is there were).

          My point is that all similar businesses must be treated the same — that there is no “health” reason to shut down gun stores while leaving cigar stores open.

          1. And I’m only talking about gun SALES, not manufacturing (which is shut down).

        2. ” In a country with more guns than people, accessing them for those who want them should not be that difficult.”

          That’s true in some states – people who didn’t have the foresight to get one ahead of time can borrow from a neighbor. But it’s not true in the states that require all transfers to be done via FFLs, if the FFLs have been forced to close.

          1. OR is there a “necessity” defense to failing to go through the FFL?

            I wonder how SCOTUS would rule on THAT…

      2. “WHY can’t Trump simply set up machine guns along the Mexican border (as Mexico has done on its southern border) and shoot everyone attempting to illegally enter the country?”

        Actually, he could.

        1. A good reminder that under some interpretations of the Constitution, nothing prevents the government from mass exterminations of certain undesirable groups.

          1. Under almost any interpretation of the Constitution, using military force to repel invasions is permitted.

            1. Sooooo could the military set up extermination camps for illegal immigrants?

              1. “Repel”

                1. I mean it would repel them would it not?

            2. using military force to repel invasions is permitted.

              “Invasion.” What a load.

              Here’s a clue, Brett. Someone trying to enter a country and live peacefully is not an “invader,” even if the country would like to stop them. Not in any rational sense of the word.

              Stop stoking hatred.

              1. Sure he is. And most of them are not trying to live peacefully. They’re trying to live on taxpayer money.

              2. It depends on *how* they enter the country, to make that distinction, to use the word rationally, as you say.

                1. Well, they are not coming in tanks, carrying rifles, if that’s what you mean.

                  If you mean that sneaking in makes them invaders you’re wrong, just parroting RW BS.

                  1. No, but their “citizen” children vote Democrat Party in 18 years, and thus are voting to steal our money. That’s not “peaceful.”

        2. There wouldn’t be an injunction???

      3. See my comment above. Essentially any right can be overridden in an emergency. In World War II, the United States declared martial law and suspended the writ of Habeas corpus in Hawaii. And it put people of Japanese descent in concentration camps.

        The things it’s allowed to do in a pandemic can be just as drastic.

        1. Korematsu is no longer good law.

        2. ReaderY….You made great points. I agree with one exception. To me, if such a thing has to happen, there are certain characteristics that must be met before suspending our constitutional rights.
          – there must be a bona fide national emergency
          – the threat to the nation must be obvious and severe
          – the suspension must be temporary and time-bound

          In the People’s Republic of NJ, our right to assembly, right to worship unhindered, right to freely travel, right to bear arms have all been restricted, or severely hindered. The nature of the emergency we have is obvious and severe. The restrictions put into place by the Governor are temporary, and time-bound. So I am Ok on a very short term basis with the restriction.

          The United States did not place Japanese into concentration camps; the Japanese were sent to internment camps. The use of ‘concentration camp’ is a loaded term that I don’t think applies to the US (meaning, when I hear the term concentration camp, I immediately recall images from WWII). That clearly never happened to the Japanese here in the US.

    4. I think you are grossly underestimating the increased need for self defense caused by the current ‘crisis’. There was already an increase of smash-and-grab robberies in places like Chicago *before* the ‘stay at home’ order was handed down. With even fewer (no?) people in many stores after the order, and with the economy death spiraling, expect looting and other crime to spike within a month.

      Self-defense becomes more important in a crisis. What’s your plan for when your safety is threatened? Call the police? They have no duty to actually protect your safety.

      1. I think we are all underestimating the increase in crime that your imagination tells you will materialize in the future.

  3. It’s food. There’s a rational basis for allowing food production to continue ahead of just about anything else. And it’s not illogical for the government to decline to decide what foods are so nutritionally unimportant as to shut down production. Peeps, while nutritional junk, are loaded with calories.

    I think you could come up with better examples, such as allowing recreational cannabis stores to remain open.

    1. What it really points out is the irrationality of central planning, and the stupidity and infelixibility of government in general. Government may be good for some things, but it is not good at emulating the markets it has corrupted and destroyed.

    2. OK, from the Taxachusetts list:
      “…road and line clearing and utility relocation…”

      The routine trimming of trees/brush and relocating (not replacing) telephone poles. This is not essential (hint, it isn’t done in the snow).

      “Workers who support the operation, maintenance and public safety of state parks, forests, wildlife management areas…”

      And counting the Loons really doesn’t quite meet that criteria, either. NB: Policing (i.e. “public safety”), yes — but putting up trail markers and raking leaves?!?!

