COVID-19 Business Closures, Firearms Dealers, and the Second Amendment

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As the United States faces the spread of COVID-19, officials in many jurisdictions have ordered the closure of "non-essential" or "non-life-sustaining" businesses.  These shut-down orders have differed, including in their treatment of gun dealers, with officials in several jurisdictions ordering gun dealers to cease operations.  Do these closures unduly burden the public's ability to acquire firearms for self-defense during an emergency, raising serious questions under the Second Amendment?  What about heightened background-check requirements that operate in tandem with gun store closures as a categorical bar to firearm purchases?  In addition, some officials have made public statements suggesting hostility toward the firearms trade, and some closure orders appear to single out gun-related businesses for disfavored treatment, leaving open, for example, marijuana dispensaries and liquor stores.
 
As jurisdictions continue to respond to the COVID-19 pandemic, many are poised to issue similar business closure orders and will face the decision whether those closures should apply to gun-related businesses.  This teleforum call will address the potential Second Amendment implications of these exercises of emergency executive power.
 
Featuring:
 
Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston
 
Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
 
 
This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome to The Federalist Society's Teleforum conference call. This afternoon will be a discussion on "COVID-19 Business Closures, Firearm Dealers, and the Second Amendment." My name is Nick Marr, and I'm Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion on today's call are those of the experts.

 

We're fortunate to have with us today Professor Josh Blackman, who is Associate Professor of Law at South Texas College of Law Houston, and Deepak Gupta, Founding Principal of Gupta Wessler PLLC.

 

After our speakers give opening remarks, we'll then go to audience questions. Thanks for sharing with us today, Professor. The floor is yours.

 

Prof. Josh Blackman:  Thank you so much. It's a pleasure to be here today with The Federalist Society and also Deepak. I'll be talking about firearm business closures and the Second Amendment. But really, the Second Amendment hasn't played much of a role. With the ongoing corona litigation, the most important legal doctrine is actually mootness. Yes, the policies often change so quick that it becomes impossible to get the resolution on the merits.

 

      Let me use New Jersey as an example because I think it's been the poster child of gun-related Second Amendment litigation. The first element in the story began in the middle of March. This is when the governors issued the stay-at-home orders, and the governors began to distinguish business. Some were deemed essential, like grocery stores, hardware stores, hospitals; other businesses were deemed non-essentials, for example, bars, certain kinds of dine-in restaurants, and gun stores. As a result, for some period in New Jersey, all firearm retailers were shut down. But in New Jersey, marijuana dispensaries were left open and liquor stores were left open. Go figure.

 

      A couple lawsuits were filed in New Jersey to sue, arguing that the shutdown of the firearm dealers was unconstitutional. What's the argument? In New Jersey, the only way to buy a gun is in person. You can't buy it online. You can't get it curbside delivery. You can't get DoorDash or Instacart for a gun. You have to buy it in person. If the retailers are not physically open, it becomes impossible to have a gun.

 

      Now, this isn't a traditional gun ban. No one was confiscating, but it became impossible for people to actually acquire a new gun. At the time, the governor of New Jersey, Murphy, made statements saying, "We're in the middle of an epidemic. We don't need more guns now. This is not what we need." They were sued, and after the lawsuit was filed, the state quickly folded. They decided that firearm retailers were essential businesses and, as a result, gun stores were allowed to open. So that's Phase 1.

 

      Then, we get to the second phase of the litigation. People were allowed to purchase guns, but they weren't allowed to train to use them safely; that is, firing ranges. So another lawsuit was fired to allow people to use outdoor shooting ranges. These are basically parks where people can shoot at targets and become proficient in the weapons and hopefully learn to use them in a safe fashion.

 

      The governor actually allowed golf courses open, and he allowed tennis courts open, but he [did not] allow to have shooting ranges open that were outdoor. Once again, they were sued. And once again, the governor backed down. Before the case could be adjudicated on the merits, he allowed the open-air ranges to open.

 

      We're not done yet. The next round of lawsuits came as New Jersey moved along its phases. New Jersey opened up businesses like tattoo parlors and nail salons and other sorts of barbershops, these sorts of indoor places. But indoor shooting ranges were still closed. For many people in New Jersey, they don't have access to an outdoor shooting range; they only have access to an indoor one inside their towns with reasonable ability to travel to. So once again, Governor Murphy was sued, and once again, he folded. Before the case could be litigated on the merits, he decided to open up indoor shooting ranges.

