One Win, One Loss for Second Amendment Claims in the Epidemic

A federal court in Connecticut struck down a policy that effectively stopped gun purchases; a week ago, a federal court in California upheld such a policy.

|The Volokh Conspiracy |

[1.] In Altman v. County of Santa Clara (N.D. Cal.) (Jon Tigar, J.), decided a week ago, the court basically concluded that the Santa Clara County lockdown of "non-essential businesses," which included gun stores, didn't violate the Second Amendment, in large party because it was just a "waiting period":

[T]he Order is not the equivalent of the handgun ban in Heller[, but] … effectively bans most residents of Alameda County from purchasing handguns for the limited duration of the Order. Plaintiffs argue that the Court should treat the ban as permanent given that the latest Order "ha[s] no end date and can be renewed and revised infinitum per [its] own terms." But Alameda County's May 18 Order imposes clear and well-defined criteria for its termination, requiring the County's health officer to "continually review whether modifications to the Order are warranted" based on progress on certain enumerated, empirical "COVID-19 Indicators" [and modifications have indeed been made] …. The same reasoning leads the Court to conclude that the Order does not effect a "plain, palpable invasion" of Plaintiffs' Second Amendment rights [the test suggested for epidemic emergencies by Jacobson v. Massachusetts (1905)].

The court also noted that, "the Order, … unlike the handgun ban in Heller, is facially neutral" rather than singling out gun stores for special restrictions. Partly because of these factors, the court concluded that the order should be evaluated only "intermediate scrutiny," which the Order passed:

Intermediate scrutiny is a two-step test that requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective."  "[I]ntermediate scrutiny does not require the least restrictive means of furthering a given end." The government must "show only that the regulation 'promotes a substantial government interest that would be achieved less effectively absent the regulation.'" "The test is not a strict one," but "requires only that the law be 'substantially related to the important government interest ….'"

The stated objective of the Orders is "to slow the spread of COVID-19." Defendants' second stated objective—conserving health care resources—follows naturally from this first goal….

As for fit, every resident of Alameda County is a potential vector for COVID-19. Defendants have produced evidence that any decrease in human contact and in-person interaction helps slow the virus's spread, and thus that any exception to the shelter-in-place order makes the order less effective at achieving its goal. This evidence forecloses Plaintiffs' argument that allowing firearms and ammunition retailers to operate under social distancing and sanitation guidelines would constitute a less restrictive alternative that would further Defendants' goals. According to the evidence Defendants have submitted, adding these retailers to the list of essential businesses exempted from the Order would "increase[] the risks of community transmission" even when social distancing protocols are followed, as those protocols "lower[] but do[] not eliminate the increased transmission risks." And even if this alternative did further the County's goals, "intermediate scrutiny does not require the least restrictive means of furthering a given end."

Plaintiffs further argue that the Order "inconsistently pursues" Defendants' goals because it is "so pierced by exemptions and inconsistencies that [they] cannot hope to exonerate [it]." … [But] Defendants here have offered a "convincing reason" for exempting the essential businesses enumerated in the Orders. See ECF No. 46-7 ¶ 11 (explaining that exempted businesses "such as grocery stores, pharmacies, laundromats/dry cleaners, and hardware stores are deemed essential because they provide for the basic needs of residents for food, medicine, hygiene, and shelter. If people have no opportunity to wash their clothes, they can get fleas and ticks, which can spread other infectious diseases, such as flea-borne (murine) typhus and trench fever. And hardware stores provide supplies needed to maintain shelter, such as heat, indoor plumbing, and refrigeration, that will require maintenance and repair to keep them working."). Perhaps a different governmental entity could conclude that firearms and ammunition retailers and shooting ranges are essential, and some have. [But] the efficacy of the Order is not "undermine[d]" or "counteract[ed]" by the exclusion of firearms and ammunition retailers from the list….

[2.] On the other hand, the Connecticut decision posted today (Connecticut Citizens Defense League v. Lamont (D. Conn.) (Jeffrey Alker Meyer, J.), issued a preliminary injunction against a Connecticut policy that effectively blocked many gun purchases:

In Connecticut, you cannot acquire, possess, or carry a handgun without a state permit or certificate. To get a permit or certificate, you must go to the local police or the Connecticut Department of Emergency Services and Public Protection ("DESPP") to have an officer there collect your fingerprints for purposes of a criminal background check.

