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Howell’s Gun Shop in Gray, Maine, on October 25, 2016. | Derek Davis/Portland Portland Press Herald via Getty Images

With these courts, gun stores are likely to prevail.

A coalition of gun groups, a Pennsylvania gun shop, and a gun owner filed a lawsuit to keep gun stores in the state open as other nonessential businesses shut down, claiming that Pennsylvanians have a constitutional right to continue to be able to purchase firearms — even in the middle of a pandemic.

The lawsuit, Civil Rights Defense Firm v. Wolf, was rejected in a 4-3 vote of the state supreme court. But the three justices in the minority concluded that “it is incumbent upon the Governor to make some manner of allowance” for people who want to buy guns. And Wolf appears to have given in to this demand.

On Tuesday, Wolf modified his order to allow gun dealers to sell firearms by individual appointment, so long as they comply with social distancing and similar measures.

It is likely that other lawsuits will proliferate. On Monday, a similar coalition of gun groups, gun shops, and an individual seeking to buy a gun filed a federal lawsuit claiming that New Jersey Gov. Philip Murphy’s order requiring “the brick-and-mortar premises of all nonessential retail businesses [to] close to the public as long as this Order remains in effect” must contain an exemption to permit firearm sales.

Other gun groups, meanwhile, have threatened a wave of lawsuits seeking similar exemptions for gun dealers. The National Rifle Association, for example, told the conservative Washington Free Beacon that “all options—legal, legislative, and otherwise—are on the table.”

These lawsuits could transform Second Amendment law. As a general rule, businesses are not exempt from generally applicable regulations simply because they engage in activity that is protected by the Constitution. Newspapers, for example, engage in First Amendment-protected activity, but they still must comply with federal labor law.

But the Supreme Court’s Republican majority appears eager to expand the rights of gun owners. And judicial conservatives have also shown some willingness to give conservative groups targeted exemptions from generally applicable laws.

While most lower court judges embrace a framework that is fairly permissive of gun regulations, there is a faction of conservative judges who reject this framework and who have argued, mostly in dissenting opinions, that the Second Amendment should be read more expansively. President Trump, moreover, has filled more than a quarter of the federal appellate bench, so it is likely that this rebel faction now holds a majority in at least some federal appeals courts.

Thus, even if no case challenging an order closing gun shops reaches the justices, it is likely that at least some of these cases will be heard by a panel of sympathetic Republican judges. There is a very good chance, in other words, that the pandemic could give gun rights groups an opportunity to expand the Second Amendment beyond its current scope.

Gun stores have to follow the same rules as everyone else

The general rule is that businesses engaging in constitutionally protected activity have to follow the same regulations that apply to any other business.

This rule flows from the Supreme Court’s decision in Associated Press v. NLRB (1937). In that case, the Associated Press claimed that it wasn’t bound by a federal law protecting workers’ right to unionize because it was in the business of journalism, and journalism is protected by the First Amendment’s guarantees of freedom of speech and freedom of the press. The Supreme Court rejected this claim, holding that “the publisher of a newspaper has no special immunity from the application of general laws.”

Thus, while the government could not directly regulate the practice of journalism itself — it could not, for example, enact a censorship law, or require newspapers to devote a certain amount of their resources to sports coverage — it may enact generally applicable laws that apply to all businesses. Newspapers still have to pay taxes. They have to comply with labor laws and health regulations. If a newspaper owns the building where their reporters work, that building must comply with the local fire code.

A similar rule should apply to gun shops. The Second Amendment limits a state’s ability to impose special restrictions that apply only to gun dealers, but gun shops still must pay taxes, obey zoning regulations, and so forth. For this reason, if the governor of a state issues a broad order closing a state’s nonessential businesses, and that order does not single out gun shops for inferior treatment, gun stores typically should be bound by that order.

The Second Amendment is not absolute

Pennsylvania Supreme Court Justice David Wecht makes a persuasive argument in his Civil Rights Defense dissenting opinion that Governor Wolf’s order, when layered on top of other preexisting laws, does effectively subject gun shops to much stricter regulation than other businesses.

At least within Pennsylvania, Wecht explains, “the sale and transfer of firearms sold at retail cannot be completed merely by way of telecommunication and mailing under existing law.” Rather, a combination of federal and state laws effectively require gun sales to take place in-person. Thus, if the governor’s order prevents in-person sales, it amounts to a temporary ban on gun sales within the state.

