Summary
During unprecedented and devastating crises, some governors, through emergency powers granted to them constitutionally and/or by statutes, assume far-reaching powers that can negatively impact our nation’s Second Amendment right to keep and bear arms. During the COVID-19 pandemic of 2020 and 2021, some governors enacted executive orders that created unnecessary and autocratic restrictions on firearm ownership within their states. In response to these restrictive executive orders, legislators are encouraged to reexamine the emergency powers granted to their governors and work towards ensuring that the ability to purchase, own, and use firearms are rights maintained during emergency declarations.
Introduction
During a state of emergency (such as a natural disaster or pandemic), many states grant their respective governors the authority, provided by their state’s constitution, to implement timely measures to guide and assist the state’s citizens through the difficult times. However, these powers have recently been brought to the national forefront during the COVID-19 pandemic due to governors’ decisions in some states to institute unilateral policies that negatively impact the accessibility of firearms, ammunition, and safe firearm practices. The Second Amendment has wide applications that extend to many more purposes than just self-defense. Hunting and recreational shooting – pursuits that both require “the right of the people to keep and bear Arms” – are two primary examples of the functionality and necessity of this Constitutional right. The Second Amendment further contributes to American industry, providing jobs and funding for wildlife conservation through the Pittman-Robertson excise tax. The recent COVID-19 pandemic highlighted the deeply concerning issue of governors implementing their unchecked (or even unchallenged) powers to restrict the legal exercise of the Second Amendment – a right which shall not be infringed.
Issue
In extraordinary times, such as during the COVID-19 pandemic in 2020 and 2021, an enormous amount of pressure rests on state leaders to take decisive action to help safely steer their citizens back to a sense of normalcy. It is for this reason that states have emergency powers established in their statutes and constitutions. During these times, governors have the ability to limit both the operation of certain businesses and the public’s participation in specific activities. While the federal government does provide states with guidance in using these powers – such as the Cybersecurity and Infrastructure Security Agency’s suggestions as to which businesses are essential during the COVID-19 outbreak[1] – states are generally free to choose as they please.
Two examples of states that abused emergency powers and infringed upon Second Amendment rights in 2020 include New York, which forced firearms retailers to close their stores,[2] and New Mexico, which required the closure of firearms manufacturers, retailers, and ranges while permitting other businesses to remain open.[3] Similarly, with the enactment of a state of emergency, Virginia passed multiple anti-firearms bills.[4] As was evidenced throughout the COVID-19 pandemic, anti-gun elected officials are willing to use unusual circumstances as an opportunity to restrict the Second Amendment rights of law-abiding citizens while they are distracted with the urgency and uncertainty emergencies like the public-health pandemic.
In times of crisis, when law enforcement and other agencies are spread thin, citizens look for ways to protect themselves and their families. Many individuals, including first-time gun owners, turn to firearms as a source of security and protection,. When governors use their emergency powers to close firearm retailers, ranges, and manufacturers, they are not only infringing on Second Amendment rights, but they are also limiting the available options people have for protecting their families or in gaining proficiency and learning safe handling techniques of their new firearms.
Points of Interest
- In 2021, several states passed legislation protecting Second Amendment rights during times of emergency. These include ID, KS, TX, and WV.
- Texas House Bill 1500 – Signed into law by Governor Sportsmen’s Caucus Member Governor Greg Abbott, this bill prevents the governor from prohibiting or restricting the business or operations of a firearms or ammunition manufacturer, distributor, wholesaler, supplier, retailer, or a sport shooting range during a state of emergency. This law also protects the transportation and shipment of explosive firearm components.
- In 2020, 30 states deemed firearm retailers essential and kept them open during the COVID-19 pandemic. Pennsylvania declared these businesses to be “life-sustaining,” while South Carolina Governor McMaster stated that “it’s a constitutional right to have and bear arms.”
- The beginning of 2020 saw a record number of firearms being purchased in the United States. Many of the people buying firearms during this period were first time gun buyers.
- In May of 2020, New York legislators moved to introduce a bill to limit the Governor’s emergency powers because of laws being enacted without going through the legislative body.
- In March of 2020, there was an 80% increase in purchased firearms compared to March 2019.
- In 2020, South Dakota passed HB 1296, which prohibits any government official or entity from regulating and prohibiting the lawful possession, carry, sale, transfer, and other lawful use of firearms.
- Several states’ statutes, including CO, FL, ME, TX, WI, and WV, give the power to end states of emergency to the respective legislative body. Colorado’s statute states “the general assembly, by joint resolution, may terminate a state of disaster emergency at any time.”
- Texas’ Sec. 433.0045 explicitly prohibits “seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition.”
- Georgia O.C.G.A. 38-3-51 states that the sale of firearms and transportation of firearms may be suspended or limited during times of state of emergencies, not including an “individual firearm owned by a private citizen which was legal and owned by that citizen prior to the declaration of state of emergency or disaster or thereafter acquired in compliance with all applicable laws of this state and the United States.”
- In 2005, following the state of emergency in New Orleans caused by the devastating Hurricane Katrina, the local police department confiscated hundreds of firearms. The city of New Orleans agreed to return the firearms before a court case could be brought against them by several second amendment advocacy groups.
- In 2012, a U.S. District Court found several North Carolina statutes that restricted the possession, transportation, and use of firearms during times of state emergencies unconstitutional.
Moving Forward
The COVID-19 pandemic emphasized the necessity for legislatures to uphold Second Amendment rights during times of emergency, and, where necessary, to review gubernatorial powers to ensure that their citizens’ Second Amendment rights are not infringed. Common firearms sports, such as recreational shooting and hunting with a firearm, enjoy historically high safety records and can be practiced and enjoyed while implementing safe social distancing. Recreational activities related to shooting sports provide clear and important monetary benefit to local and state economies, as well as funding for conservation of our wildlife resources. Finally, firearms provide critical defense to families and individuals, especially during emergencies, when law enforcement agencies and their resources are spread thin.
