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Thursday, April 16, 2020

Gun Stores: Essential Under State Mandated Business Closures?

Law Blogger
To put it bluntly, some federal judges are saying, "NO", rejecting requests to open gun stores.

The COVID-19 pandemic is all-consuming. Of course then, one of its tendrils has intersected America's sacred Second Amendment right to purchase and bear arms.

States Determine What Businesses Are Essential

Whether gun stores are "essential" businesses and thus can stay open under various state stay-at-home orders is a hotly debated topic. The issue involves local law enforcement and the national gun lobby attempting to work out an answer in federal  courts across the nation. As is so often the case in federal court, the answer depends on the judge, the region, and the circumstances.

With temporary but protracted government-forced business closures, the NRA, other pro-weapon organizations, and individual gun store owners are filing federal lawsuits by the hundreds, seeking to enjoin the local sheriff from shuttering gun businesses. These cases have a common ingredient: the gun-lobby puts the matter into suit with a motion seeking a temporary restraining order to enjoin the sheriff from closing the gun store.

Pro-gun groups assert that the forced government shut-downs violate citizens' rights to purchase and possess weapons under the Second Amendment to the United States Constitution. Further, the argument goes, the Second Amendment is unique in that it makes gun stores essential by its very text.

The Second Amendment

The pithy text of the amendment states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
On the other side of the argument, state actors -governors across the nation- assert that their "stay-at-home" business closure executive orders are consistent with a state's health and safety interests to the extent that closed businesses reduce the spread of the disease. Michigan would be "Exhibit A" in this debate.

Executive Orders Here in Michigan

When word gets out in our local communities that certain businesses are in operation, the legal question becomes: is the business "essential" or "non-essential". Then the next question is whether the local county sheriff has the political will -the prosecutorial discretion- to ticket the local business for rogue operations.

Here in Michigan, four Northern Michigan sheriffs [from Mason, Manistee, Benzie, and Leelaneau Counties; contiguous counties along Lake Michigan] have banded together to protest Governor Gretchen Whitmer's latest executive shut-down order - Executive Order 2020-42; arguably one of the most restrictive in the country.

The primary thrust of the critique is that EO 2020-42 contains vague and inconsistent language that has proven difficult to enforce. The Lake Michigan sheriff's group said that EO 2020-42 was "a vague framework of emergency laws that only confuse Michigan citizens."

Aside from the general protestation against a state's power to close a legitimate business, a secondary question is whether gun stores are "essential". There is no simple answer to that one. Gun groups contend that the ability to possess weapons and ammunition is as essential as electricity, fuel and groceries. This is especially the case, they say, in these uncertain and fearful times. [Contact your neighborhood prepper for more info.]

Federal Courts Getting Drawn Into the Debate

Meanwhile, as this debate rages on, two federal judges in California, both Obama appointees, have refused to issue TROs sought by the NRA and other gun groups against the sheriffs in Ventura and Los Angeles Counties. These decisions will, no doubt, be appealed to the infamous Ninth Circuit Court of Appeals in San Francisco. We can expect one of the cases now percolating in the federal courts to emerge as a SCOTUS certiorari grantee.

We here at the Law Blogger anticipate that the various circuits will issue a patchwork of differing decisions; decisions highly-dependent on the specific texts of the state government orders. The right case going to the Supreme Court will offer a unique opportunity for a now-conservative Court to address the text of the Second Amendment. Look for such a case in the 2021-2022 term; we'll be monitoring the High Court's docket so we can report back to our readers.

We Can Help

If you own or operate a business that has been enjoined from serving your customers and your business is arguably "essential", our law firm can provide assistance. Simply click on the link below to access our web site for contact information.

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