Thursday, May 14, 2020

Second Amendment Challenge to N.J. Gun Range Closure

By Eugene Volokh - May 14, 2020 at 08:02AM

From the motion for a preliminary injunction in Ricci v. Murphy (D.N.J.) (filed yesterday by Dan Schmutter of Hartman & Winnicki and David H. Thompson, Peter A. Patterson, and Steven J. Lindsay of Cooper & Kirk), which challenges the inclusion of gun ranges in the New Jersey Governor's business closure order:

The right to self-defense is "the central component of the [Second Amendment] right," Heller, 554 U.S. at 599 (emphasis added), and it is "a basic right, recognized by many legal systems from ancient times to the present day," McDonald, 561 U.S. at 767. Indeed, the right to self-protection and self-preservation was viewed at the Founding as a natural right that predates government and is necessarily reserved to the people when government is established. See Heller, 554 U.S. at 593–94 (citing, e.g., 1 William Blackstone, Commentaries 136, 139–40 (1765)). The importance of the right to self-defense is shown in sharp relief in times of national emergency, such as the present pandemic, when ordinary social routines, practices, and safeguards begin to break down.

The COVID-19 outbreak, and our society's response, have upended social life as we know it, calling into question basic governmental functions and protections that are ordinarily taken for granted. Across the country, for example, police departments have been forced to "make[] major operational changes in preparation for the continued spread of coronavirus, as they face potential strains in resources and staffing without precedent in modern American history." Alexander Mallin & Luke Barr, Police Implement Sweeping Policy Changes To Prepare for Coronavirus Spread, ABC News (Mar. 18, 2020), https://abcn.ws/3bl7sij (attached to Schmutter Decl. as Exhibit 14).

Those measures include reducing police response to certain types of crimes and announcements that certain criminal laws will simply not be enforced at the present time. Id. Hundreds of police officers in New Jersey have already been infected by COVID-19, and thousands more have been forced to quarantine. See Alex Napoliello, 645 N.J. Cops Have Tested Positive for Coronavirus, Another 2,300 in Self-Isolation, N.J.com (Apr. 13, 2020), https://bit.ly/2ziCgT8 (attached to Schmutter Decl. as Exhibit 15). Indeed, many States—including New Jersey, as well as California, New York, Ohio, and Texas—have taken the extraordinary and unprecedented step of releasing thousands of inmates into the public, due to the coronavirus outbreak. Lucas Manfredi, Jails Release Thousands of Inmates To Curb Coronavirus Spread, Fox Business (Mar. 22, 2020), https://fxn.ws/2UtPRxG (attached to Schmutter Decl. as Exhibit 16); Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. Times (Mar. 23, 2020), https://nyti.ms/3akEZJd (attached to Schmutter Decl. as Exhibit 17).

The importance of safeguarding "the natural right of resistance and self-preservation," Heller, 554 U.S. at 594, has never been higher than during this extraordinary moment of social upheaval and unprecedented strain on government resources. Hundreds of thousands of Americans across the Nation have come to the same conclusion: "Gun sales are surging in many U.S. states, especially in those hit hardest by the coronavirus—California, New York and Washington," Kurtis Lee & Anita Chabria, As the Coronavirus Pandemic Grows, Gun Sales Are Surging in Many States, L.A. Times (Mar. 16, 2020), https://lat.ms/39kNVNt (attached to Schmutter Decl. as Exhibit 18), with dealers reporting "an unusually high proportion of sales … to first-time gun buyers," Richard A. Oppel, Jr., For Some Buyers With Virus Fears, the Priority Isn't Toilet Paper. It's Guns., N.Y. Times (Mar. 16, 2020), https://nyti.ms/39gfRCc (attached to Schmutter Decl. as Exhibit 19)….

And indeed, these are exactly the circumstances that confront Plaintiff Ricci, who acquired her handgun only in March 2020, shortly after COVID-19 began its spread across the United States. Ricci Decl. ¶ 7. She has no prior experience with firearms of any kind but believes that the current emergency necessitates that she keep a handgun in her home for self-defense. Id. ¶¶ 6, 10. But merely possessing a handgun in the home is not the same as actually being able to use it with any level of effectiveness.

As Americans across the country are demonstrating, the basic, fundamental right of armed self-defense has never been more important than it is today. And as many Americans—including Plaintiff Ricci—are purchasing firearms for the first time in their adult lives, the need for firearm training has perhaps never been more acute. EO 107's mandated closure of all shooting ranges in the State thus unquestionably burdens conduct protected by the Second Amendment….

There's a lot more argument in the brief, of course; you can read it here.


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