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Judge rules state can't shut gun stores just because we're in a state of emergency
By adamg on Thu, 05/07/2020 - 4:13pm
A federal judge today issued a preliminary injunction that bars Gov. Baker from continuing to shut gun shops because, after all, come on, Charlie, Second Amendment. And that goes for you too, Maura.
US District Court Judge Douglas Woodlock did make some concessions to the current public-health emergency: Gun stores can only sell guns by appointment, and no more than four of those an hour, people inside shops will have to stay at least six feet away from each other, employees will have to wear face coverings and stores will have to provide hand-washing sinks and soap to employees - and the time to use them. Sick employees and customers have to stay home. Stores will also have to supply alcohol wipes to both workers and customers, but only "if available," because the absence of hand wipes is hardly enough to shut a gun shop down. after all.
Gov. Baker had ordered gun shops closed as non-essential in his state-of-emergency declaration in March. Gun shops and Second Amendment groups, of course, promptly sued, arguing, in part, that, especially during a pandemic, Americans need to arm themselves against the violent hordes that might be unleashed:
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. It is precisely times like these that the Plaintiffs and the Plaintiffs’ members need to be able to exercise their fundamental rights to keep and bear arms.
Over the course of two days of hearings this week, Woodlock indicated he agreed that a deadly pandemic is not reason enough to curtail people's Second Amendment rights.
Barring a successful appeal by the state, Woodlock's order goes into effect at noon on Saturday.
If you don't already have a gun license, don't try to make an appointment with your local legal gun dealer, though - the order only applies to whether stores are allowed to open, and leaves untouched the state's gun-permitting regulations, which require would be gun owners to get permission from their local police department first.
| Attachment | Size |
|---|---|
 Judge's order | 38.27 KB |
| Complaint | 110.16 KB |
| Response by the state | 183.52 KB |
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Comments
If you can go into Stop and Shop or a small convenience store
If you mask up, A gun shop should not be off limits.
Makes sense to me.
Unless you plan to shoot, kill, and eat your next meal
there is absolutely nothing 'essential' about a gun. I'm sorry to see our Governor's sensible judgment be overruled.
That's partly the point of
That's partly the point of the ruling. It doesn't matter whether you/me/Baker believes a gun is essential or not. In the USA, government agencies and officials are not granted the authority to close down gun stores.
That is where the ruling is wrong.
The 2nd Amendment, no matter how distorted and stretched in its interpretation, has nothing about sales.
Within reason though...
It does say you have the right to have something (arms). If the state does not allow you to obtain them, surely that could be seen as an infringement of that right.
State is not preventing acquisition of firearms.
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Nothing in this refers to how firearms are acquired. Nor is the temporary closing of gun stores in any way related to the possession of guns.
Add that closing the stores is temporary; therefore there is no permanent attempt to closing that particular channel of acquiring guns.
How else might a gun be acquired during this period? Inheritance, trading and bartering are are ways that guns can be acquired.
Add of course the fact that the text of the 2nd Amendment is self-limited to "a well regulated militia."
Amazes me how far folks try to stretch a simple statement to satisfy their need to own objects that exist for the primary purpose of causing death. Hopefully the love of violence that is promoted as a US value will finally itself find the grave of immoral beliefs.
Within reason though...
It does say you have the right to have something (arms). If the state does not allow you to obtain them, surely that could be seen as an infringement of that right.
From "Heller v. District of Columbia"
"Like most rights, the right secured by the Second Amendment is not unlimited."
"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Which could soon change based on the current court ...
But, yes, for now, Massachusetts and other states have the right to place certain restrictions on gun ownership and sales - and yes, the SJC and judges in the federal First Circuit cite that section of the Heller decision every single time somebody challenges Massachusetts gun laws. For example.
Gotta admit, I'm confused then
Why does the government have the right to close any store then, by that logic? Surely any open business would fall under the First Amendment as a place promoting free expression or peaceable assembly?
Not really, when you can get
Not really, when you can get in your expression or assembly right outside the store.
I think the difference is
I think the difference is every store not just any store. It's impossible to get guns when not a single local store is open.
No it's not?
Can't you still do private sales? It's less convenient, sure, but there are still ways to get guns even if no stores are open.
please see the last paragraph
please see the last paragraph here: https://www.loc.gov/law/help/peaceful-assembly/us.php
"The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order.".
Courts have repeatedly ruled that a public health emergency falls into this category.