Under Connecticut law, employees for the local police and DESPP may not refuse to collect the fingerprints of a person who seeks to apply for a handgun permit or certificate. In light of the exigencies of the COVID-19 pandemic, however, the Governor of Connecticut issued an executive order nearly three months ago that indefinitely suspends this law for so long as the COVID-19 emergency may continue. The executive order leaves it to the discretion of state and local police whether to conduct fingerprinting, thus empowering the police to functionally deny the right of new applicants to acquire, carry, and possess a handgun. Consistent with the Governor's order, DESPP and some unknown number of police departments have suspended all fingerprint collection activities that the law used to require them to do….

The Governor's Executive Order No. 7E and the Commissioner's implementation of the order plainly burden conduct protected by the Second Amendment. Because these actions result in the suspension of fingerprinting while not suspending the statutes that make fingerprinting necessary to issuance of a handgun permit or certificate, they categorically foreclose a person who does not already have a permit or certification from acquiring a handgun if the person's fingerprints are not already on file. One cannot exercise the right to possess a handgun in the home for self-defense if one is prevented from acquiring a handgun in the first place….

The court rejected the "temporary delay" argument (explicitly as to the question whether plaintiffs have standing to challenge the policy, and implicitly as to the constitutionality of the policy):

Nor is there any merit to the arguments of the Governor and the Commissioner that a "temporary delay" occasioned by the suspension of fingerprinting does not result in injury. If the Governor and the Commissioner were to issue a gag order barring plaintiffs from exercising their First Amendment free speech rights for the balance of the COVID-19 crisis, plaintiffs would surely suffer injury despite the "temporary" nature of the crisis. The same holds true for plaintiffs' exercise of their Second Amendment rights.

And the court concluded that the policy would fail intermediate scrutiny:

I need not choose between whether intermediate or strict scrutiny applies here, because the indefinite suspension of fingerprinting that is essential to the issuance of a pistol permit does not meet even the lower standard of intermediate scrutiny.

To withstand intermediate scrutiny, a law must generally be "substantially related to the achievement of an important governmental interest." The "fit" between the challenged action and the governmental interest need not be "perfect" but must be "substantial" with "reasonable inferences based on substantial evidence." Thus, in a case "implicating the core of the Second Amendment right," the Seventh Circuit has applied intermediate scrutiny to require a municipality to "establish a close fit between the [firing] range ban and the actual public interests it serves, and also that the public's interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights."

To begin, there is no doubt that the Governor and the Commissioner have a compellingly important government interest: protection of law enforcement personnel, permit applicants, and Connecticut residents generally from infection by the COVID-19 virus…. Still, as the Supreme Court recognized in Jacobson v. Massachusetts, the courts retain a role to examine the use of governmental power even during a public health emergency, for "an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."

In other words, just as "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004), the COVID-19 crisis does not mean that government officials have limitless discretion to intrude on the rights of the people. Nevertheless, courts owe great deference to the protective measures ordered by government officials in response to the COVID-19 crisis, not simply because the virus has lethal consequences but also because the virus acts in unknown ways that engender uncertainty about what scope of protective measures are warranted. See S. Bay United Pentecostal Church v. Newsom, — S.Ct. —, 2020 WL 2813056 (2020) (Roberts, C.J., concurring) (discussing the need for deferential judicial review of COVID-19 protection measures).

Even granting these principles of deference and even granting the wisdom of the decisions of the Governor and the Commissioner to initially suspend all fingerprinting at the outset of the COVID-19 pandemic, the Governor and the Commissioner have not shown that there continues to be a substantial fit between the goal of protecting people from COVID-19 and a suspension of all fingerprinting collection requirements. The fact that the four police chief defendants have resumed fingerprinting activities and that the Commissioner has stated his intent for DESPP to resume fingerprinting activities on June 15 is powerful evidence that the ongoing suspension of fingerprinting has become needlessly overbroad—that it does not continue to be a reasonable and substantial fit to the necessity of protecting public health in light of alternative and available protective measures for the police to use when collecting an applicant's fingerprints.

