Mass. Gun Shops Ask Court To Overrule Gov.'s Virus Closures

By Brian Dowling
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Law360 (April 15, 2020, 2:01 PM EDT) -- Massachusetts residents and gun stores have asked a federal court to reverse Republican Gov. Charlie Baker's decision to shutter firearms shops during the coronavirus pandemic, saying the move violates the Second Amendment by barring legal avenues to obtain guns.

Six residents, four gun stores and three gun policy organizations on Tuesday asked U.S. District Judge Douglas P. Woodlock for a restraining order or preliminary injunction to keep Baker and other state and local officials from closing the retail locations during the outbreak.

The request mirrors similar legal battles underway in California, North Carolina and New Jersey, where other public health decisions have closed stores or halted the issuance of new firearm permits.

In Massachusetts, the residents and stores say it's unfair to close gun shops when retailers selling alcohol, hardware and office supplies remain open for business. While private sales of firearms can continue, people cannot buy ammunition during the shop closures, according to the group, which filed suit last week.

"It is now impossible for a private citizen to purchase ammunition, and it is effectively impossible for most people to purchase a handgun, rifle or shotgun," the group said.

Guns and ammunition are more closely akin to free speech or reading than are hardware products or office supplies, the group said, arguing that there is an essential right to own and to be able to buy them even during a pandemic.

"The Constitution imposes a floor the government cannot go beneath, and in crafting emergency orders to address threats, including very serious ones, the government cannot go too far," the group said.

In late March, Baker included gun shops as "essential" businesses that could stay open during the public health response to the pandemic. But by early April, the governor removed firearms dealers from that list.

That decision triggered the lawsuit by residents of Suffolk, Barnstable, Bristol and Middlesex counties, gun stores in Fall River, Woburn, Westport and Hyannis, as well as the Firearms Policy Coalition Inc., Commonwealth Second Amendment Inc. and the Second Amendment Foundation Inc.

In addition to Baker, the lawsuit names as defendants Public Health Commissioner Monica Bharel, Criminal Justice Information Services Commissioner Jamison Gagnon and the police chiefs in Fall River, Woburn, Westport and Barnstable.

In their request for a restraining order and preliminary injunction, the group said blanket restrictions on being able to buy guns are inherently unconstitutional.

"A flat prohibition on the exercise of an enumerated constitutional right is unconstitutional on its face. No amount of interest-balancing will remove a right from the Constitution," the group said.

There is also no harm in allowing the stores to open in a safe fashion by observing public health recommendations for social distancing, as other kinds of retailers have done and gun stores have been allowed to do in other states, the group said.

Litigation in other states seeking to keep gun shops open has yet to result in a court reopening the stores.

In New Jersey, shops are challenging Democratic Gov. Phil Murphy's decision to keep them off the list of essential businesses.

In California, where state officials gave local officials power over closing gun shops, a similar request for a restraining order was denied by a federal judge after stores in Los Angeles County were reopened.

A federal judge in Northern California denied a request to immediately reopen the stores, contrary to the decision by officials in Santa Clara County. Still, the judge is allowing the sides to argue over a request for an injunction.

And in North Carolina, the Second Amendment Foundation and other groups are fighting a decision by the Wake Forest County sheriff to halt the issuance of new permits for pistols and concealed handguns until April 30, citing the outbreak of the virus.

Jason Guida, an attorney for the plaintiffs, said the gun stores want to be able to operate safely observing social distancing like other industries, but they are being stopped from doing so by an administration that has rarely taken the side of the gun industry.

"This is just another example of an administration that is not, in fact, Second Amendment-friendly," Guida said. "It's important that when we're making these types of decisions that they are based on public safety and not on politics."

Baker's office declined to comment Wednesday.

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

Baker, Bharel and Gagnon are represented by Julia E. Kobick of the 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.

--Additional reporting by& Jeannie O'Sullivan. Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

MCCARTHY et al v. BAKER et al


Case Number

1:20-cv-10701

Court

Massachusetts

Nature of Suit

Civil Rights: Other

Judge

Douglas P. Woodlock

Date Filed

April 09, 2020

Government Agencies

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