Guns

Pennsylvania Governor Reverses Course, Exempts Some Firearms Transactions from General Lockdown

|The Volokh Conspiracy |

The new policy, updated this afternoon, continues to include sporting goods stores, alongside very many other establishments, on a long list of closed businesses, but adds:

Except that firearms dealers may operate physical businesses on a limited basis to complete only the portions of a sale/transfer that must be conducted in-person under the law,subject to the following restrictions: 1) all such sale/transfers will be conducted by individual appointment during limited hours only so as to minimize social interactions and congregating of persons; 2) the dealer will comply with social distancing, sanitization of applicable area between appointments, and other mitigation measures to protect its employees and the public.

For more on the controversy, and on the view of 3 Pennsylvania Supreme Court Justices (all Democrats, incidentally), see Josh Blackman's post from two days ago; here's an excerpt from that opinion:

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 ["The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."]. 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 self-defense" thus "burden[ing] conduct protected by the Second Amendment").

I hope to blog tomorrow about the similar controversies that have arisen with regard to restrictions on abortion clinics in Texas and Ohio.

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  1. Where the similarity is somewhat limited by the fact that, unlike the right to keep and bear arms, the ‘right’ to an abortion is a judicial invention unanchored in any constitutional text.

    As an invention of judges, judges, perversely, are much more motivated to defend it.

    1. I support abortion rights, but unenumerated rights should not carry greater weight than enumerated ones. Ideally, equal.

  2. Again, I ask if the concept of “necessity”, in a declared “emergency”, serve as a defense to a charge of failing to transfer a firearm through a FFL? And is THAT why the Governor backed down?

    As to abortion, I’d argue that abortion providers are licensed MDs who could practice general medicine in an dire emergency, much as patent attorneys could represent defendants at arraignment in the case of mass arrests. If a state bans *all* elective surgeries to conserve medical resources in an emergency, why should surgical abortions be treated differently?

    1. The military can draft Doctors, qua MDs, in time of war — and did during Korea.
      Can the government demand a MD cease his practice, be it breast enhancement or abortion, and instead treat Wuhan Virus patients? Why not?

      And if not, can the government deny it necessary medical supplies that the government thinks are needed more elsewhere — and/or confiscate the ones they already have???

    2. Because abortions have limited sell-by dates, so to speak.

      Amputating a gangrenous leg might not be as urgent as restarting a heart, but it does have some room for delay. Would you recommend delay for the sake of delay, just because it’s not an emergency *right now*?

      1. Because they aren’t life threatening in most cases? Because it’s important to preserve medical resources and staff for the rush of Covid cases? Because if they’re delaying cancer surgeries procedures to preserve resources, then perhaps an elective abortion isn’t quite as important as saving someone else’s life?

        1. And perhaps they are more important than cosmetic surgery.

          There is no “urgent/elective” black line.

          1. We are well past the cosmetic surgery line. And past the purely elective line. We’re into the grey area where “We can delay a little, but not too long, otherwise it’ll become life threatening” line.

      2. Sepsis is measured in hours, pregnancy is measured in weeks.
        Which do you think is more time-critical?!?

  3. A friend who did/does politics in PA said Wolf was basically told to do this ASAP for fear from the gun grabbers that the US Supreme Court would quickly reverse and issue a pro-Second Amendment per curium. Now it is clearly moot and I don’t think the USSC would have found it too difficult to find that some form of a less restrictive means tests needed to be utilized in this case instead of an outright ban.

    1. Told by whom? My observations of Gov, Wolf during this problem incline me to believe your friend is uninformed and wrong.

      Perhaps the current Supreme Court would override a governor’s emergency order to placate gun nuts. One more reason enlargement of the Court next year would be welcomed by most Americans.

    2. So, you’re saying Wolf did it not because it was the right thing to do, but because the anti-gun lobby thought if he didn’t, it would result in a pro-second amendment decision from the SCOTUS?

      And the anti-gun lobby didn’t want another pro-gun decision from the SCOTUS?

      1. I do not know whether it is “the right thing” to do; I doubt it, though. It seems a judgment call.

        I sense Gov. Wolf decided it was a reasonable decision, in the context of making a substantial number of adjustments to the emergency measures as he attempts to manage a serious problem.

