The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Pennsylvania Governor Tom Wolf issued an order that closed all "non-life-sustaining businesses." That order required licensed firearms dealers to shut down. In contrast, the Governor of Illinois defined firearm suppliers "for purposes of safety and security" as "Essential Businesses" that can remain open
The Civil Rights Defense Firm filed an emergency application for extraordinary relief on behalf of a firearm dealer in Pennsylvania, as well as a Pennsylvanian who seeks to purchase a firearm. They argued, among other claims, that the Governor's order violates the Second Amendment. The Governor filed an answer, and the City of Philadelphia field an amicus brief.
Sunday evening, the Supreme Court of Pennsylvania denied the Second Amendment claim with a one-sentence order:
In all other respects, the Application is DENIED.
Justice Wecht dissented from this order, joined by Justices Donohue and Dougherty. (Please keep Justice Wecht in your prayers; his son has tested positive for COVID-19.) Justice Wecht explained that the order results in a complete prohibition of the right to sell firearms during this emergency:
I write separately because the present Application for Emergency Relief brings to the Court's attention a deprivation of a constitutional right. The Governor's Order of March 20, 2020, the "Order of the Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses That Are Not Life Sustaining" (the "Order"), makes no allowance for any continued operation of licensed firearm dealers. In light of the regulatory framework attending the sale and transfer of firearms, the inability of licensed firearm dealers to conduct any physical operations amounts to a complete prohibition upon the retail sale of firearms—an activity in which the citizens of this Commonwealth recently have been engaging on a large scale, and one guaranteed by both the United States Constitution and the Constitution of this Commonwealth.
Justice Wecht explains that under current law, the only way to transfer a firearm is in a physical premise. But the Governor's order shuts down those businesses.
Unlike the vast majority of other items, the sale and transfer of firearms sold at retail cannot be completed merely by way of telecommunication and mailing under existing law. Under federal firearm laws, a licensed firearm dealer may transfer a firearm to a purchaser who does not appear in person at the licensed premises only when a background check is not required to transfer the firearm, and both the dealer and the purchaser reside in the same state. In Pennsylvania, a licensed firearm dealer must perform a background check in conjunction with the retail sale of any firearm. Moreover, the Uniform Firearms Act provides that the "business" of a licensed firearm dealer "shall be carried on only upon the premises designated in the license or at a lawful gun show or meet." Id. § 6113(a)(1).
Justice Wecht cites Bateman v. Perdue (E.D.N.C. 2012). This case declared unconstitutional a state law that authorized the government to prohibit the sale of firearms during an emergency.
The effect of this regulatory scheme is that, notwithstanding any payment, the actual transfer of a firearm from a dealer to a purchaser must be completed at the dealer's place of business. Quite simply, if firearm dealers are not able to conduct any business in-person at their licensed premises, then no transfers of firearms can be completed. This amounts to an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this Commonwealth—a result in clear tension with the Second Amendment to the United States Constitution and Article I, Section 21 of the Pennsylvania Constitution. See generally District of Columbia v. Heller, 554 U.S. 570 (2008); see also Bateman v. Perdue, 881 F.Supp.2d 709 (E.D.N.C. 2012) (applying Heller to hold unconstitutional a statute authorizing government officials to prohibit the sale of firearms during state of emergency); id. at 714 (noting that statute "effectively prohibit[s] law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for selfdefense" thus "burden[ing] conduct protected by the Second Amendment").
Justice Wecht closes with a very pragmatic solution: allow some reasonable manner for the people to exercise their rights. Let gun dealers follow the same hygiene standards as other essential businesses that can remain open. For example, gun dealers must remain six feet apart from gun buyers. The gun must be wiped down with a Lysol wipe. Etc. There are ways of managing these transactions responsibly. And the existence of a constitutional right requires some form of narrow tailoring.
In my view, it is incumbent upon the Governor to make some manner of allowance for our citizens to continue to exercise this constitutional right. This need not necessarily take the form of a generalized exception to the Order for any and all firearm retailers, although such retailers have been classified as "essential" elsewhere in our Nation.2 To the contrary, just as the Governor has permitted restaurants to offer take-out service but restricted dine-in options, the Governor may limit the patronage of firearm retailers to the completion of the portions of a transfer that must be conducted in-person. Such an accommodation may be effectuated while preserving sensible restrictions designed to slow the spread of COVID-19, but nonetheless provide a legal avenue for the purchase and sale of firearms, thus avoiding an impermissible intrusion upon a fundamental constitutional right.
If people can enter a McDonalds to pick up a Big Mac, then people should be able to enter a firearm store, complete the requisite background check process, and get their firearm.
This case may be headed to the United States Supreme Court. As a general matter, emergency applications for stays are rarely granted. But this application may be well timed. Last term, the Supreme Court granted its first Second Amendment case in nearly a decade: New York State Rifle & Pistol Club Association v. New York. However, New York took deliberate acts to moot the controversy. I had expected the Court to quickly dump the case on mootness grounds, but they did not take that step. I suspect now the Justices are wrangling over the finer points of mootness doctrine. The Pennsylvania case may provide the Court with a straightforward opportunity to issue a narrow per curiam ruling on the Second Amendment.
The judgment could follow Justice Wecht's dissent: at a minimum, licensed firearm dealers should be treated like other "essential" businesses in the state, and can remain open during the emergency. I'm sure the gun dealers will comply with whatever social distancing rules apply to other businesses. Moreover, the Plaintiffs in this case are law-abiding gun dealers and gun buyers. They will comply with all relevant regulations. Such a narrow ruling could go a long way to reaffirming that the Second Amendment is not a second-class right that can be shooed away with the stroke of a Governor's pen.
I'll close with a policy argument. Our society is veering towards uncharted waters. At some point, I worry that civil unrest will spread. And I am not confident that first responders will be able to handle violence, looting, and other forms of crime. Indeed, the very act of arresting a person requires physical contact with a person who may be symptomatic. Business in Philadelphia, Chicago, and across the country are already boarding up their windows. The right to bear arms for defense is especially important in such times of conflict. You may dial 9-11, and the response is, "sorry, we can't help right now." At that point, Governor Wolf's executive order will not provide any protection. A functional firearm will be far more useful than a pallet of toilet paper.