 

      At this point, you might get frustrated that the exact same thing happens over and over again. And this is not limited to conservative litigation. Civil rights litigation in all quarters often faces this mootness game where you sue the government, they change the policy slightly, and then they settle. And they change it again, and they settle. And they change it again. You never actually get a ruling on the merits. There is a doctrine known as voluntary cessation, which means that maybe a lawsuit is still -- you could still litigate it even after the policy changes. But so far, we have had had no ruling on the merit in New Jersey.

 

      Now, if you've noticed, I have not mentioned the court of appeals. I have not mentioned the Supreme Court. I think New Jersey, probably shrewdly, is trying to keep this case away from the court as much as they can.

 

      I'll give you another anecdote. In March, the governor of Pennsylvania, right across the border, the governor of Pennsylvania ordered a shutdown of all gun stores. An action was brought in state court, and the Pennsylvania Supreme Court narrowly upheld it. The vote was divided, and a couple of the justices on the Pennsylvania Court dissented, saying that this is an unconstitutional shutdown. Before an appeal is filed to the Supreme Court, the New Jersey governor backed down. He did not want to enforce his policy.

 

      I can talk about California. In California, Governor Newsom originally had some orders that shut down gun stores, but then he backtracked and said, "No, no, no. I am not closing the gun stores. It's local municipalities. It's the City of Los Angeles and this city and that city."

 

The only active litigation I'm aware of in the country right now is in California where some of the counties are actually arguing on the motion to dismiss phase. Unfortunately, those cases will probably be mooted out. Why? Because California is under a new lockdown, which results in further orders, which means litigation starts from scratch.

 

The bottom line is we're not able to get a single ruling on the merits. I want to use my remaining few minutes to talk about hypothetical issues. This is not what's actually present because the litigation simply doesn't get to a judgment. For a professor, it's frustrating for me to hear this.

 

But I want to start at a very basic level. What does it mean for business to be essential? What does it mean for business to be essential? Does it mean it has to be absolutely necessary for people to live? No. There are lots of things that were deemed essential that weren't, frankly, that important. Liquor stores. Maybe people need alcohol, maybe they don't. Marijuana dispensaries. Okay, maybe some people need it for medicine, but for most people, it's recreational. Different types of stores. Do you absolutely need every single type of store to live? Probably not.

 

Now, if you see what I'm doing here, I'm actually engaging in a value judgment. I am assessing the wisdom, truly. I'm assessing how essential things are. How important are things? To some people, guns are very important. Self-defense is a right, the court has held, and in the initial weeks after COVID, there were concerns about public safety, and those concerns have not abated in some quarters.

 

In my mind, having a firearm is, very likely, life essential. Others may say, "No, no, no. Guns are dangerous," that actually having a gun can create more harm to others. This is the debate we're actually should be having. It's not whether guns are or are not essential in this arbitrary sense. It's to what extent can the government decide that guns are out?

 

Now, let me take another constitutional right that's actually respected, which is the Free Exercise Clause. A lot of states said that religious practice is very important, and they would create a special exception to the orders for religious practice. In other states, they treated a Catholic Mass the same way they would treat a play of Godspell. These were just people talking about whatever in a room, and it wasn't really that important. If you want a Communion, take it on Zoom.

 

I think these decisions were largely wrong. We had a court of appeals decision from Judge Sutton in the Sixth Circuit, and he argued—I think correctly—that the Free Exercise Clause and also RFRA, to a lesser extent, elevates religious practice above other types of secular worship, and the state can't arbitrarily say it's just not important; it's not essential.

 

Alas, our savior, saint John Roberts, the person who decides everything in the world, said we're wrong; that the states have great latitude to treat religion like other secular activities. Roberts didn't explain why some things which are closer to religion, like a warehouse maybe where people are in close quarters talking to each other, might be different. But the Roberts opinion has largely carried the day.