Nothing in the Constitution stops Baker
Nothing in the Constitution states that a state govenor may not apply to gun stores the conditions imposed on other non-essential stores.
Second Amendment has nothing about buying and selling guns in a store:
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
So are you in favor of deregulating firearms sales?
If you do not support selling guns in a regulated environment, are you saying that perhaps we need to deregulate the firearm industry and allow for private transactions between citizens with no government oversight?
This is great - Massachusetts is suddenly full of liberty loving folks who have replaced the statists. This is a move in the right direction (and I mean right in more ways than one).
This is an obvious logical
This is an obvious logical fallacy.
"Second Amendment has nothing about buying and selling guns in a store"
does not mean, or even hint at the idea, that they "do not support selling guns in a regulated environment".
You don't help your cause by posting silly things like that.
How is stopping the sale of
How is stopping the sale of guns not infringing on that right? That's a pretty strange reading if the second amendment somehow means you can have guns if you happen to already have them.
It doesn't explicitly say that a store can't be closed, but if closing the store gets in the way of people bearing arms, then the store can't be closed.
Join the well regulated militia
The National Guard has plenty of guns.
The national guard is the opposite of a militia...
For what I assume are pretty obvious reasons.
Not obvious to me
Perhaps I'm unenlightened. I thought the National Guard met this definition of a militia pretty well:
Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, published 1776.
National guard is the modern militia
Sorry, but a militia as defined in the 18 century and referenced in the Constitution is well regulated. In other words it is 1) an group of people, not just individuals which 2) have rules and required guidelines.
Still, I am interested in what you refer to as pretty obvious reasons. Please present the reasons.
Yea sorry not obvious.
What should be obvious is that the National Guard would never stand up to the FBI, ATF, Navy, etc. In fact, they are a part of the Federal Government and that is written specifically into it's dual role.
Also not everyone can join the National Guard (age and physical restrictions), that also infringes on your rights.
The national guard as we know it today didn't exist until 1901:
10 U.S. Code s. 246 (1901)
Specifically calls for an unorganized militia (and includes the National Guard).
We can debate the intent of the 2nd Amendment (formed to protect states against federal military power) and you can debate even further what some of the grammar in the 2nd Amendment (commas, capital letters, sentence structure). The fact that an "unorganized militia" is right there in the US codes tells me that the National Guard is not the militia, or isn't the only militia anyway. (also other semantical reasons where the National Guard has limits on age and gender). This might be important because the 2nd Amendment mentions the world "people" regardless of age at least (we know that "people" may have meant whites, property owners, men, etc)
Fundamental flaw in that obviousness
The 2nd Amendment does not refer to a standing army. The original writers of the Constitution feared a standing army. They did not want a standing army. But there had to be some kind of defense. Therefore a "well-regulated militia."
To state that the 1901 law defines the word as used in the 2nd Amendment is to state a false premise. Same word but different meaning. In the 18th century a militia was composed of the average person.
The 1901 law defines the term here:
The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
An organized militia here is the National Guard and Naval Militia. But it does not reference the well-regulated militia addressed in the Constitution.
The unorganized militia is vague. It defines itself by referring to the same word. That invalidates the definition. Similar to saying that the word definition refers to the definition of a word. Doesn't tell you what it means.
Add that Scalia etc. were tightly focused on "original meaning." In other words the 1901 law is not the original meaning. Scalia also argued that is the Constitution needs to be "interpreted" beyond the original meaning then the process is to pass a Constitutional amendment which interprets or changes the original meaning. That has been done several times, including in the 14th, 18th and 21st amendments.
From Scalia: "It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."
By the way, punctuation is vitally important to understanding. Think about "eats, shoots, and leaves" and "eats shoots and leaves." This reminds me of a case out of Maine that involved millions of dollars. The case pivoted on a comma. Punctuation matters.
There are 2 versions of the 2nd Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
and,
A well regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Even without the first comma, the first phrase still clearly refers to a well regulated militia. Not an extension of the standing army as the 1901 law addresses, but a militia of people (note that it does not refer to citizens).
What is most important however is this:
Are we a nation devoted to peaceful solutions, equality of citizenship, a nation that holds together?
Or are we a nation that approves of each person having the capability to engage in violence of an order that could not be conceived in the 18th century?
Very well said.
But the original writers of the Constitution also feared Too much federal power, and would most likely not equate today’s National Guard with the militia concept they had in mind.
