Guns

Virginia Court: Governor Lacks Power to Close Gun Ranges

The court was applying a specific Virginia statute that limited the Governor's emergency powers as to guns.

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Virginia Gov. Ralph Northam closed gun ranges, alongside K-12 schools, churches, restaurants, and "recreational/entertainment businesses," because of the epidemic. Today, Judge F. Patrick Yeatts held (in Lynchburg Range & Training, LLC v. Northam) that the governor lacked the power to do that, under Virginia law:

[1.] Though Virginia law "grants the Governor broad emergency powers, § 44-146.15(3) constrains the Governor from 'limit[ing] or prohibit[ing] the rights of the people to keep and bear arms as guaranteed by [the Virginia Constitution's right to keep and bear arms] or the Second Amendment …, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms.'"  (The statute actually says the emergency statute does not "[e]mpower the Governor" to "in any way limit or prohibit the rights of the people to keep and bear arms …," with an exception not relevant here.)

[2.] "The Governor also argues that his authority to close indoor gun ranges emanates from his chief executive power and duty to 'take care that the laws be faithfully executed.' The Governor appears to argue that, when he declares a state of emergency, he can ignore any law that limits his power, even laws designed to limit his power during a state of emergency. Such an interpretation would defeat the reason for making § 44-146.15(3) and render the statute meaningless."

[3.] Section 44-146.15(3) covers gun ranges, especially since courts have recognized that the Second Amendment generally includes the right to train in the use of guns and not just the right to possess them. See, e.g., Ezell v. City of Chicago (7th Cir. 2011).

[4.] Whatever courts might say about the "standard of review" for gun restrictions under the Constitution (strict scrutiny, intermediate scrutiny, lower review under Jacobson v. Massachusetts), "The Court declines to invent a level of scrutiny to circumvent the text in the statute." "Having found that indoor gun ranges are protected by the statute, the Court cannot uphold executive orders that limit or prohibit indoor gun ranges."

NEXT: Justices Citing Their Own Circuit Court Decisions By Name (Updated)

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  1. “”The Governor also argues that his authority to close indoor gun ranges emanates from his chief executive power and duty to ‘take care that the laws be faithfully executed.'”

    So, essentially he was arguing that his duty to enforce the law empowered him to violate it?

    1. The governor claimed he had to ignore the law in order to enforce it. The court declined to destroy the law in order to save it.

      1. To be fair to the governor, he had decent odds of getting a judge who’d swallow that argument, or indeed any argument that came to the same end. He had no good arguments in his favor, but if he had gotten the right judge, he wouldn’t have needed a good argument.

        1. Agreed. Judges have been way too deferential with shutdown orders. I’m actually surprised they got this result, even with the specific statute on point.

          1. Purely luck of the draw.

            1. . . . such as the draw that gave the gun nuts a judge from Liberty University in this case.

              1. Fuck off, slaver.

              2. If Liberty University teaches law students to read the law and apply it, it’s superior to other universities (such as the one Kirkland flunked out of) that teach them the opposite.

          2. Judges are government employees and know who butters their bread. If they want to work up the judgeship chain, they need to be team players.

        2. Not in Virginia.

          Now, if this was NY or California, where the court had been packed with people of identical political outlook to the ruling party for the last 40 years. But this is Virginia. That switch is far more recent.

          1. Which is exactly why Fairfax, Arlington and Loudoun shouldn’t be allowed to vote.

    2. From Ezell v. City of Chicago, “No shooting range yet exists, which severely limits Chicagoans’ Second Amendment right to maintain proficiency in firearm use.”

      Hey Brett, I don’t see you squawking about this penumbra right.

      How dare the 7th Circuit find this unenumerated right out of thin air!

      Amirite?

      1. What part of “keep and bear arms” do you not understand?

        1. The part on which gun nuts rely to contend that gun rights are uniquely absolute.

          1. That’s possibly the stupidest straw man in the universe, not just of existing straw men, but of logically possible straw men.

            All we ask is that guns be treated, legally, just like printing presses. Are 1st amendment rights uniquely absolute?

  2. I think the court made the correct decision. But it does seem that the Gov was acting to protect public safety, rather than attempting to curtail gun rights. (He made no effort to close outdoor shooting ranges, where the risk of infection would be much lower.) But noble motives (or, as Trump might say, Nobel motives) do not save an unconstitutional order, so the court got it right.

    1. How is closing an indoor shooting range protect public safety at all? It seems capricious and arbitrary. Do indoor ranges danger the people around it? I would think outdoor ranges would be more of a threat to the pubic as a stray round “could” fly off and hurt someone outside the range. This looks more as a test balloon to see what you can get away with.

      TO me he did not have any positive motive for it. Just a will to power. The idea that he can ignore limits to his power in statute specifically there to limit his power is telling.

