Monday, March 23, 2020

PA Governor: Marshmellow Peeps are "Life-Sustaining," production can continue during COVID-19 Emergency

By Josh Blackman - March 23, 2020 at 11:00AM

Tom Wolf, the Governor of Pennsylvania maintains that licensed firearm dealers are not "life-sustaining" businesses. Therefore, they must shutter during the COVID-19 emergency. But, thankfully, the Peeps factory in Bethlehem, PA can remain open. Yes, the popular marshmallow candy is "life-sustaining."

Regardless of what the nutritional facts are on the side of a box of PEEPS, the marshmallow treat's producers in Bethlehem believe that it's an emotionally healthy necessity and therefore, an essential business.

Just Born, the company behind PEEPS as well as Mike & Ikes, Hot Tamales and more, sent out a statement in the wake of Pennsylvania Governor Tom Wolf's order for all non-life-sustaining businesses to close down in order to stop the spread of coronavirus. Food manufacturing falls into the "life-sustaining" category, which includes PEEPS.

This sort of evidence would help the Supreme Court summarily conclude that the Governor's policy is completely irrational. Caetano v. Massachusetts provides a guide. That case declared unconstitutional Massachusett's ban on stun guns. But the two-page per curiam decision did not wade into Heller's unresolved issues.

Here, the Supreme Court could simply say that Pennsylvania's distinction of what is, and is not "life-sustaining" cannot survive even rational-basis review. Indeed, other states have designated firearm dealers as "essential." Stay tuned.

H/T David Sokasits

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