Indeed, the Commissioner himself in one of his affidavits lists available protective measures that would be less overbroad than a shutdown of the permitting process. Doc. #58-17 at 4-5 (¶ 24) (scheduled appointments, limited hours and days of operation, temperature checks, plexi-glass barriers, social distancing between waiting applicants, use of masks and protective personal equipment, and sanitization between uses of equipment). These are the types of protective measures that have already been approved by the Governor and put into operation across broad sectors of the state economy, including even for business activities involving close and extended personal interaction such as at hair salons and barbershops. What is expected from a barber or hair stylist is not too much to expect from a police officer in the service of allowing the people to exercise their constitutional rights. The police continue to routinely collect fingerprints from arrestees, and there is no showing why collecting fingerprints from those who seek to exercise their constitutional rights is categorically too hazardous to allow for the indefinite future.

The U.S. Constitution permits the States to set out a procedural road to lawful handgun ownership, rather than simply allowing anyone to acquire and carry a gun. See Kachalsky v. Cty. of Westchester, 701 F.3d 81, 98 (2d Cir. 2012). That road may be long. See Silvester v. Harris, 843 F.3d 816, 828 (9th Cir. 2016) (upholding waiting period). It may be narrow. See Jimenez, 895 F.3d 237 (upholding ban on firearm possession by persons dishonorably discharged from the military for felony-equivalent conduct). It may even have tolls. See Kwong v. Bloomberg, 723 F.3d 160, 167-69 (2d Cir. 2013) (upholding handgun licensing fee). But it may not be built only to be indefinitely closed down when there are evident alternatives to achieve the government's countervailing compelling interest.

That is what has happened here by means of suspending the requirement that the police collect an applicant's fingerprints while still demanding such fingerprints for approval of a handgun permit. Plaintiffs have shown a clear and substantial likelihood of success on the merits of their Second Amendment claim.

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  1. I am sure the court would rule the same if the order shut down all press and social media.
    Because people get germs from phones and newspapers all the time.

    1. Except that it’s been well understood for a long time that the First Amendment isn’t absolute. I can’t shout under your bedroom window through a bullhorn at midnight, for example, or publish nuclear launch codes, even though both of those activities are speech.

      Well, the Second Amendment isn’t absolute either. So let’s run with your analogy. Let’s allow the same kinds of exceptions and exclusions to the Second Amendment that we always have for the First.

      1. Yes, it’s well understood that the second amendment isn’t absolute: If you annoy me on the street I can’t up and shoot you.

        The problem is, they point to some exception to the 1st amendment that’s based on harm or the imminent threat of it, and use it to justify restrictions to the 2nd amendment that have nothing like the immediate relationship to genuine harm.

        1. Depending on which specific harms we’re talking about, I’m fine with exceptions and restrictions based on at least some harms that happen in slow motion. I don’t think the fact that a harm won’t happen until next week, next month or next year is necessarily a good reason to not do anything about it.

          Reminds me of the old joke from when Ronald Reagan was president. They woke him up in the middle of the night to tell him the Russians had launched nuclear warheads that would be arriving in six minutes. Nancy responded, “Oh good, he can sleep for another five minutes.”

          1. That’s not even funny. Try again.

            1. Looks like you suffer from …. RDS!

      2. I would love it if the exceptions and exclusions to the Second Amendment were limited to those we have for the First. That would void the vast majority of anti-gun regulations.

        Consider:
        – There is no mandatory waiting period before you can buy a printing press.
        – There are no background checks at the bookstore
        – Other than universally-applicable sales taxes, there are no license fees to be either a reader or an author
        – Felons have their internet privileges sharply curtailed while in prison but their rights are immediately restored upon completion of their sentence unless there is a relevant risk factor in their criminal history and even those restrictions must be carefully tailored (such as child molesters being prohibited from child-centric sites)
        – Decisions to speak on unpopular topics are allowed no weight in child custody disputes
        – Your right to carry your computer printer across state lines is universally recognized
        – You can buy as much ink and paper as you like anywhere in the US. There are no purchase limits or cooling-off periods.

        The list goes on and on.

        What’s not allowed? You can’t yell “fire” in a crowded theater because doing so would cause harm to others (unless there really is a fire, that is). Likewise, you can’t shoot someone else. And guess what – we already have laws against murder, assault and property damage.

        All any gun rights advocate wants is for the Second Amendment to be protected to the same standards as the First.

        1. Rossami, if and when someone uses a printing press to shoot up a school let me know. Until then, the point is that no right is absolute. Not the ones in the First Amendment and not the ones in the Second Anendment.

          1. The damage down to society by using a printing press to advocate for the election of Democrat Party candidates is 10,000 times that of every school shooting that has ever occurred.