        There are plenty of gun nuts in Pennsylvania — much of the state, the sparsely populated stretch between Philadelphia and Pittsburgh, might as well be in Kentucky or Mississippi, and part of the state is in Appalachia — but I doubt concerns about gun absolutism control Gov. Wolf, whose support derives from the majority of Pennsylvanians who reside in the relatively small (but densely populated) sections of the Commonwealth that feature successful cities, strong universities, strong economies, educated workforces, and general modernity.

        There are plenty of governors — in the can’t-keep-up states, especially — who would open the gun stores reflexively. Gov. Wolf is not among them, to his — and Pennsylvania’s — credit.

        1. Kirkland claims to support the right to keep and bear arms, but routinely denigrates those who seek to exercise it. Completely shutting down the right to purchase firearms is absolutely untenable. Give up the pretense.

          1. I believe our constitution entitles an American to possess a reasonable firearm for self-defense in the home. (I tend to reach that point following the Amar path, rather than by simplistic application of the Second Amendment, consequent to the logical gymnastics associated with the latter course.)

            I denigrate gun absolutists, who tend to be disaffected, stale-thinking, right-wing cranks who deserve the treatment they have sustained in our culture war.

            1. It’s been hilarious watching those “successful cities” grind to a halt from a coofer bug.

          2. Kirkland supports the right to keep & bear arms as long as no one ever does. I must admit that I kinda feel the same way about abortion, which is why I keep using it as an analogy.

        2. “…the majority of Pennsylvanians who reside in the relatively small (but densely populated) sections of the Commonwealth that feature successful cities, strong universities, strong economies, educated workforces, and general modernity.”

          While I’d generally ignore this — and the larger unintended problems created by the Baker v. Carr decision — I’d like to point out that the Wuhan Virus is changing this, on two levels.

          First, Federal Law states that the Census is where someone is on April 1 and this not only includes 19.9 college students now living with their parents (mostly in surburbia) but all the people who have gone to their summer residences.

          My guess is that this includes a lot of people in Pennsylvania who have relocated to the more rural parts of the states — and that this will be reflected in the mandated 2021 redistricting of your state legislature.

          Second, living in these cities tends to suck — traffic congestion, expensive housing, crime and general hassles. Much as the automobile allowed people to flee to the suburbs post WW-II while keeping their lucrative city jobs, if work-at-home pans out, they are going to chose to live on the more pacific farm or in the rural town instead of the gritty city. Likewise higher education, if this continues to the fall (or could), I can’t see parents paying thousands upon thousands of dollars to have Junior sitting at home….

          And you HAD a strong economy. Right now, not so much…

    3. This shows how important it is to have pro-2A attorneys able & willing to go to SCOTUS so it becomes a credible threat.

      That’s why the overwhelming level of leftist political ideology in most law schools today should be of concern to all.

  4. There is nothing ‘incidental’ about a liberal judge upholding blatantly unconstitutional restrictions on the 2nd Amendment.

    1. No, the incidental part was that the Republican appointed judges ruled in favor of the restriction, and the three dissents were appointed by Democrats.

  5. This was the correct decision by Governor Wolf.

    1. It was a reasonable decision. A gun absolutist (clinger) would consider it “the correct” decision.

  6. “Except that firearms dealers may operate physical businesses on a limited basis to complete only the portions of a sale/transfer that must be conducted in-person under the law,subject to the following restrictions: 1) all such sale/transfers will be conducted by individual appointment during limited hours only so as to minimize social interactions and congregating of persons”

    What exactly does this mean? The only portion of a sale that MUST be conducted in person is the filling out the 4473 and the NICS check. This exception seems to be contemplating online/person to person transfers, and not the gun stores selling their own stock. Otherwise, the discussing and purchasing of the gun would have to be done elsewhere.

    1. “The only portion of a sale that MUST be conducted in person is the filling out the 4473 and the NICS check.” — and the physical transfer of the weapon.

      I presume gun shops have web pages advertising their inventory, much like car dealers do — and as you clearly aren’t firing the weapon in the store, they have to have some sort of return/warranty policy for defective weapons.

