As I See It: Gun shops essential? Exposing fallacies in Constitutional argument

Gov. Charlie Baker's decision not to categorize gun shops as "essential businesses" that may remain open during the current state of emergency has been met with strong opposition from pro-gun advocates. For example, the general counsel for the National Shooting Sports Foundation called the decision "inexcusable," and accused the governor of "further[ing] an anti-gun agenda that denies Americans their rights."

Such criticisms appear to have succeeded in persuading the Trump administration and several states to revise their own closure guidelines and permit gun retailers to remain open for business. But whatever political force these arguments may have, they have little basis in Constitutional law.

Consider the claim made by the Second Amendment Foundation that "no malady, however severe, can nullify or even temporarily suspend the exercise of a constitutionally delineated fundamental right." This claim is categorically and demonstrably false. The Supreme Court has consistently held that even the most fundamental of rights and liberties can be curtailed if the government has a sufficiently compelling interest. The right to keep and bear arms is no exception.

To the contrary, even in the course of establishing a much more robust right of self-defense than had previously been recognized under US Constitutional law, the Supreme Court in D.C. v. Heller expressly noted that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Gun rights are thus subject to regulation just like any other rights.

And daily life vividly illustrates the extent to which many other rights have indeed been subject to regulation during the coronavirus pandemic. The First Amendment right to free exercise of religion is specifically enumerated in the Constitution, yet there can be no doubt that this right is presently subject to significant limitations in the name of public health and safety. Gatherings of more than 10 people are prohibited under Baker's order, and no exceptions have been carved out for religious gatherings. The resulting burdens on religious exercise are keenly felt by many people--particularly as we approach the season of holidays like Easter and Passover.

Other rights and freedoms have similarly been burdened. The right to travel has long been regarded as fundamental in Supreme Court jurisprudence, but limitations on that right abound in the current climate. People have been told not to leave their homes other than for essential trips; hotels have been closed; and new arrivals to states have been asked to self-quarantine for weeks. The right to suffrage is another example. The right to vote has often been described as one of the most fundamental of all freedoms insofar as it is the means of protecting other rights and liberties, yet many jurisdictions have at least temporarily burdened this right by postponing their elections until the health crisis abates.

None if this is to suggest that all regulations and burdens on fundamental rights are permissible merely because we find ourselves in the midst of a global pandemic. The degree of the burden must always be balanced against the weight of the public interest, and some burdens may be too severe to withstand scrutiny. The attempt by some states to suspend access to abortion services illuminates this point. A woman's fundamental right to terminate a pregnancy is one that by its nature is time-sensitive. The right must be exercised before the point of fetal viability, or it may be irreversibly lost altogether.

By contrast, there is no correspondingly crucial time pressure associated with rights to purchase firearms. There is absolutely no evidence of rampant looting or breakdowns in social order that would even remotely support the argument that exercise of Second Amendment rights demands immediate access to gun shops. Temporal burdens on abortion rights are thus different in kind from temporal burdens on other constitutional rights--for in the context of abortion, access delayed is access denied.

At bottom, the argument for exempting gun shops and shooting ranges from closure orders is not about giving equal respect to gun rights; it is about giving those rights preferential treatment and elevating them over other fundamental freedoms in a time of shared sacrifice. As a matter of political rhetoric, that argument may be a powerful weapon. But as a matter of Constitutional law, it is little more than a damp squib.

René Reyes is a professor of Constitutional law at Suffolk University in Boston.

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