          2. Ignoring the partisan jibe, Atkenberg is right that historically printing presses have been used to oppress and kill far vast numbers of people.

            1. Absolutely correct, how many deaths can be attributable to Hitler’s mein Kampf or the Communist manifesto. Tens of millions.

              A printing press can bring down governments, as our own Federalist papers or the declaration of Independence shows.

              It’s often said the pen is mightier than the sword for a reason. Authoritarian countries regulate printing presses severely for a reason.

              1. True enough but there’s a signficant difference Advocating for regime change via the printing press is a protected activity even if one isn’t always happy with the results; shooting up a school is not. If a free press produced as much collateral damage from unprotected activities as guns do, I think you’d see calls to regulate it. And in fact, it already is regulated: Your local newspaper cannot publish nuclear launch codes, nor can it publish a story that the mayor of your city molests children without risking being sued for defamation. For that matter, I can’t just say I’m a journalist and walk into the White House briefing room, and even credentialed journalists are kept out of the situation room. So the idea that there are no restrictions whatsoever on the First Amendment is just wrong.

                1. The problem is, you’ve got too much ‘reasoning’ in the form of, “The right can be restricted, this is a restriction, therefore it’s OK.”

                  You can restrict use of a printing press to cause harm. Trivially, I can’t legally beat you to death with a printing press, unless in self defense. But you can’t use the fact that I might pick up a printing press and beat you to death with it as an excuse to regulate printing presses in stupid ways that primarily impact legal uses. (All printing presses must be too heavy to lift overhead!)

                  You can restrict use of a gun to cause harm. I can’t legally shoot you, except in self defense.

                  But what you can’t do is say, “A ventilated muzzle guard would allow you to shoot more bullets, you might use those bullets to commit a crime, so we can prohibit ventilated muzzle guards.”

                  You can’t regulate the right on the presumption that its use will be wrongful.

                  And yet, that’s most of gun control. Can’t have large magazines, because you could shoot more bullets while committing a crime. Can’t have a short shotgun because it would be easier to conceal on the way to a crime. Can’t have suppressors, because you might not go deaf, and we’re pretending they really make guns silent.

                  It’s like banning printing presses that have large paper racks because you might print a lot of copies of your ransom note.

                  1. No, my position is not “rights can be restricted, this is a restriction, therefore it’s OK.” I can think of a lot of restrictions that I would consider unconstitutional, and several others that would probably be constitutional but which I would consider bad policy. And I’m not one who wants to use reasonable regulation to ultimately ban guns; there are a few who do, but I’m not one of them.

                    If a ventilated muzzle guard is almost entirely used to commit crime, and there is a tenuous at best reason for private citizens to have one, and banning them would result in an appreciable reduction in gun violence, then I think you may be able to ban them. Please note that I do not know that any of those facts are actually true; I’m simply running with the example you gave, and I would require that those facts be proven before a ban went into effect. At bare minimum, you can certainly require a showing that you need one, and require proper training and storage, and criminally prosecute you if you don’t properly store it and it’s used to kill someone.

                    That is the standard for most other inherently dangerous products. Nobody walks in off the street and buys dynamite. I can’t just waltz into a chemical supply store and waltz out with sarin, or cyanide. A biology lab will not sell me cultured anthrax. I may be able to get some or all of those on my own from other sources, but they are heavily regulated and monitored.

                    1. Tens of millions of high-capacity magazines are used for lawful purposes tens of millions of times every year, versus the few mass shootings that occur.

                      Their overwhelming purpose and use is not for crime.

                      A magazine ban would at best add an additional 9 seconds to the time it takes to shoot a hundred rounds due to the extra time for magazine changes.
                      Considering how rare events are where a mass shooting shoots a hundred rounds, any statistical reduction in deaths would get lost in the statistical year-over-year noise and would therefore not be appreciable.

                    2. I gotta say it looks like you’re moving the goalposts, Krychek. Your prior posts make it look like what Brett summarized.

                      By the way, your generalization about “most other inherently dangerous products” is pretty badly wrong. The most dangerous product commonly on the market is the standard automobile. And yes, you can literally waltz off the street and buy one at will. But even other “scary” products like lab chemicals can be purchased with no or minimal regulations. As an example, my son recently bought the materials to make thermite online. No paperwork, no monitoring, not even age verification beyond possession of a credit card. Regulations of “scary” things are based more far more on perception and fear than on any measure of actual risk.