 

Let's go back to guns now. Let's go back to the Second Amendment. Most judges don't think guns are very important, and I say this as someone who's been involved in Second Amendment litigation for a very long time. The Supreme Court this year denied review in ten cases that would've considered Second Amendment issues. Only Justices Thomas and Kavanaugh would've granted them.

 

In our current legal order, we're not getting any respect for the Second Amendment. I'm not expecting it anytime soon, especially during a pandemic. I think, perhaps, the one saving grace is that the blue states are either afraid of an adverse ruling, or they genuinely recognize their rules are irrational because at every juncture they keep mooting out the cases. So in the grand scheme of things, I guess you could say no harm, no foul. But I do find it frustrating that you have these government actors that constantly change their policies for the sole purpose of alleviating lawsuits at every juncture.

 

I'll stop here. I'll turn the floor over to my friend, Deepak, and I'll be happy to hear your questions later. Thank you so much.

 

Deepak Gupta:  Great. Well, thanks everyone for being here, and thanks, Josh, for those remarks.

 

      I think I have a somewhat different perspective. I'm not as certain as Josh is that officials at the state and local level have a kind of animus, maybe -- I heard you to be suggesting that they're attempting to treat gun rights differently than other rights. I'm not so sure that that's the case, and I think it's an interesting feature both on the left and the right of a lot of the constitutional litigation that has arisen since the pandemic that people see animus towards their preferred rights in actions that I think have often been really applicable and are not targeting specific rights. And that, I think, really is the question with all these cases.

 

You've seen a kind of constitutional law of COVID-19 arise very quickly. I was surprised at the beginning of the pandemic—maybe I shouldn't be because in American life now, every social controversy becomes a constitutional controversy very quickly—but we had litigation arising about abortion, prisoners' rights, religious liberty, the right to travel, and of course, guns.

 

In all of these cases, there were really difficult threshold questions about what kind of analysis applies when you are deciding whether the state can adopt restrictions that seem to burden or restrict civil liberties but are motivated by public health and at least purport to be generally applicable. And that's not question that, at least when I learned constitutional law, I spent a lot of time thinking about.

 

But it turns out that the country has dealt with this before in past pandemics, past diseases, and one touchstone that people started to turn to very quickly was a case called Jacobson from 1905 where the City of Cambridge, Massachusetts, was requiring a vaccination program. I think we've seen different people read different things into this 1905 Supreme Court case, which of course predates so much of our modern constitutional jurisprudence that it's a little bit hard to map it onto it.

 

But Josh mentioned the Chief Justice's decision in this case called South Bay United Pentecostal Church v. Newsom, and I think that's maybe the Supreme Court's latest and best word on how we think about these questions. It's a very short opinion. It doesn't give us a lot of guidance. But, as Josh said, it quotes this Jacobson case that says that state officials get wide latitude.

 

The Chief says that the precise question of when restrictions on activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. "Our Constitution, " he says, quoting Jacobson, "entrusts '[t]he safety and health of the people' to the politically accountable officials of the States to 'guard and protect.'" And when they do that, when they "'undertake to act in these areas fraught with medical and scientific uncertainties,' their latitude," he says, "'must be especially broad.'"

 

That is some hint of a framework, but it's not very well fleshed out. I think maybe Josh and I agree that the relevant inquiry for all of these cases, to some degree, is going to be a comparison between the restrictions that are being imposed that allegedly burden constitutional rights, like restrictions on gun stores, and restrictions on other similar businesses. Because if the state is targeting constitutionally protected activity, that's going to be much less likely to be sustained.

 

In this church case, the Chief pointed out that there were similar or more severe restrictions that applied comparable to secular gatherings, like lectures, concerts, movie showings, spectator sports, and that the order exempted or treated more leniently only dissimilar activities, like grocery stores, banks, laundromats. He didn't find it a very difficult exercise to conclude that this was a generally applicable law. It wasn't targeting or selectively burdening religious exercise.

 

And then, when you throw on top of that this kind of principle that state and local officials get a lot of deference in a pandemic, he didn't think this was a difficult case. I notice it's interesting that the Chief Justice did not cite in his opinion Employment Division v. Smith, which would've been the most natural case to cite for the proposition that, at least when you're dealing with religious liberty, that generally applicable laws are going to be found constitutional.

