Judge Orders Reopening of Gun Sales in Massachusetts

|The Volokh Conspiracy |

From Reuters (Nate Raymond), reports that U.S. District Judge Douglas Woodlock has held that the closing of gun stores (part of a broader closing of many businesses) was an "improper burden" on Second Amendment rights:

The judge said he would direct the state to allow firearm retailers to re-open by noon on Saturday under a series of restrictions meant to promote cleanliness and social distancing. A lawyer for the state indicated it may appeal.

The story is based on Judge Woodlock's oral statement from the bench, but I expect there to be a written order shortly; I hope to blog about it then. Thanks to commenter Dr. Ed for the pointer.

UPDATE: Here's the order:

Following two hearings, (this day and on May 4, 2020) regarding the plaintiffs' request for interlocutory injunctive relief and after consideration of the parties' evidentiary and other submissions to date, for the reasons stated during and reflected in the stenographer's record of the proceedings, it is hereby

ORDERED that:

[1.] Firearms dealers licensed pursuant to Mass. Gen. L. ch. 140, § 122 shall be permitted to conduct sales of firearms and other goods, and may sell ammunition if licensed pursuant to Mass. Gen. L. ch. 140, § 122B, by appointment only, with not more than four appointments per hour. Such firearms dealers are limited to operating only during the period 9:00 a.m. and 9:00 p.m. daily, subject to any further land use limitations imposed by the local government in the jurisdiction where the premises are located as are currently in force.

[2.] Firearms dealers subject to this Order shall ensure that the following proper social distancing and public health and safety measures are observed in the conduct of their business under this Order:

[(a)] Ensuring that all employees and customers cover their noses and mouths with a mask or cloth face covering;

[(b)] Allowing access to hand-washing facilities for customers and employees and allowing employees sufficient break time to wash hands between appointments;

[(c)] Providing alcohol-based wipes to customers and employees, if available;

[(d)] Establishing procedures to ensure that customers remain at least six feet apart from each other at all times, both inside and outside the business premises;

[(e)] Providing full or partial glass or plastic barriers, if feasible between employee areas behind counters or areas open to customers;

[(f)] Establishing procedures to sanitize frequent touchpoints throughout the day, including point of sale terminals and registers;

[(g)] Establishing procedures to sanitize any merchandise that is handled by customers, but is not purchased and taken away by the customer;

[(h)] Establishing procedures to sanitize any merchandise that is handled by customers, but is not purchased and taken away by the customer;

[(i)] Establishing procedures under which:

[1.] employees and other personnel who are sick shall not return to work without compliance with medically prescribed quarantine procedures; and to the extent they have symptoms of COVID-19 while at work are sent home immediately;

[2.] customers who have symptoms of COVID-19 are requested not to enter the premises; and

[(j)] Establishing such other procedures that the business deems necessary to limit the spread of the virus that causes COVID-19.

[3.] The terms of this Order will take effect at 12:00 p.m., Saturday May 9, 2020 in order to allow for notice by Commonwealth public safety officials to licensees, licensing authorities, state and local law enforcement officials, and members of the public.

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  1. This really isn’t a surprise. If it goes up the the Circuit Court will be interesting to see what they do with it. And if they reverse I wonder if the Supreme Court will take it up. There are certainly four votes on the SC to get more aggressive with the Second Amendment docket. Seems like this would be “low hanging fruit” for a quick per curium.

    I don’t think it is far flung constitutional interpretation to find that if you have a right to a firearm the government can’t shut down avenues by which yo can legally buy, transfer, or sell those firearms. Maybe the argument “we are in the middle of a pandemic” would have flown for a few weeks, but most of these shutdown orders are going on two months old now. And as I said earlier (backed by the TX Supreme Court) as time goes on and the exigency of these shutdown orders begin to fade they are going to face increased scrutiny from the courts.

    1. MA AG Martha Healey (D) is very much anti-gun and quite likely will appeal, and don’t forget that Massachusetts’ “may issue” is on the SCOTUS docket(?) — this could get interesting.

      That said, I see this as a 14th Amendment issue — our purported Republican Governor is being totally arbitrary and capricious with no apparent logical basis for what he has ordered shut down. Gun stores could be open — but only sell to cops. Yes…

      He has outright prohibited gatherings of more than 10 people and is prosecuting a Worcester minister for having more than that in his church. All high school and college graduations have been cancelled. Yet, yesterday, some 250 state troopers could have their graduation, and while they stood six feet apart, they didn’t march out that way.

      Likewise, he’s imposed a $300 fine for not wearing a mask — and guess who didn’t wear one. Do as I say, not as I do….
      https://turtleboysports.com/charlie-baker-was-the-only-asshole-not-wearing-a-mask-at-state-police-graduation-despite-new-law-mandating-masks/

    2. ” There are certainly four votes on the SC to get more aggressive with the Second Amendment docket.”

      There are also certainly four votes on the SC to curtail 2nd amendment rights under any circumstances or pretext that becomes available. So the real question is, where’s that 5th vote right now? I think neither side is sure, and neither side wants to get saddled with an adverse precedent.

      1. I’d rather get adverse precedent than the status quoa. If Roberts wants to vote with the liberals so he continues getting invites to the Georgetown (hopefully socially distanced!) cocktail party circuit, then let him say so.

        1. The problem is that precedents against the RKBA are likely to be a lot “stickier” than precedents in its favor, because the left really doesn’t give a bucket of warm spit about precedents anyway. If they get a majority on their side, they’ll likely just overturn them.