                    3. Rossami, you’re right that anyone can buy a car, but not everybody can drive one. You first have to take a driver’s test and prove that you can safely operate it. In most states you need to insure it. And you can lose your license if you demonstrate that you can’t be trusted with it.

                    4. And no, I’m not moving the goalposts. I suspect that your default assumption is that anybody who supports reasonable regulation must be a gun grabber. I’ll give you the benefit of the doubt if you tell me that’s not true, but what I just said is pretty consistent with what I’ve always said. If you have a specific previous comment that I made that you’d like me to reconsider I’ll be happy to do so.

                2. Forget the printing press. You have no business owning a cell phone with the capacity to video tape, because child pornographers sometimes use camera phones to make their criminal product. You need a background check and a waiting period to own a cell phone, because criminal conspirators use cell phones to launch robberies and murders for hire. Anyone wanting to use a cell phone concealed should have to take a course and get a license, because terrorists use cell phones as triggers for IEDs. The list goes on.

          3. the point is that no right is absolute.

            And it’s not a good point. It doesn’t do anything to tell us which restrictions and conditions are permissible.

            1. Which restrictions and conditions are permissible is a separate discussion, but we don’t even get there without first establishing that some restrictions and coditions are permissible. Which at least some Second Amendment absolutists don’t acknowledge.

              1. Defined as such, Second amendment absolutists basically don’t exist. Even the strictest of Second amendment advocates agree that it’s OK to prohibit using guns to commit crimes, which is essentially how printing presses are regulated.

      3. But you can Bakst call to prayers at 0 dark 30.

    2. I think you should be able to buy guns during a pandemic, and that you should be able to speak during one.

      It’s possible that some narrower restrictions on either could be constitutional, as long as avenues of gun purchase/communication are left open.

  2. We should get Disney’s opinion on this. They sure love them some open-ended copyrights, “limited Times” notwithstanding. May as well apply it wherever else the Powers-That-Be want.

  3. I wonder if it is possible to send Judge Tigar a rubber stamp as a gift.

    Both judges were appointed by Obama.

  4. “didn’t violate the Second Amendment, in large party because it was just a “waiting period”:”

    How long a “waiting period…”? Months? Years?

    1. Ask Disney.

  5. Reminder: The Second Amendment already provides the permission required to keep and bear Arms. States have no right to require licensing or the collection of fingerprints for either the purchase of or the carrying of a firearm.

    Laws stating otherwise should be ignored.

  6. Based on a reeding of the opinions without looking into the emergency declarations them selves it seem the two situation may not be similar at all.

    In one closing gun and sporting goods stores among other businesses as non-essential while leaving grocery stores open could be justified as an emergency measure to prevent the spread of disease.

    However shutting down a government service legally required to transfer gun ownership and specifically targeting gun sales would seem to be targeting the Second Amendment or specifically prohibiting the sale of guns especially is some stores which sold guns but were otherwise allowed to remain open (Walmart?).

  7. In California, alcohol (liquor stores) and tobacco (cigarette stores and pot dispensaries) are essential but firearms (gun stores) are not.

    Large protests without any concern for social distancing seem to be acceptable too.

    1. Let me guess – you’ve never considered why liquor stores are essential businesses, and instead just decided to be outraged?

      You seem like the type to do that.

    2. You got it. Same way that months of “waiting” for a gun purchase is a “reasonable restriction” but if a woman has to wait 24 hours to kill her baby or if a gay “couple” has to drive to a neighboring county to get their sodomy, I mean marriage, license, then that’s just OUTRAGEOUS!

      1. Social conservatives are among my favorite culture war casualties.

        Open wider, clingers. Your betters are about ready to resume shoving the progress down your whining, impotent, bigoted throats.

        1. Fuck off, slaver.

          1. Awwww, I kinda feel sorry for the phony Rev. All his side does is lose, lose and lose some more.

            Since he started bitching and whining, there hasn’t been a single piece of Federal gun control passed, all 50 states offer Concealed Carry. State and local gun control laws keep getting over ruled and SCOTUS has taken a sharp turn to the right.

            Its like a direct relationship, almost like the more he complains … the better things get for gun owners. Poor dumbass.

            1. He also predicted a Republican party lost in the wilderness forever back in 2016. I wonder if every time he looks at the back of a twenty dollar bill he sighs with the realization that Trump has been living there for 3 and a half years.

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