But your last statements are the most important. The founding fathers would also not approve of how guns are being used today and if they knew what is happening, they probably would have worded the 2nd differently.
And we all know how courts have ruled about people having the right to bear arms so the entire militia part of the amendment doesn’t matter anyway.
The inspiration for the well
The inspiration for the well regulated militia in the Constitution was a group that could fight against the government if necessary. While I do think the National Guard being organized on a state level is a step in that direction, it clearly doesn't fit the point of the amendment.
I don't think this was necessarily meant to be directed at *me* in particular, but in case it matters, I do not own any guns and I do not have a license and I am not currently planning to get a license. I do not, however, think that telling people to join the National Guard in order to meet their second amendment rights is any more reasonable than telling someone to drive across a state to the only hospital that can perform an abortion in order to meet their rights guaranteed by the RvW decision.
If enough roadblocks are put in the way it effectively removes your ability to exercise your rights. Even if it's not a right I'm trying to exercise, it should be protected as long as the law says that it should.
Edit: I really need to take the type to add a subject
Not completely accurate
A well regulated militia is referenced because there was not standing army. Actually a standing army was initially feared. The hope was that a citizen's militia was sufficient.
The War of 1812 showed the nation that a citizen's militia was not enough and that a standing army was needed.
Even the National Guard site refers to the bodies of men that preceded that National Guard as the organized militias that existed as far back as 1636.
The National Guard, more than the standing army, is the first well regulated militia, which is what the 2nd Amendment refers to.
Where do you live?
I'm struggling with trying to respond because of equality.
I'm only looking at this from 1 perspective at this time and I know there are many perspectives.
I live in Dorchester, In my eyes, illegal sale of firearms is certainly not an essential.
Now the fact that I live in Dorchester is that a variable a why I believe they should be closed. Of course.
Let's be honest most gun owners had enough guns to protect your family. Is an ego tripping off the Constitution.
You can go to a place selling
You can go to a place selling food because people need food to live. You can't go to a furniture store or toy store or a book store so why should a gun store be different?
Book stores
*could* use the same reasoning as this decision to claim that the First Amendment requires that they are allowed to open. But book store owners and customers, unlike gun nuts, are generally sensible people who understand a public health emergency.
You can also go to a liquor store
And I think it's a serious stretch to argue that alcohol is truly essential. Heck it was constitutionally prohibited for over a decade. Construction is still permitted (although not in Boston) even though I doubt many people are moving to Massachusetts right now. It really doesn't help the Commonwealth's case that golf courses were allowed to open today, either.
If the owners of businesses are willing to undertake reasonable measures to minimize the transmission of infectious diseases they should be allowed to reopen -- and that goes for furniture, toy, and book stores. But most of them probably can't work with the health precautions being enforced here.
Because, whether you like it
Because, whether you like it or not, owning guns is a right protected by the bill of rights. Buying furniture or toys or books* is not. It may not seem essential, but according to our Constitution it is.
* well, books might be debatable, but since they can be easily obtained without a physical store it probably doesn't get in the way of the first amendment.
Chalk One Up For The Good Guys
Have a great afternoon everyone!
Yay more death! Thanks
Yay more death! Thanks ammosexuals!
Over 1,000 prisoners released in the last month...
More death indeed!
Damn that Bill of Rights/Constitution thingy!
Foiled again, Maura!
Somewhere in the great beyond, there's a bunch of guys from Lexington who are smiling quietly.
Judges not always the brightest stars
Nothing in the 2nd Amendment, or in the Scalia interpretation, suggests or even hints about the sales of guns.
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Nothing about selling in a store during the middle of a devastating pandemic.
This is the kind of decision I would expect in a Stephen King novel to demonstrate how jurists sometimes are just plain stupid.
Depends on what the definition of "keep" is.
I think the Founders were worried that a new government might try and take away the arms already held by the people (which were everywhere) more than the availability of new ones (people only needed 1 or 2 guns). They certainly couldn't have anticipated the easy availability of military style weapons designed for mass shootings, cheap handguns, 3-D printed guns, gun components that can be assembled into a weapon with no serial numbers (ghost guns), etc.
That being said, this doesn't seem like a 2nd Amend question anyway, but an Equal Protection issue, gun shop owners similarly situated to other small shop owners NOT being treated similarly and there being a less intrusive ( like the Judge's order) way of addressing an otherwise compelling State interest, preventing the spread of the virus. But idk, if this is what counts as "freedom" for some people, I hope they now feel fulfilled in their lives.