      So I call them up and say “I want to buy one of the M1 Garland rifles that you are advertising for price $X”, and they say “sure, how does 11 AM tomorrow sound to you.” And I show up there/then and do the paperwork, give them my credit card to process, and they give me my new gun. (I could give them the credit card number by phone if that was an issue, but I *think* payment must be made in person.)

      In any case, that’s me buying store stock.

      Now as to ammunition, that’s another story but I believe PA allows it to be sold online and delivered by UPS, and likewise suspect it is sold in a lot of hardware stores and such. Back when Maine still had Sunday closure (blue) laws, it was routinely sold in drug stores.

      1. “I presume gun shops have web pages advertising their inventory, much like car dealers do —”

        In general, most don’t. The big ones – Cabelas or whatever – do.

        ” and as you clearly aren’t firing the weapon in the store, they have to have some sort of return/warranty policy for defective weapons.”

        In general, the procedure for new guns is you send defective ones back to the manufacturer for repair. The retailer can’t just take it back or exchange like a toaster because of the paperwork. Some will help you out by shipping it for you, which is less of a hassle for them than you.

        I’m sure there are exceptions, but IMHE that’s the general rule.

  7. My objection to Professor Blackman’s post was his use of rational basis as the basis of his argument. Clearly the emergency order passes rational basis.

    As I said in my comment to his post, there is a reasonable argument to be made that under a compelling interest or even intermediate scrutiny framework, less drastic measures are available and the rule isn’t sufficiently narrowly tailored to pass muster. The dissent in the Pennsylvania Supreme Court used insufficiently narrow tailoring, not rational basis, as the rationale behind their dissent.

    1. The government basically always prevails if its actions are subject to rational basis analysis; “Rational basis” is more of a “Not gibbering insanity” basis in reality. If somebody could think the government’s actions reasonable without having to be chewing the furniture mad, the government wins.

    2. “Rational basis” is basically a rubber stamp. Almost anything will be upheld under “rational basis”.

  8. “I hope to blog tomorrow about the similar controversies that have arisen with regard to restrictions on abortion clinics in Texas and Ohio.”

    The problem with guns, abortion, and several other subjects is that to prohibitionists, “reasonable regulation” is prohibition, and prohibitionists never let an emotional crisis go to waste, usually to promote useless laws with unintended consequences

    1. So true.

      Judges should know better.

      But too many do not.

  9. Here’s another shut-down situation: https://www.newsobserver.com/news/coronavirus/article241467601.html
    Wake County sheriff suspends pistol, concealed-carry permit applications as demand surges

    In NC a pistol purchase permit is required for purchase from a dealer or a private party.

  10. Respectfully, Professor Volokh, there are:

    West Coast Hotel v. Parrish
    Keyishian v. Board of Regents of the University of the State of New York
    Lawrence v. Texas
    Loving v. Virginia
    Citizens United
    Mapp v. Ohio
    Brown v. Board of Education

    SCOTUS *has* reversed itself, and it did so because lawyers argued that it should. Roe was decided in 1973 by men whose sole (and quite limited) knowledge of pregnancy involved their own wives pregnancies some 30-50 years earlier.

    Back in 1973, men routinely died of fatal heart attacks in parking lots — that was pre-CPR and a lot of other things. Prematurely born children routinely died — there was no neonatal care or anything like we have it today. And none of the diagnostic equipment.

    We can now see a fetal heartbeat — something that NO ONE had the ability to see in 1973, nor even know existed. We can see an infant attempt to avoid the abortionist’s tools, something else that no one knew of back then. We have the ability to see things, and hence know things we didn’t then — even as to the ability of a premie to survive outside of the mother’s womb.

    Hence, I argue, if one were to take the actual text of the Roe decision and apply it to medical knowledge circa 2020, the decision’s own standards would mandate a reversal, or at least a ban on anything other than first trimester abortions.

    And Lawrence v. Texas can’t be seen as anything other than a change in social values.

    1. Ooops, this was supposed to appear somewhere else.

  11. So, is it safe to say that in PA, Peeps are on a par with perps?

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