      1. I’m with you on the parks, etc.

        Perhaps you are unfamiliar with Massachusetts weather, and particularly with northeasters, which remain a threat through April. Prolonged power outages—which you get when you don’t keep the lines clear—are probably worth guarding against in a pandemic. The lines serving my town run for long distances through the woods. They used to keep that clear. Then they didn’t. Multi-day outages followed, frequently.

        1. Routine, not emergency — and you really want to do it after the trees have their spring growth spurt. And relocating (not replacing) poles?!?

  4. Well, duh, peeps are a food group…..

    No seriously, I could possibly see that shutting down peeps would mean the gov’t has to parse which food type items are necessary, and which are not.

    As far as guns being a necessity, if they are a necessity, then probably money is quickly on its way out as meaningful, and this is all over, and I don’t see any of that coming. If you are spending limited funds on another gun, you are really not the sharpest tool in the drawer

    I think even without most business closures, this is pretty moot.
    My phone isn’t ringing, and I unlocked the door so UPS can shove stuff through, but not much coming

    1. OK, what if Alabama or Texas were to ban abortion on an “emergency” basis — it could be justified…

      THAT is why you should be concerned about this…

      1. Ohio’s attorney general is attempting this.

        Clingers gonna cling.

        As much as the losers of the culture war will get to do anything they prefer.

        1. Is it really any different from banning gun sales because a politician hates guns, I mean judges them not essential?

        2. Ohio’s attorney general is attempting this.

          Love it….

          Maybe now the left will understand why they need to defend the 2A….

      2. Texas and Ohio already issued orders suspending non-essential medical procedures.

    2. “If you are spending limited funds on another gun,”

      FWIW, the RUMINT I hear is that the people standing in line are mostly first time buyers. Apparently a lot of them are shocked to hear that there are waiting periods and paperwork and so on, because they have always heard how easy it is to buy a gun. Lotsa people acquiring an education, apparently.

  5. You’re killing it with right-wing cranks, Prof. Blackman, but wrecking prospects for respect or achievement in the American mainstream.

    I see Gov. Wolf periodically. I will consider whether to pass along your criticisms as he attempts to manage current circumstances. . . but if he requests the insights of an obscure, inexperienced professor from a third-rate law school, I’ll be sure to provide the information and give you credit.

    1. Eh, I think Prof. Blackman’s relentless self-promotion may have lifted past “obscure” (at least among law professors). I believe a major periodical recently published an op ed of his, for instance.

      1. He’s a hit with fringe audiences, but I doubt mainstream audiences find him (or his opinions, at least so far) memorable.

        1. Look out, Bernstein, Blackman’s in your rearview mirror and gaining!

        2. He’s a hit with fringe audiences, but I doubt mainstream audiences find him (or his opinions, at least so far) memorable.

          “Fringe audiences” elected Trump….

      2. I believe a major periodical recently published an op ed of his, for instance.

        I heard a rumor about that. Plus he started a “news cycle.” Or maybe it was a motorcycle. I don’t remember exactly.

    2. Fuck off, slaver.

      1. Watch it. Prof. Volokh disapproves that type of language — from some commenters, at least — and has demonstrated he is willing to censor.

        I’d hate to see you muzzled. Presentation of unvarnished conservative views is important, so your compliance with the stated civility standards is important.

  6. Where is the link for Gov. Wolf’s statement that marshmallow peeps are life sustaining? The headline, as written, indicates the governor made such a statement specifically pertaining to Peeps, but I can’t seem to find it.

    1. Perhaps Josh is being intentionally misleading here?

      1. To be clear, the Governor of Pennsylvania never actually said that Marshmallow Peeps are “life-sustaining.”

        Blackman writes, “But, thankfully, the Peeps factory in Bethlehem, PA can remain open. Yes, the popular marshmallow candy is “life-sustaining.” (emphasis added) The embedded link is to an article about a press release issued by Just Born, the company that produces Peeps. In the press release, Just Born claims that confectioneries fall under the food manufacturing category, and food manufacturing is considered life sustaining under the Governor’s order. Therefore, Just Born, the company that manufacturers Peeps, is the one claiming that it can continue operation because it is classified under a “life-sustaining” category.

        From what I can see, the Governor Wolf has made no statement or specific ruling about Just Born continuing operation. The company itself has asserted that it will continue operation.

        Blogging misinformation during a viral outbreak to advance a political argument. That should definitely help Blackman’s career.

        1. “Blogging misinformation…”

          I’ll post the link to the governor’s list again. Note that the filename is “…Life-Sustaining-Business.pdf”.

          Then look at the section for Manufacturing->Food Manufacturing->Sugar and Confectionery Product Manufacturing and see whether those can continue to operate. As of now, that’s a ‘Yes’ (along with liquor stores, breweries, etc, listed elsewhere in the document).