Exactly.
This is 100% an equal protection issue.
Well in the Founders' Day
The firearms which were kept by ordinary citizens were pretty much state-of-the-art. The long rifles used by frontier settlers were quite effective for guerilla-style attacks on British soldiers from distant hiding places. Firearm manufacture was what we'd call "artisanal" today with gunsmiths in small communities making rifles for local customers. Guns certainly didn't carry serial numbers and the gunsmiths made the components. You are correct, though, that a mass shooting would have been near impossible with the rifles and muskets of the 18th century.
So the analogy isn't entirely complete, but back in the 1790s private citizens owned what were the military assault weapons of the day.
Cars and horses
Both provide transportation. Beyond that any direct comparison fails.
A musket may have been state of the art in both rural and urban settings. But a simple fundamental comparison would set the musket as a horse and the AK-47 as a car that can travel at 120MPH. Who has the right to drive their car at 120MPH in a city?
For the record, the weapons
For the record, the weapons that the founders were talking about were exactly "military style." At the time, civilians possessed the same (and sometimes better) weapons as the military. And pretty much all guns back then were "ghost guns." Serial numbers were not required in the US until 1968, although some manufacturers put them on their weapons as early as the 19th century (our own mass based Smith and Wesson was an example of one that did). Remember, that the first battle of our revolution (Lexington & Concord) stemmed from the private possession of cannons. This nation was literally founded on civilians possessing military weapons.
Not an equal protection issue
Gun shop owners were addressed as the majority of small businesses were. The key question is why should gun shops be an exception when nearly all other small shops are closed?
The 2nd Amendment does not address the business of guns. It only address a "well-regulated militia.)
Forcing the 2nd Amendment to include gun shops is a perversion of the 2nd Amendment. Unfortunately not even judges can be trusted to be fair and impartial. They will bring in their own biases even when those biases result in violating basic morality. Dred Scott was one of the earliest of wrong, nay, immoral judicial decisions. While the gun shop decision is minor in the grand scheme of things is it another example that sometimes judges are just plain wrong.
That's great, but what are
That's great, but what are they going to do about stolen guns which are causing Boston's shootings?
Magoo sez
When can Magoo open up Magoo’s store? It’s called Magoo’s Left Handed Emporium. It makes Magoo so sad that it can’t open. Magoo thinks the governor is racist against lefties like Magoo. Magoo.
I’m sad too Magoo
I need a left handed can opener.
I'm no gun (expletive)
But I'm happy that our bored sociopath governor was sided against.
the 2nd amendment
guarantees me the right to have the firearms well regulated in this country
You alone are not a well regulated militia
The 2nd Amendment refers only to a "well-regulated militia."
How many of you
who are expressing opinions as to whether the judge's ruling was good or bad, have actualy read the text of the ruling, looked up the citations, etc.?
I know I haven't, nor do I have the necessary legal background to have a well-founded opinion as to the quality of jurisprudence here.
Adam didn't post the ruling
Only the order. Is there also a ruling available online?
Reminds me of the Protestant revolution
It was a revolution in that Christendom was structured with an exclusive set of people having both the ability (literacy) and the "right" (ordination) to read and interpret Biblical text.
As citizens we have a right to develop and communicate ideas regarding any law, whether the law descends directly or indirectly from the Constitution.
So I argue that you do have a right and the ability to develop an opinion as good as y you possibly can.
The biggest religion in the US is the secular religion. Our primary formative and sacred texts include the Constitution. As a republic that also operates on democratic basis is vitally dependent on each person doing their best to interpret those sacred texts.
Academic detachment
I love the academic detachment of most of these comments. Meanwhile, domestic violence is rising since the start of the pandemic. And when the deaths increase, I'm sure you'll find a way to tell yourself that there's no connection.
Now is not the time for constitutional fundamentalism
People are dying by the thousands. As far as I'm concerned, the right of the larger community to life and safety trumps anyone's right to have a gun. Lincoln arrested people arbitrarily during the Civil War; in one instance he scooped up an Ohio congressman who had criticized the war, and handed him over to the enemy. This was done to protect the larger community against insurrection.
One of the biggest dangers we face right now is the breakdown of order. The governor's hands should not be tied.