Government officials across the country have ordered “non-essential” businesses to shut their doors. Everyone recognizes that stores selling food, medicine, and gasoline are essential, but what about gun stores? The rules vary widely from state to state and county to county. New Jersey has closed all retail businesses that sell firearms and ammunition. It has also made the background check portal on the New Jersey State Police Website unavailable, according to a federal lawsuit filed by the Second Amendment Foundation.
Texas and Illinois have gone the other way. Texas Attorney General Ken Paxton issued a legal opinion Friday declaring that emergency orders in his state can’t restrict gun sales because gun stores are essential businesses. Illinois Gov. J.B. Pritzker declared “firearm and ammunition suppliers and retailers” exempt from state closure orders.
In California, the Governor has not declared gun stores to be essential businesses but has left the question of whether gun stores should remain open to local sheriffs. As of now, gun stores in Los Angeles County are closed but stores in neighboring counties are open and doing a brisk business. In fact, where gun stores are open, there are often lines out the door.
The argument for closing gun stores is twofold. First of all, they are being treated like almost all other stores—closed down to prevent crowds from gathering in order to prevent the spread of COVID-19. While people can’t go without food or medicine for weeks at a time, they can go without guns. The surge in gun sales is largely attributed to fear of an outbreak of looting, which does not appear to be actually happening.
Second, some argue that even apart from social distancing, the run on gun stores creates a public safety hazard. With shooting ranges closed, first-time buyers are likely to have little or no experience handling a gun with limited ability accurately to aim to their weapon if they fire it at a perceived threat.
Worse yet, the surge in purchases is creating a situation where people who normally couldn’t pass a background check could potentially buy a firearm. According to ABC/KVIA News: “The federal background check system has been overwhelmed by the massive increase in firearm sales. What might normally take a few minutes is taking much longer, and a backlog on background checks has ballooned to about 80,000 . . . If a background check takes longer than three business days, gun dealers are permitted to allow the sale to go through unless a state has stricter waiting periods.”
There is certainly an argument to be made that a surge of guns in the hands of people who have no experience handling them and might not even be able to pass a background check is dangerous. Firearm ownership correlates with deaths by suicide, which is probably an increased risk right now with all the anxiety, isolation and job loss. More guns might also increase the risk of lethal domestic violence. Further, people are scared right now, and guns in the hands of frightened people can represent a danger to others. For example, local news in Atlanta reported that a man pointed a gun at a woman and her granddaughter shouting, “Don’t come near me! Do you understand what’s going on? The coronavirus!” The woman told the reporter that she wasn’t sure whether she and her granddaughter were going to live or die.
Advocates of keeping gun stores open argue that having a gun for self-defense has never been more important. As one gun store manager put it: “A lot of people may find themselves in situations where they may need to be their own first responders . . . [they] . . . want to protect their family in case things go the other way.” Others point out that if gun stores are closed scared people will find guns another way. A surge in private and black market sales would mean more sales without background checks.
What about the second amendment? The Supreme Court has held that the second amendment protects one’s right to keep a handgun in the home for self-protection. But it has never said anything to directly indicate that gun stores have a special second amendment right to stay open at a time when stores are being closed for public health reasons. After all, the first amendment protects the right to read books, but the government can still close bookstores to promote social distancing.
The Supreme Court has said very little about how broadly the Second Amendment should be interpreted. However, many lower courts have said that laws that are “severe burdens on core Second Amendment rights” should be subject to “strict scrutiny” by the courts. Strict scrutiny is the highest possible level of scrutiny applied by the courts. Laws must be “narrowly tailored to further a compelling government interest” to survive such scrutiny.
This raises the question of whether gun store closures are severe restrictions of core second amendment rights. For now, I would argue that they aren’t. Nobody’s guns are being taken away; some governments are just temporarily suspending new sales for public health reasons. And guns aren’t being subject to any special rules—gun stores are being treated like any other business, so the restriction on gun rights is incidental to legitimate public health regulations.
On the other hand, if this situation stretches on, and vulnerable groups such as the elderly feel unable to defend their homes if looting surges and the police are stretched thin, the courts may see the infringement on their second amendment rights as severe.
Rather than let push come to shove in the courts, states should consider the calibrated approach taken in Pennsylvania and some other jurisdictions. Gun stores are open only to the limited extent needed to complete the portion of a sale that the law requires to be done in person. This has to be done via appointment, during limited hours, with all reasonable precautions taken to preserve social distancing and to protect customers and employees from contagion.
Not only will such restrictions benefit public health, but they will also slow things down, giving people more time to decide if they really need a gun and to consider whether they have the proper training to use it if they do buy one. Keeping the gun stores open to this limited extent, though, means that no one is absolutely prevented from buying a gun if they want to.
Common sense should be the watchword here. The second amendment does not require gun stores to be allowed to operate normally and allow customers to freely enter the store, which would be an obvious contagion threat. The government should not prevent background checks from taking place, and, under no circumstances should someone be allowed to purchase a firearm without a background check. Allowing purchases by appointment with the absolute minimum face-to-face contact during limited hours would preserve public health while likely insulating such laws from second amendment challenges. Limits on the number of firearms and the amount of ammunition purchased at one time should be allowed just as other rules against hoarding are allowed.
It has never been more important for “red” and “blue” America to learn to live and work together. Compromise and respect for everybody’s rights is the way to go.