 

I think one way of looking at the Second Amendment questions that are now being posed in these gun stores cases is does the same framework apply in the Second Amendment context? Is there a principle of general applicability as in Smith? Of course, like with everything else about the Second Amendment, we have very, very little guidance from the Supreme Court because all the Supreme Court has really given us is Heller announcing the right and McDonald incorporating that right and precious little guidance.

 

I do think it's interesting to note that two prominent conservative appellate judges, Judge Bea and Judge Bybee, both on the Ninth Circuit, have actually addressed this question of general applicability and the Second Amendment. In one case called Teixeira v. Alameda, Judge Bea said that a "measure of general application,"—I'm quoting from him—that affects retail stores of any kind, and not just gun stores, would not raise a Second Amendment issue.

 

Judge Bybee similarly, in a case called Pena v. Lindley that I worked on, he wrote that "rules of general applicability don't violate the Second Amendment just because they place conditions on the sales … of handguns used for self-defense. We accept such restrictions on our rights," he said, "—including our fundamental rights to speak, publish, and exercise our religion—because laws of general applicability cover a broad range of activities and, hence, must have broad, popular acceptance and support."

 

Now, notice Judge Bea and Judge Bybee, they're just talking about laws of general applicability in normal times. This is a principle that doesn't even rely on the Jacobson concept that state and local officials get special deference for these kinds of public health policies in a pandemic. And so I think the challengers in these cases face a really difficult hurdle because they first have to, I think, surmount this concept of general applicability, and then, they have to do so given the special deference that I think most courts are going to accord state and local restrictions in a pandemic.

 

Indeed, we've seen that. We saw that in the Fifth Circuit where the court upheld Texas's abortion restrictions. We've seen that in a variety of cases that courts have resorted to both the deference principle that I think is in Jacobson and also this principle of general applicability. The way Jacobson put it is that where a law is "applicable equally to all in like condition," and because "in every well-ordered society charged with the duty of conserving the safety of its members and the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand," which I think is a concept that's very well-tailored to these disputes.

 

Now, I understand Josh's frustration about mootness in these cases. I'm not sure that that's game playing on the part of state and local officials. I think that it's that the pandemic, as Chief Justice Roberts said, is a fast-moving, fact-intensive situation, and so the policies are necessarily going to change.

 

But I do think there is one opinion that very definitely reached the merits and I think is a kind of model opinion for how to treat these cases, and that's the decision of Judge Tigar in the Northern District of California in a challenge to Santa Clara County, California's restrictions. And those were generally applicable restrictions. What Judge Tigar did is basically say, "Look, I'm not quite sure what the applicable framework here is, whether it's the Jacobson framework relying on the Chief Justice's opinion and the Fifth Circuit's decision in the abortion cases and some of these other cases, or it's the intermediate scrutiny approach that the Ninth Circuit has applied in Second Circuit cases, and that courts around the courts, the lower courts at least, have coalesced around."

 

Judge Tigar found that whichever one of those two frameworks you apply, that these restrictions easily pass muster because they are indeed generally applicable. They're grounded in sound public health science and policy, and they're not selectively targeting or burdening Second Amendment rights. If you had a case where a state was really reaching out to selectively target Second Amendment or religious liberty rights or some other constitutional right, I think that would be very different, but I'm just not persuaded that that's what's really happening here.

 

My sense is Chief Justice Roberts has kind of paved the path forward here, and that when these cases reach the merits, they're likely to be decided in the way that Judge Tigar has decided this Santa Clara County case.

 

I'll stop there, and I'm really looking forward to hearing the questions and discussion.

 

Prof. Josh Blackman:  Thanks for that. I think we're largely in agreement. Maybe another way of looking at it is comparing different states. I live in Texas and, no surprise, after the lockdown orders came, the governor very quickly said that gun stores were exempt, but there were restrictions on abortion, which I'm sure you're aware of.

 

The state effectively said that certain PPE, that is protective equipment, was essential and that we couldn't have people using PPE for certain types of abortions. So, unsurprisingly in a conservative state, the regulation sort of stumbled along such that guns were allowed, religion was allowed, but abortion was restricted.

