Last week, Judge Douglas P. Woodlock of the U.S. District Court for the District of Massachusetts issued a preliminary injunction that allows gun stores to resume operation in the Bay State as long as they adhere to a set of social distancing guidelines. The ruling is an important victory in the fight to protect Second Amendment rights during the ongoing COVID-19 crisis.
On March 23, Governor Charlie Baker issued COVID-19 Order No. 13, which required the closure of all businesses not deemed “essential.” The order did not designate gun stores as “essential” businesses.
On March 28, the Trump administration updated the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”) guidance on the critical infrastructure that should remain open during state shutdown orders due to COVID-19. The guidance identified “Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” as critical infrastructure.
Following the federal government’s determination, on March 31, Baker issued COVID-19 Order No. 21. Complying with the DHS guidelines, the order designated firearms retailers as “essential” businesses.
However, later that same day the Baker administration removed firearm retailers and shooting ranges from the list of essential businesses. This reversal was cheered by Massachusetts Attorney General Maura Healey, who declared to her Twitter followers, “Gun shops and shooting ranges are NOT essential businesses during a public health emergency.”
On April 9, a group of Massachusetts gun stores filed suit to halt Baker’s gun store closure on Second Amendment grounds. Later that month, NRA and its state affiliate Gun Owners’ Action League filed an amicus brief in support of the plaintiffs.
In the amicus brief, NRA made clear that Baker’s orders were an impermissible violation of the Second Amendment. The brief pointed out that in the landmark case District of Columbia v. Heller the U.S. Supreme Court invalidated a total ban on the acquisition of a single class of firearm – handguns. Baker’s order effectively prohibited the acquisition of all classes of firearms in Massachusetts and therefore are illegal under Supreme Court precedent.
Further, the brief noted that Baker’s order was impermissible under First Circuit precedent. In the 2018 case Gould v. Morgan, the U.S. Court of Appeals for the First Circuit adopted a controversial two-step analysis for Second Amendment cases. First the court must determine “whether the challenged law burdens conduct that falls within the scope of the Second Amendment’s guarantee.” If the measure does implicate the Second Amendment right then the court is tasked with determining what level of scrutiny to apply to the measure and whether the law is permissible under that level of scrutiny.
In Gould, the First Circuit “identified the core of the Second Amendment right as ‘the possession of operative firearms for use in defense of the home’ by responsible, law-abiding individuals.” As Baker’s order foreclosed the ability to acquire firearms for this purpose, the order struck at the core of the Second Amendment right.
The First Circuit also made clear in Gould that “A law or policy that burdens conduct falling within the core of the Second Amendment requires a correspondingly strict level of scrutiny.” Therefore analysis of the Baker orders demands strict scrutiny.
Strict scrutiny requires that the Government prove the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. A closure of all firearms-related businesses is not narrowly tailored. Moreover, the state cannot demonstrate that a blanket closure of firearm retailers will directly or materially alleviate the harms posed by COVID-19 considering the plaintiffs challenging the order stated that they would abide by all social distancing and workforce requirements for the operation of essential businesses.
Woodlock’s order underscores the excessive nature of Baker’s actions, as the standard for obtaining a preliminary injunction is rigorous. A plaintiff must show that they are likely to succeed on the merits of the case, show that there is irreparable harm without the injunction, demonstrate that the balance of equities is in their favor, and establish that the injunction is in the public interest. In granting the preliminary injunction, Judge Woodlock made clear that Baker’s orders are likely unconstitutional, cause irreparable harm to Bay Staters’ rights, and that this attack on Second Amendment rights was against the public interest.
According to Reuters, Baker told the press that his office will review Woodlock’s order and stated, “[w]e will certainly comply with any kind of judicial ruling on anything.” Sincere compliance with a lawful court order would mark a welcome change in the Baker administration. In late 2018, the Baker administration declared its intent to defy court orders issued by the state’s courts pertaining to the issuance of firearms licenses before backing down in early 2019.