Monday, April 27, 2020

Virginia Court: Governor Lacks Power to Close Gun Ranges

By Eugene Volokh - April 27, 2020 at 07:50PM

Virginia Gov. Ralph Northam closed gun ranges, alongside K-12 schools, churches, restaurants, and "recreational/entertainment businesses," because of the epidemic. Today, Judge F. Patrick Yeatts held (in Lynchburg Range & Training, LLC v. Northam) that the governor lacked the power to do that, under Virginia law:

[1.] Though Virginia law "grants the Governor broad emergency powers, § 44-146.15(3) constrains the Governor from 'limit[ing] or prohibit[ing] the rights of the people to keep and bear arms as guaranteed by [the Virginia Constitution's right to keep and bear arms] or the Second Amendment …, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms.'"  (The statute actually says the emergency statute does not "[e]mpower the Governor" to "in any way limit or prohibit the rights of the people to keep and bear arms …," with an exception not relevant here.)

[2.] "The Governor also argues that his authority to close indoor gun ranges emanates from his chief executive power and duty to 'take care that the laws be faithfully executed.' The Governor appears to argue that, when he declares a state of emergency, he can ignore any law that limits his power, even laws designed to limit his power during a state of emergency. Such an interpretation would defeat the reason for making § 44-146.15(3) and render the statute meaningless."

[3.] Section 44-146.15(3) covers gun ranges, especially since courts have recognized that the Second Amendment generally includes the right to train in the use of guns and not just the right to possess them. See, e.g., Ezell v. City of Chicago (7th Cir. 2011).

[4.] Whatever courts might say about the "standard of review" for gun restrictions under the Constitution (strict scrutiny, intermediate scrutiny, lower review under Jacobson v. Massachusetts), "The Court declines to invent a level of scrutiny to circumvent the text in the statute." "Having found that indoor gun ranges are protected by the statute, the Court cannot uphold executive orders that limit or prohibit indoor gun ranges."


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