      2. Right now we have an answer from the lower courts. It is the 2nd Amendment is a lesser right. Until the SC provides other answers that will persist to be the reality. If the answer the SC gives is that it is some lesser right well then we are just in the same boat. Holding that line only matters if Trump (or another Republican) gets to name another liberal seat or two. Given that November is maybe only 30-40 percent chance Trump gets elected I don’t know if it is worth holding the line at “no answer” for another ten years.

        1. I don’t know why support for enumerated rights doesn’t count as, at the very least, necessary, like supermarkets or pharmacies. That weighting of importance was deliberately removed from the purview of politicians.

  2. The governor of Massachusetts has announced the reopening of golf courses. Guns and clubs: good times!

    1. But banned golf carts.

      Middle-aged men who have gotten little (if any) exercise since last fall now having to walk the entire course (and carry their clubs). Can you say “fatal heart attacks”???

      The Feds are investigating Baker for the Holyoke Soldier’s Home fiasco, and that’s going to get interesting….

      1. And Howie Carr just told the backstory on the golf courses. Seems that they hired a high-priced lobbyist yesterday, and then today….

        This state really is that corrupt….

      2. If someone isn’t sure they can complete a round of gold without dying, not having a golf cart may not be their biggest issue.

      3. I predict lack of exercise will turn out to be the cause of the mysterious drop in hospital visits for strokes and heart attacks, moreso than fear of the virus.

        In the short run, sitting around benefits people at the edge of triggering an attack, even if in the long run their chances may increase. It’s like a mild winter where few fatsos try to shovel the driveway.

  3. President Trump should order the arrest of Charlie Faker a/k/a Too Tall Deval along with governors Cuomo, Lamont, Mills, Murphy, Newsom, and that fat fuck, Pritzker. In a free society, any public sector actor who becomes visibly intoxicated with power, must be stopped.

    1. He should also order the arrest of anti-Constitution judges, and throw them all in a room and inject them with COVID.

      1. So they get the flu.

      2. I’d be happy with this being implemented:
        https://www.justice.gov/opa/page/file/1271456/download

    2. Growing number of wanna be authoritarians willing to have the state kill people on behalf of liberty on this website.

      1. Are you referring the full on achtung liberal governors that are suppressing citizen’s liberties?

        1. They’re posting on this website?

          1. Achtung liberal governors are far too busy harassing small business owners and private citizens to post here.

    3. Charlie Faker and PayToPlay Polito well may wind up indicted before this is all over.

  4. There should be no right of appeal for any state actor after an individual right has been vindicated. In fact, I see now such right granted to any state actor in the constitution.

    Moreover, in a free and civilized society, why would one condone the proposition that the state should have another opportunity to deprive or impair the exercise of a natural right?

  5. Advocating the arrest of governors who have ordered businesses shuttered, imposed lockdowns, forbade assembly, interfered with the ability to keep and bear arms, prohibited religious practice, promulgated panic, and ordained the donning of fear masks is somehow, in your warped mind, “authoritarians willing to have the state kill people on behalf of liberty.”

    1. I find it ironic that liberals screamed about “fascism” for the last four years, but when the second came for them to actually seize power they went full of nazi drunk with power.

      1. Inebriated with power.

        Note how Sarcastro deliberately distorts.

        1. It is his MO to conflate and inflate what you say in order to fit it into his narrative. It is a standard tactic used by the intellectual dishonest class.

      2. I find it ironic that liberals screamed about “fascism” for the last four years, but when the second came for them to actually seize power they went full of nazi drunk with power.

        “So this is how Liberty dies — with thunderous applause.” — Padme

        It’s not a few guys with guns historically that overthrow freedom. It’s the free giving their leaders emergency power to deal with something, and they never give it up. This may be the primary thing to learn from history.

        Even if necessary in this case (and we’re already seeing memeshift from not overwhelming hospitals to saving your life directly, and politicians using that shift to their control advantage) the ease with which they slide into this role with little or no concern for the amount of power they’ve inhaled should scare the hell out of anyone.

  6. It is worth noting that the liberals who act with indignation to the suggestion that maybe elected officials (democrats in this case) who are actively suppressing civil liberties ought to be held accountable are right now over at Twitter calling for the summary arrest and execution of those two guys down in Georgia. That and they never seem to have a moral compass when George Zimmerman pops into the news and people make statements that say they wouldn’t mind it if he met his untimely demise. Or the media never seems to cover when a Trump supporter is assaulted for wearing a MAGA hat.

    Anyway, just funny how that works out….

    1. You appear to be taking my comments above and conflating me with some randos on twitter to white knight some other posters who I dinged for their authoritarian power fantasies.

      Sorry, not one who wishes death on anyone. Nor do I advocate for cutting off the funding of courts whose rulings I disagree with. Nor am I for injecting my opposition with COVID.

      1. To you arrest = death threat (despite the fact arrest is clearly a formal process used to institute criminal proceedings.) Hence why no one takes you seriously.

  7. They have none of these strict anti-infection rules in place for any other business in Massachusetts. Why is this? How is this fair?

  8. I’m amused that the order’s 2(g) and 2(h) are exact duplicates. 🙂 Everyone in law on a deadline these days, everyone taking a risk of being a little sloppy. (The error does not particularly bother me, to be clear — I just find it amusing, and another sign that judges are fallible humans like the rest of us.)

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