      1. I think you’re missing what the safety concern is. It doesn’t have to do with bullets hitting someone outside the range, it has to do with people in enclosed spaces infecting each other.

        1. Which would mean every other building would have to be closed because people in enclosed spaces infect each other. OR, you know they could follow the health guidelines for distancing and maximum occupancy like everyone else who is allowed to open.

          1. In Virginia, non-essential businesses have been shut down. So…most other buildings have been closed because people in enclosed spaces infect each other.

            1. Except that the fire arms industry was designated as essential by the feds.

              1. That’s not particularly relevant to Virginia’s governor’s emergency powers, and also completely unrelated to your previous point.

          2. Most buildings have been closed down. Those that aren’t are justified by special circumstances. If one follows the 7th Circuit precedent, I think there’s an exceptionally strong argument that gun ranges are one of those special circumstances. I was just correcting someone who didn’t seem to understand the public safety concern. He seemed to be under the misapprehension that the safety concern was from guns shooting past their target as opposed to infectious disease.

            1. Emu,

              Ah I may have misinterpreted your statement as well. But I think you and I at least are in agreement. Though perhaps for differing reasons.

      2. The risk as far as emergency closures go is on coronavirus protection, not firearm safety. But I do think that even indoor ranges probably aren’t that big a problem, considering you keep your distance from others anyway (with partitions!) and have pretty strict occupancy limits.

      3. “TO me he did not have any positive motive for it. Just a will to power. ”

        This is why you are destined to spend the remainder of your life as a disaffected casualty of the American culture war, muttering bitterly about ‘all of this damned progress’ — in particular, education, science, reason, diversity, and modernity.

        1. Excellent attack on the person, without remotely scratching the actual argument. Well done, that will show them!

    2. santamonica811….We don’t agree on a lot, but I appreciated your intellectual honesty = But noble motives do not save an unconstitutional order, so the court got it right.

      1. Now do the right to assemble during a pandemic . . . from the poorly educated, disaffected, anti-social conservative perspective.

        1. Same thing. They are allowed and cannot be prohibited.

  3. I am so proud of my local shooting range for filing this suit. They had some pretty decent financial backing from gun rights groups; without that help, it wouldn’t have been possible.

    1. Good for them! There is another new lawsuit today in California: https://libertycenter.org/pf/givens-v-newsom/

  4. The movie for the evening should be Escape From L.A., if for nothing more than the reference at 1:35: https://www.youtube.com/watch?v=XJpznMaZ85c

  5. There is a God…..

    1. . . . and he loves guns, hates gays, and thinks immigrant children should be caged, at least according to current conservative orthodoxy.

      Carry on, clingers. Not for much longer, but enjoy your last gasp.

      1. Immigrant children don’t belong here. Americans never voted to turn themselves into strangers in their own land.

  6. Well, at least Governor Virtue Signal did not try to close vape shops here

    1. Whoo, I agree, we must allow co-morbitities!

  7. I pray that there are consequences to constitutional violations.

    I pray that Damocles’ Sword of Truth cuts long and wide and deep, make felons prohibited further office.

  8. Indoor gun ranges always have a high air throw put and exchange, almost always have lane separators and are limited in occupancy to low numbers per square foot. Just from the risk perspective, lower than many “essential” services.

    1. It’s probably the case that there are a variety of indoor businesses that are fairly low-risk, but it’s probably not that feasible for governors to do an inventory of all types of businesses and assess which ones are more likely than not. A default of everything closing with exceptions for essential services seems like a reasonable way to approach the problem, and reasonable people can disagree about whether a gun range is essential or not.

      Having said that, it would be interesting to see more states doing this sort of risk-based approach to figuring out what sorts of businesses or activities can continue to operate or re-open rather (or in addition to) the essential vs. non-essential dichotomy.

      1. It’s actually not going to be that hard, unless you want to make it hard. Any business that doesn’t require direct extended contact (massage, hair, for example) and can follow the space and sanitizing requirements from the health department should be allowed to open if they so choose. Some of them will be too small to open without some kind of serious change. Some of them will with little or no change.

        We don’t need to reinvent the wheel here…

        1. We are actually inventing “the wheel” for the first time here. The “space and sanitizing requirements from the health department” don’t exist and need to be created. In any case, I think you’re arguing for the same risk-based approach I suggest in my second paragraph, but that framework absolutely does not exist today. (In fact, if you look at the first wave of businesses that were permitted to re-open in Georgia, for example, many of them involved exactly the sort of extended personal contact you ruled out. )

  9. The Governor appears to argue that, when he declares a state of emergency, he can ignore any law that limits his power

    I need to know the party before I can tell if this is outrageous authoritarianism or strong leadership.

    1. He;s a Democrat, so falls into the strong leadership category. If he were a Republican he’d obviously be a fascist.

      It’s all very simple.

      Unless of course he was a Republican reducing restrictions, then he’s be a crazed mass murder.

      1. yawn

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