Essential Business and The Second Amendment
The Daily Journal
March 31, 2020
By Ara Jabagchourian
On Friday, a lawsuit was filed challenging Los Angeles County Sheriff Alex Villanueva’s effort to shut down gun stores in Los Angeles by deeming such business “non-essential.” The lawsuit names Villanueva, Gov. Gavin Newsom and two public health officers.
Given the COVID-19 pandemic we are in the midst of, several counties in California, followed by the Gov. Newsom, issued a shelter-in-place order. As part of the shelter-in-place order by Gov. Newsom, 16 separate areas of industry, as identified by the federal government, are exempt from the shelter-in-place order, as set forth in Executive Order N-33-20. The chief driver of the order is to systematically and with weight of the law, institute “social distancing.” The order further states that the governor “may designate additional sectors” to exempt, but does not identify those. The list of 16 separate areas of industry did not include the civilian firearms industry. When counties sought guidance as to whether gun stores are deemed to be essential, Gov. Newsom left it open to the individual counties, through their respective sheriff’s, to make that decision.
At the same time, there was (and continues to be) a large run on firearms across the nation. California was not an exception. According to reports from many firearms dealers, many of the people seeking firearms and ammunition are first-time buyers. Several reports indicate that the chief motive for people’s efforts to purchase a firearm is for protection of themselves and their families. Others have raised the issue that many counties are releasing inmates from the jails and that several law enforcement agencies have instructed their officers to not make arrest for certain offenses as a basis for seeking a firearm for protection.
On March 19, the Los Angeles County Department of Health issued an order which set forth a “Closure of Non-Essential Businesses.” Rather than setting forth which stores or industries, the Los Angeles order defines “Essential Businesses” in part as “other service providers who provide services to maintain the safety … and essential operation to properties and other Essential Businesses.” Then on March 26, via twitter, Sheriff Villanueva ordered that “gun and ammunition stores are not considered essential businesses and must close to the general public”. Villanueva tried to close the stores the day before, but was swayed by county lawyers who indicated to him that such business could be deemed “essential.”
On the same day, San Diego County Sheriff William Gore proclaimed gun stores as an “Essential Business.” Apparently, in response to efforts to shut down gun stores and potentially stop the domino effect that Villanueva’s conduct may spark, on March 28, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued a memorandum making clear that such outlets are “essential.”
The lawsuit, which was filed before Homeland Security issued its guidance, sets forth that the Second Amendment right to bear and keep arms is effectively infringed if the sole method of legally obtaining such arms is through duly licensed firearms dealers. The lawsuit states that “State and local agency and county policies may not, legislatively or through mere fiat … enforce a suspension or deprivation of constitutional liberties during a time of crisis.”
In addition to the requirement that firearm purchase must occur with a duly licensed dealer after a background check, California recently enacted a law that requires the purchase of ammunition through the same duly licensed dealers. The ability to purchase ammunition, by California law, must be done face-to-face through a gun store. Thus even if a person has a firearm, that person cannot purchase ammunition in Los Angeles County, effectively neutering the firearm if one does not have ammunition already.
Ultimately, the lawsuit seeks to challenge the order put out by the governor as vague and the decision to close the gun stores in Los Angeles County as a “de facto” violation of the Second and 14th Amendments. The lawsuit seeks to obtain a declaratory judgment deeming the order violates the two constitutional amendments and an injunction restraining the application of the order and the Los Angeles County policy of closing gun stores.
What appears to be of interest is not so much the mere constitutional arguments, but how the court will deal with them during this national state of emergency. Whether there is a sufficient argument to withstand intermediate scrutiny that justifies the closing of gun stores, yet allow other industries that have no mention in the constitution, is something to pay attention to.
When Villanueva first raised the closing of the gun stores, one of the justifications was that many of the buyers were first time gun purchasers. He reasoned that since they are unfamiliar with firearms, and with a shelter-in-place, the danger of firearms increases. Remember, the justification for the order is the COVID-19 health crisis and its rational of “social distancing.” If anything, Villanueva’s explanation for closing the stores undercuts the COVID-19 public health justification (e.g., so many people are going to the gun stores at any one time). There could be ways to mitigate the number of people like many essential businesses have already implemented (e.g., set number of patrons inside the store at any given time.)
On the other side of the coin, San Diego County Sheriff Gore was concerned about the increase of “black market” gun sales if stores were deemed “non-essential” and ordered closed. Whether these reasons will be sufficient to either uphold or detract from the validity of the order’s application to gun store closures in Los Angeles and potentially any other county in California in a time of crisis will remain to be seen.