Gun owners and would-be gun purchasers are arguing that state measures to prevent the spread of the novel coronavirus infringe on their Second Amendment rights. To the extent the premise is correct—the Second Amendment guarantees access to a firearm store—it’s not clear that their conclusion follows.
In response to the COVID-19 pandemic, forty-five states have issued statewide stay at home orders. These orders are based upon guidance from the Center for Disease Control and other public health agencies that have identified social distancing as the best tool to limit the spread of the coronavirus. Most of the orders include, among other things, provisions calling for the closure of all but “essential” businesses, prompting a common question: What constitutes an “essential” business?
Most states include in their list of “essential” businesses hospitals, grocery stores, pharmacies, and infrastructure services (e.g., plumbing). The NRA and other similar organizations have been challenging the definition of “essential” in the states that do not include gun stores in the definition. The plaintiffs—first-time gun owners—argue that the state’s action makes it impossible for them to exercise their constitutional right.
The argument is not new. There are countless cases where individuals have challenged government conduct on the basis that their property right is burdened or destroyed by a regulation or by direct government action. Such action, the argument typically goes, constitutes a taking. There are numerous parallels between the right to keep and bear arms and property rights. Among other things, most courts understand both rights to be fundamental, individual rights that prefigure ratification, are subject to bright-line rules, and their respective doctrines often place an emphasis on history and tradition. Additionally, as I argue in an article forthcoming in the William & Mary Bill of Rights Journal, property principles arguably inhere in the Second Amendment, and takings doctrine has particular relevance in certain areas of Second Amendment jurisprudence. Thus, takings law could similarly be instructive in the context of the recent gun store closure orders during the COVID-19 pandemic.
We know that since before the founding, courts have affirmed government action burdening—or in fact destroying—an individual’s property right. This notion is even more true in moments of crisis like war and pandemics. For example, in Seavey v. Preble the Supreme Court of Maine permitted state physicians to destroy homes believed to harbor the smallpox virus. The court noted the government’s conduct was a “gross outrage,” but because there was a great deal of uncertainty surrounding the science of the disease, the court recognized the state was within its authority to take action it believed necessary to protect public health. Even if that meant infringing on a fundamental, independent, constitutional right. More recently, in a landmark takings case—Miller v. Schoene—the U.S. Supreme Court affirmed Virginia’s order destroying particular privately–owned trees throughout the state, as the trees were known to carry a disease that threatened the state’s apple industry.
These are just two examples. But both cases, and others like them, share a common feature: where the state acts to preserve the public health and welfare, but in so doing burdens an individual right, lawful government conduct is typically tailored towards the source of harm or health risk. In Seavey the government action was focused on the property rights of the homeowners whose dwellings were infected. And in Miller the order was focused on the cedar trees that likely carried the infection—not oaks or pines. In the COVID-19 context, current expert guidance suggests that everyone is a possible vector of the disease. Physical proximity is a grave concern because anyone can both contract and transmit the virus. The stay at home orders are crafted with this in mind. Permitting opportunities for individuals to come into close contact with others who may be infected presents tremendous risk. States have thus far responded by limiting those opportunities to only vital businesses and services.
Similarly, there are cases where the government has prohibited access to an individual’s property to protect public health, morals, and welfare. Here, too, individuals challenge the action as a violation of their individual right. For instance, in Andrus v. Allard the federal government prohibited the sale of eagle feathers. The Court affirmed the regulatory action was no taking. Necessarily implied from the “right to sell” is the “right to buy,” but in both instances the Court concluded that the right is but a single strand in the bundle of rights, and burdening a single strand does not constitute a violation. Recall, the Court told us in Heller that the core Second Amendment right is self-defense. In the challenges brought against state stay at home orders, many plaintiffs argue that they do not feel safe during the pandemic and that the orders are infringing on their Second Amendment right. Self-defense does not require a firearm. Whereas, for example, without access to an abortion provider, how does one exercise their right to abortion? This is, arguably, one way to distinguish the orders prohibiting access to abortions from orders prohibiting access to gun stores.
Additionally, temporary or non-substantial burdens on access to one’s property are typically permissible. The state orders do not suspend the ability to defend oneself; they temporarily pause the ability to purchase firearms in a store. Many of the state orders closing all non-essential business include sunset provisions: they elapse at a certain date. The Pennsylvania Supreme Court relied on this temporal reasoning in its decision last week rejecting a takings challenge to the state’s stay at home order. Every state that has implemented a stay at home order thus far has indicated the closure of non-essential businesses is a temporary act tied to flattening the curve. This suggests that such temporary burdens on the Second Amendment right similarly do not trigger constitutional protection.
It is important to note that the questions surrounding whether gun stores are “essential” businesses and whether states can close them sit at the intersection of law and politics. Thus far, the states that have reversed their decision and added gun shops to the list of “essential” services have not done so under court order. Instead, the challenges have primarily been litigated in the court of public opinion, which illustrates an important takeaway: it’s not the Second Amendment that is doing the work to change the states’ position. Not the “judicial” Second Amendment, anyway.
Adam B. Sopko is a student at Northwestern University Pritzker School of Law and the Editor-in-Chief of Volume 115 of the Northwestern University Law Review.