 

In blue states, priorities were different. You heard nothing about restriction on abortion. There were restrictions on both guns and religion. I don't think that this is necessarily nefarious, and I don't mean any sort of malicious malintent. I think it's merely a matter of preferences. Red states prefer guns and religion, and blue states prefer to provide protections for abortion and other types of favored rights. I think those are entirely valid policy disputes. The only question is whether the federal Constitution restricts their ability to choose some over others.

 

But I agree with Deepak. I think even if we get on the merits, the courts will do the sort of intermediary scrutiny two-step and say, "Whatever," and then these rules will be upheld. Maybe some of the lawyers will get fees; maybe not. But I don't think we'll get any sort of lasting Supreme Court precedent on constitutional law in the times of pandemics. I think Roberts was very clear he wasn't game for that, and right now, he's the most important person on the Court.

 

Deepak Gupta:  Yeah. Perhaps I misinterpreted you, Josh. I thought you were suggesting some animus on the part of some of the state or local officials. I think certainly that has been the gravamen of some of these constitutional challenges.

 

I think some of the reproductive rights groups saw in the Texas restriction an attempt to exploit the pandemic to restrict abortion rights, and some religious liberty groups saw in restrictions on church services, or gun rights groups saw in some of these restrictions an attempt to use the pandemic to crack down on people whose rights they don't respect.

 

      And I think that has been either in the background or explicitly in the forefront of a bunch of these challenges. One of the earlier opinions was the opinion by Judge Walker in Kentucky that certainly saw in the local restrictions there on church services some animus against religion that I'm not sure was warranted in those circumstances.

 

      What's beautiful about American constitutional law is that it has to try to develop principles that apply across the board. It has to be law. And so what we're seeing in very, very -- as I said before, I've really been surprised at how quickly we've had this new kind of mode of constitutional analysis. Courts have had to a develop framework for how to deal with this, and it's interesting to me how the courts are coalescing around a framework that is uniform but produces what you might call conservative and liberal results, depending on the nature of the challenge.

 

      What they have in common is that courts are, I think, turning out to be pretty suspicious or skeptical of these claims that public health officials are really exploiting the crisis to curtail constitutional rights as opposed to just trying to do their best to deal with what is really a very difficult and fast-moving situation.

 

      I think in the prison context where I've done some of the work, you already have a framework that's extremely deferential, and so it has been extraordinarily difficult for anyone to win those claims. Those claims have failed, I think, in every circuit, pretty much. They've barely reached the Supreme Court. None of these gun cases has even reached, I think—correct me if I'm wrong—I don't think any of them have even reached the circuit, and part of that has to do with the changing nature of the policies and the ability to moot them.

 

      But it's a little bit surprising to me that they haven't reached the courts of appeals or the Supreme Court on stay motions, which seems to be how a lot of these issues are coming up quickly. That's how the religious liberty case reached the Supreme Court.

 

      I think the question will be -- there may be some state and local officials that overstep, that go too far, and then, I think, will open themselves up to a challenge that might have more viability. But so far, as you say, they've been very careful. And that's consistent with what we saw happen in the Supreme Court this past term in the New York City case where I think it's safe to say that state and local officials did whatever they could to avoid a ruling on the merits by the Supreme Court, and that strategy seems to have been vindicated and vindicated further by the cert denials you mentioned, which suggests that there is not any kind of firm five-justice majority that has an appetite to take these cases up.

 

      There were, I think, ten cert petitions we were opposing. One of them a case from Massachusetts involving public carry, and they really presented the Court with a smorgasbord menu of every possible hot Second Amendment issue that the Court might be interested in, and they were all rejected. I think if you're someone who is in favor of having the Supreme Court take on the Second Amendment and expand Second Amendment protections, that has to be a pretty dispiriting signal.

 

Prof. Josh Blackman:  Yes, yes. Very disturbing. All right. I'll leave it there. And you can open the floor for Q&A. Thanks, Deepak.

 

Nick Marr:  All right. We'll go to audience questions now.

 

Christopher Melling:  Professor Blackman, this is Christopher Melling from BYU Law. I wanted to allow you to engage in a little bit more hypothetical. Let's assume that the defund the police movement really gains momentum and a lot of communities start completely defunding the police, taking them out of the community. Do you think that's going to lead, would lead, to a shift towards more people, including maybe the judges, recognizing that guns and Second Amendment rights are more important? Thank you.

