By Brian Dowling

Law360 (April 28, 2020, 6:39 PM EDT) -- Massachusetts Gov. Charlie Baker's decision to close gun stores during the coronavirus outbreak does not impinge on core Second Amendment rights, his administration told a federal judge Tuesday, comparing the move to regulations like waiting periods and age limits that temporarily delay firearm purchases.

Attorneys representing Baker and other officials in his administration urged U.S. District Judge Douglas P. Woodlock to deny a request by retailers and citizens to issue an injunction reopening the stores.

The government said Baker's COVID-19 orders closing non-essential businesses, including the gun shops, "fall outside the core of the Second Amendment because they do not heavily burden the right of law-abiding, responsible individuals to use arms in defense of hearth and home."

"They temporarily postpone in-store sales of firearms while the public health imperative to maintain social distancing is most acute," government lawyers said. "Like waiting-period laws and laws that require individuals to be 21 to purchase firearms, the orders temporarily delay firearms acquisition."

Quoting century-old Supreme Court case law about both Louisiana's quarantine of a French-owned steamship and a Massachusetts compulsory program vaccinating people against smallpox, government lawyers argued that constitutional-right claims aren't immune from emergencies.

In those cases, "asserted constitutional rights must yield to emergency actions taken by the state to protect the health of the citizenry," Baker's attorneys said. "The same result should obtain here."

The two lawsuits filed by Massachusetts citizens, closed gun retailers and advocacy groups, claim the government's decision to deem the stores non-essential — keeping people from buying guns — violates the Second Amendment. Also, one of the suits says that abrupt closure without hearings or notice violates their rights to due process.

The groups sought an injunction reopening the stores and blocking Baker and others from closing them back down — a petition that garnered support from gun lobbyists including the National Rifle Association and the National Shooting Sports Foundation.

At the center of the case is a dispute over the type of constitutional review the court should use. Under the "strict scrutiny" approach recommended by the gun groups, the government would need to prove the restriction had a compelling government interest and was narrowly tailored. Baker's attorneys on Tuesday called for a looser "intermediate scrutiny" approach — in which the government would need to show the closures are "substantially related to an important government objective" — because the orders don't bar gun ownership.

Courts have upheld gun restrictions like waiting period laws under such intermediate scrutiny, the government lawyers said.

The opposition filing attacked the plaintiffs' arguments that citizens need the stores open because they don't feel safe buying in a private transaction from a stranger because of the the virus' prevalence.

"If true, those concerns should prevent each of the individual plaintiffs from feeling comfortable buying a firearm from a stranger at a gun retailer, too," Baker's attorneys wrote. "Notably, none of the individual plaintiffs attest that they have a prior relationship with employees of any gun retailers, including any of the dealer plaintiffs."

The government attorneys also went after a line of argument put forward by the NRA: that the need for guns is greater now than ever because of the release of prison inmates and the possibility that police response times could be slower.

Jeff Farnsworth of the Massachusetts Chiefs of Police Association said in an attached declaration that crime is decreasing, according to his monitoring of statistics across the state. To the extent violent crime is still occurring, the police response has been no different than before the COVID-19 outbreak. 

The residents and gun stores are represented by David D. Jensen of David Jensen & Associates, Jason A. Guida of Principe & Strasnick PC, J. Steven Foley and Andrew J. Couture.

Baker and other state officials named in the suit are represented by Gary Klein and Julia Kobick of the Massachusetts Office of the Attorney General.

The case is McCarthy et al. v. Baker et al., case number 1:20-cv-10701, in the U.S. District Court for the District of Massachusetts.

--Editing by Amy Rowe.

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