          1. It is, because Josh tries to attribute the thing about Peeps to the Governor. But what the Governor actually did was simply not split hairs on food manufacturing. If he closed confectioneries for instance, is he also closing cookie production? Muffins? Donuts? Cakes? Anything sweet? What about businesses that do sweets and something else?

            1. What we have here is an unbalance of supply and demand. There is :

              (1) Gun nuts need for their addictive “fix” of paranoia, righteousness, and rage.

              (2) Actual threats to the Second Amendment, however tenuous or improbable.

              Obviously, the supply from the latter comes nowhere close to fulfilling the demand of the former. That’s where the creativity of someone like Professor Blackman comes in. He satisfies his customer base.

              1. It may not come close, but we are several steps closer down the slippery slope. And arguably over the line on Bill of Rights absolutist statements on said rights.

                A few days back I wondered rhetorically why they couldn’t close news and tv stations using the exact same argument. The response from a law professor? They could, for the most part.

                That’s where I part with all these emergency statement justifications. History shows it’s the emergencies, where leaders take on superpowers to lord over people, that cause loss of democracy and freedom because the leaders never give it up.

        2. It was more of a rhetorical question. 🙂

          And I don’t know about your last point. I think it would certainly help with getting a judicial nomination recommendation from a certain senior Texas Senator…

  7. No taking aim at my peeps 🙂

    1. Don’t worry, they can’t be killed. Not by bullets. Not by HCl. Not by sulphuric acid. The things are darn near invulnerable.

  8. Keep talking, gun nuts. ‘Peeps vs. pistols’ is surely a winning argument for you in the American mainstream, especially when advanced in current conditions.

    Still thinking about whether to bring Prof. Blackman’s concerns to Gov. Wolf’s attention.

  9. Governor Wolf’s 5 page list of industrial categories which is color-coded red (closed) and green (ok to open) explicitly contains confectioners as “ok to open”.
    On the other hand, sporting goods stores and firearms dealers are not ok.

    In the same list, BTW, tobacco stores are not ok, but marijuana stores are ok.

    1. Tobacco — which is legal, and marijuana which is NOT….

      1. Tobacco is a harmful indulgence . . . marijuana is recognized as medicine.

        Other than that, great comment.

        1. Or it’s the same reason liquor store remain open. Because the people wouldn’t stand for it very long.

          Oh, I’m sorry. You were believing the sophistry of all of this. My bad.

          1. People aren’t going to stand for this very long. I’m thinking maybe through Friday…

  10. I am shocked that nobody has referenced this thus far, in either threads, as it sets a federal precedent for this. There are state level equivalents, in Texas and other places:

    “In 2006…President George W. Bush signed into law the Department of Homeland Security Appropriations Act…..The amendment prohibits persons acting under color of federal law, receiving federal funds, or acting at the direction of a federal employee from seizing or authorizing the seizure of lawfully-possessed firearms or imposing or enforcing certain restrictions on firearms during a state of emergency.”

    1. Note, this was passed after the gun confiscations during Katrina. And moreover even during WWII when we were locking up those of Japanese ancestry in the USA, Congress in giving vast powers to FDR for the war effort, excluded guns as well.

      In 1941 when Congress was giving President Franklin Roosevelt the right to requisition property for the war effort with the Property Requisition Act, which was written to explicitly exclude firearms. It said:
      Nothing contained in this Act shall be construed:
      1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law), … [or]
      2) to impair or infringe in any manner the right of any individual to keep and bear arms.

      1. I thought Obama was confiscating all the guns?
        I was told it was imminent.
        But I’ve been out of town.

        1. He woulda if he coulda, Brother. These things called elections and divided government and courts stopped him.

  11. “Update: The Peeps factory will close on Wednesday.”

    Other than that, great post!

  12. That’s ridiculous. Yes, a rule that said peeps were explicitly exempted *by name* but not firearms might fail rational basis but the rule in question is that food production is essential and *of course* there is a rational basis for that rule (people die if they don’t get food regularly).

    Your argument amounts to saying that because any rule you propose doesn’t get it right in every last case it fails the rational basis test even if no other rule would work better (eg it’s complex and time consuming to create and administer a nutritional value based distinction).

    I mean watch this. Consider a law demanding every citizen get vaccinated. On it’s face it surely passes a rational basis test but your argument would lead us to the opposite conclusion because you can identify some mountain man who never interacts with any other human whom it doesn’t make sense to vaccinate.

    It’s the articulated rule that one applies rational basis to not the most absurd instance of its application. All laws either miss conduct that should be included or include conduct that should be omitted. That’s the nature or a rule rather than a standard.

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