Federal Lawsuit in N.J. Challenges Total Closure of Gun Stores
From the motion for an injunction in Kashinsky v. Murphy, filed today in federal court in New Jersey, and supported by the Firearms Policy Coalition and the Second Amendment Foundation; I plan on blogging the response as well, when it comes available:
On March 21, 2020, Governor Murphy and Colonel Callahan entirely closed off any and all means for law-abiding private citizens to obtain firearms in New Jersey. At the same time these Defendants took this action, they have permitted numerous other retail businesses to continue their operations under limited conditions—meaning that this is not a situation where it is simply not possible to allow any retail businesses whatsoever to continue operation. Rather, the State has permitted the retailers of many other products—including alcohol, marijuana, and office supplies—to continue distributing goods to the public.
The Defendants’ actions have a particularly significant impact because in the State of New Jersey the only way a person can obtain a firearm is by means of a transaction consummated at the premises of a licensed gun dealer. Closing all gun stores, without exception, results in a situation where it is illegal to purchase a gun. Period.
To be sure, the COVID-19 outbreak is an existential threat that requires significant sacrifices and adjustments by all people, regardless of their views on firearms (or anything else). But no interest, no matter how compelling it may be, can justify the elimination of constitutional rights. Governor Murphy could not cite the seriousness of COVID-19 to justify bans on speech or reading, nor would the COVID-19 outbreak justify convicting people of crimes without providing them with trials, or searching houses door-to-door without warrants. The Constitution imposes a floor the government cannot go beneath. In crafting emergency orders to address threats, including very serious ones, the government must take care to ensure that it does not go too far.
Here, by completely prohibiting the acquisition of firearms, the government has gone too far—and this Court’s relief is needed to remedy an irreparable injury that exists right now…. [I]t is now impossible for a private citizen to purchase any type of conventional firearm (handgun, rifle, or shotgun) in the State of New Jersey …:
- Any person wishing to purchase a gun in New Jersey must use the services of a licensed dealer;
- The person must meet the dealer at the dealer’s licensed premises; and
- The licensed dealer must be able to complete a federal background
It has accordingly become impossible to purchase a firearm because Executive Order 107 prohibits dealers from being “open to the public” under any set of circumstances. And even if it did not, the Division of State Police has made the background check system unavailable to “licensed retail dealers,” which in and of itself makes completing a purchase impossible.
[A.] To Obtain a Firearm, a Person Must Appear in Person at a Licensed Premises, and There Must Be a Background Check[Details omitted. -EV]
[B.] Executive Order 107 and the Shutdown of the State Police Background Check Portal
Governor Murphy issued Executive Order 107 on the evening of March 21, 2020. See Executive Order 107, available at https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf (last visited Mar. 24, 2020). The order identifies various types of “retail businesses” as being “essential,” and it further provides that “[t]he brick-and-mortar premises of all non-essential retail businesses must close to the public as long as this Order remains in effect.”
The “essential” retail businesses include convenience stores, liquor stores, marijuana dispensaries, dry cleaners and office supply stores. Id. These “essential” businesses can remain open to the public, but they must “abide by social distancing practices to the extent practicable” such as making “all reasonable efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces.” Executive Order 107 did not include licensed firearms dealers in its list of “essential” businesses, and they therefore must be “close[d] to the public” for the duration of the order.
Shortly after Governor Murphy issued the order, the Division of State Police changed the portal that is used for conducting background checks so that it was impossible to submit any additional background checks. Furthermore, the Division of State Police posted a notice stating that it would process the background checks that had been submitted to it up to and including Thursday, March 19, 2020, but that it would not process background checks that had been submitted on Friday and Saturday, March 20-21, 2020, and all of these background checks remain pending at the present time….
… The Plaintiffs are
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