Massachusetts Ordered to Open Gun Stores in Pandemic

BOSTON (CN) — A federal judge in Massachusetts has ordered the country’s first injunction to protect gun sales in the coronavirus pandemic.

The 4-page order, which U.S. District Judge Douglas Woodlock amended shortly after publication, follows two hearings held earlier Thursday and on Monday.

A would-be gun buyer named Michael McCarthy brought the underlying suit about a month ago after Massachusetts Governor Charlie Baker issued an executive order shuttering nonessential businesses to slow down the spread of Covid-19.

Similar suits have been filed in states around the country, but McCarthy’s attorney David Jensen noted in an interview that theirs is the first to prevail at the preliminary injunction stage.

Temporary restraining orders were denied in two California cases, said Jensen, who is based in of Beacon, New York.

Meantime, attempted gun purchases have experienced a “tremendous increase” nationwide, noted Larry Keane, general counsel of the National Shooting Sports Foundation, an industry trade group.

“A majority of people purchasing firearms in the last two months have been first-time buyers,” Keane told Courthouse News, calling the trend unprecedented.

The FBI reported 3.7 million background checks in March, the largest number since the National Instant Criminal Background Check System was begun in 1998. There were another 2.9 million requests in April.

States have differed on their treatment of firearms during the pandemic. Gun stores are considered essential businesses in Maine, Maryland, New Hampshire, Ohio, Rhode Island, Virginia and West Virginia. In addition, stores are allowed to carry out certain limited functions in Connecticut, Delaware, New Jersey, Pennsylvania and Vermont.

Massachusetts Governor Baker, a Republican, issued his emergency order on March 23, classifying gun stores as nonessential businesses that would have to remain closed. 

The decision to close gun stores but not liquor stores was "based on politics" rather than "facts and science," Jason Guida, a lawyer for the plaintiffs, said in an interview.

Of counsel at the Saugus firm Principe & Strasnick, Guida told Courthouse News the government was pressed repeatedly at the hearings to explain its decision-making process and "simply couldn't come up with an answer."

But an answer isn’t necessary, according to Gregory Magarian, a professor at the Washington University in St. Louis School of Law. He called Woodlock’s decision “surprising” and “wrong,” because the government doesn’t need a special justification for gun stores — a generally applicable law can restrict constitutional rights so long as the government isn’t specifically targeting the stores to the exclusion of all other businesses.

In addition to lead plaintiff McCarthy, the suit that prompted Judge Woodlock’s injunction was supported by gun stores and Second Amendment advocates.

“This emergency — like any other emergency — has its constitutional limits,” the complaint alleged.

“The need for personal self-defense is most acute during times of uncertainty and crisis — when law enforcement services may not be available or may not be reliably available, and when (as now) criminal offenders may be released from custody or may be less likely to be taken into custody in the first place.”

Massachusetts ranks third in the country in Covid cases and fourth in Covid-related deaths with about 3,000. The state had argued that the ban on sales was reasonable because most gun stores are “cramped spaces,” and the merchandise will not spoil if sales are put on a temporary hold.

Woodlock’s injunction requires gun stores to observe a number of restrictions, including limiting the number of people in a store at one time and requiring stores to provide salespeople with face masks, handwashing facilities, alcohol-based wipes, social distancing and plastic barriers. Merchandise must be sanitized and employees must stay home if they feel sick.

“When Governor Baker lumped gun shops in with thousands of other businesses deemed ‘non-essential,’ he obviously didn’t consider the exercise of a fundamental right to be essential,” Alan M. Gottlieb, founder of the Second Amendment Foundation, one of the plaintiffs in the case, said in a statement.

“We can think of nothing that is more essential than exercising a right protected by the Constitution, especially during a declared state of emergency.”

Recently the Bureau of Alcohol, Tobacco, Firearms and Explosives issued guidance to gun stores saying that it wouldn’t violate federal law for them to conduct sales via a drive-up window or a table in a parking lot.

In 2011 a federal court in North Carolina struck down a law that banned firearms sales during an emergency. That law had been applied during a hurricane.

Apart from lawsuits that have been brought over essential-business designations in New Mexico and New York, Mississippi faces a challenge over its pandemic-related suspension of open-carry laws.

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