Nevertheless, as the Supreme Court explained in District of Columbia v. Heller (2008), “the right secured by the Second Amendment is not unlimited.” The Second Amendment still permits a wide range of regulations targeting firearms, including “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” and “laws imposing conditions and qualifications on the commercial sale of arms.”

If Wolf handed down an order that permanently banned gun sales in Pennsylvania, that order would almost certainly violate Heller. But Wolf had not done so here — his original order presumably would have lifted when the extraordinary measures needed to fight the coronavirus are no longer needed.

Many states, moreover, have laws that temporarily prevent individuals from purchasing a gun, and the courts have largely allowed these laws to remain in place. In Silvester v. Harris (2016), for example, a federal appeals court upheld a California law that requires anyone purchasing a gun to wait 10 days.

The impact of this law on gun buyers, the court explained, “is very small.” It neither prevents “any individuals from owning a firearm,” nor does the California law “place any conditions on how guns are stored or used after a purchaser takes possession.” Moreover, while the law imposed a small burden on gun buyers, it could provide tremendous benefits to society by requiring “ a cooling-off period” that “may prevent or reduce impulsive acts of gun violence or self harm.”

The coronavirus lockdown is likely to last far longer than 10 days. But the stakes are also much higher during a global pandemic than they were in the Silvester case. Under ordinary circumstances, California’s 10-day waiting period may prevent an occasional act of domestic violence or suicide. Under the extraordinary circumstances caused by the coronavirus, a strict order limiting in-person transactions could slow the spread of the disease, reduce the burden on our health care system, and save hundreds of thousands of lives.

So, if existing law permits a short delay before someone may buy a gun in ordinary times, it most likely permits a longer delay during these extraordinary times.

The Supreme Court is eager to expand the Second Amendment

There is no guarantee, however, that current law will hold as suits like Civil Rights Defense wind their way through an increasingly conservative judiciary.

Heller was the first Supreme Court case in American history to hold that the Second Amendment protects an individual right to bear arms, and the justices have done little to flesh out Heller. Indeed, the Court hasn’t handed down a significant Second Amendment opinion since 2010.

Yet, in the absence of further guidance from the Supreme Court, lower federal courts have largely reached a consensus about how to analyze Second Amendment cases. Under this consensus approach, “severe burdens on core Second Amendment rights” are especially likely to be struck down, while “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to less rigorous scrutiny. Silvester, the decision upholding California’s waiting period law, applied this consensus framework.

One person who breaks from this consensus, however, is Justice Brett Kavanaugh. As a lower court judge, Kavanaugh argued that the consensus view should be abandoned and that courts should “assess gun bans and regulations based on text, history, and tradition, not by a balancing test.” While it’s not immediately clear what this vague “text, history, and tradition” test would mean for all gun regulations, Kavanaugh proposed this test in a dissenting opinion where he took a position well to the right of two of his Republican colleagues.

So it is a safe bet that Kavanaugh would invalidate far more gun laws than the consensus view permits.

Kavanaugh, moreover, occupies the seat that was previously held by Justice Anthony Kennedy, a relatively moderate conservative who prevailed on his fellow Republican justices to water down the Court’s decision in Heller. Kennedy is the reason why Heller contains the language stating that the decision “should not be taken to cast doubt” on many existing gun laws.

It is likely, in other words, that the Supreme Court now has five votes to significantly expand the scope of the Second Amendment. That means that gun shops have a good shot at prevailing if they seek an exemption from orders closing businesses to fight the coronavirus.

One other caveat is worth noting here. In United States v. Lee (1982), the Supreme Court applied the rule that all businesses must follow generally applicable laws to religious liberty suits. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court held in Lee, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

But Lee has fallen far out of favor with judicial conservatives. Just think of all the lawsuits brought by religious business owners claiming that they have a right to violate laws prohibiting anti-LGBTQ discrimination.

The history of religious exemptions to generally applicable laws is complicated, fraught, and difficult to briefly summarize (although if you want a relatively concise summary, you can find it here). But it should be noted that the Court has historically treated such cases as distinct from other lawsuits where an individual claims that they should be exempt from a widely applicable law.

Though it now seems very likely that the Supreme Court will give religious conservatives broad exemptions from civil rights laws, the Court has not signaled that it will give similar exemptions from generally applicable laws to gun dealers.

Nevertheless, the Court’s recent “religious liberty” cases are a warning that legal doctrines can shift quickly, and that the Supreme Court’s current majority appears eager to extend the constitutional rights of conservative interest groups — even if doing so means inflicting harm on others.

Author: Ian Millhiser

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