 

Prof. Josh Blackman:  I appreciate the question. One of the arguments raised in the New Jersey litigation was directly related to public safety. You might recall that shortly after the shutdown orders, the governor of New Jersey and others started releasing certain people in prisons to try to prevent outbreaks of corona. The litigants argued that we're basically letting violent people on the street, and at the same time, we are preventing people from acquiring new weapons.

 

      I'll be frank. I don't think judges are tuned into this. They have personal security details. They have lots of protections. The people who think about these things the most are not sitting on the bench. So I'm skeptical that even a rise in crime would affect how people think about the right to bear arms. If anything, they'll say, "Well, if there's more crime, we don't need more guns." So I appreciate the question in the abstract, but I think this is an opinion that's so well-worn.

 

Deepak Gupta:  I tend to agree with Josh. I think that what I've noticed about this issue is that people bring their priors to any new development, and so what some see as a development that requires more guns in the hands of citizens gives other people more alarm about that very thing.

 

      And I also just, I'm not sure I agree with the premise of the question. I don't think there are very many people that are advocating -- when people say, "Defund the police," I don't think people are suggesting that there not be police forces. I think what they're suggesting is that there be a reallocation of budget resources and people rethink what policing is and the relationship between the police and society.

 

      And maybe those who care about Second Amendment rights and who don't think that the state should have a monopoly on violence I think ought to be more sympathetic to that view. I think the idea would be to have less violent interactions with civilians that involve guns and lethal force. I don't think there's much of a groundswell anywhere for getting rid of the police entirely. I don't think that's what "defund" means.

 

Christopher Melling:  Thank you.

 

Nick Marr:  And we'll go to the next question here.

 

David Hubert:  Hello. This is David Hubert from Atlanta. My question is do I understand from this conversation that neither of our speakers believe there's such a thing as inalienable rights? Thank you.

 

Prof. Josh Blackman:  I'll take that one, Deepak. I firmly do think the Second Amendment is called "inalienable," called "preexisting," called "natural." Whatever label you want to use, I think that I'm with that position. I think Justice Scalia more or less reached that position in Heller.

 

      Let me maybe tease this out into more modern-type question. Does the Jacobson framework apply to both enumerated and unenumerated rights in the same fashion? The entire notion of due process, like substantive due process, started going in the early 20th century, late 19th century. And we have the famous case of Lochner, which I won't -- sort of shivers at whether there was some sort of due process interest in a right of contract.

 

      Jacobson was actually a similar case. It's where people have an unenumerated liberty interest in not having a vaccination put in their arm, so to speak. And I think the Jacobson framework works well enough, perhaps, for unenumerated rights. In fact, Roe v. Wade actually cited Jacobson as a grounds for restrictions on abortion.

 

I don't know that enumerated rights are subject to the same sort of ad hoc balancing test. In fact, if you take Carolene Products seriously, which I don't, but if you take it seriously, enumerated rights get even higher scrutiny. But that's backwards under modern doctrine. Guns are given basically, I guess, intermediate scrutiny, barely. And now, under due process jurisprudence, abortion is higher, at least until John Roberts gets another case.

 

So the bottom line is I don't know that the Jacobson test even is relevant for the Second Amendment. I think it's limited to sort of due process challenges, but none of this will matter because the Chief has spoken. He basically applied Jacobson to the First Amendment, the Free Exercise Clause, which is the most enumerated right we have. So I think that, for better or worse, we're stuck here.

 

Deepak Gupta:  Yeah. It's interesting how much we're agreeing. I think the courts have shown that they're invoking Jacobson in cases involving both enumerated and unenumerated rights. It's a little bit less clear to me how much work it's doing in the analysis, and whether -- I don't think many of these courts are suggesting that it actually provides a kind of different mode of analysis. It's more like a thumb on the scale in the favor of public health authorities.

 

      I think what's really doing the work in most of these cases is the concept of general applicability, which is to say that if the states are, in what the court considers good faith, adopting a measure that applies across the board, the courts are pretty unlikely to find that there's a constitutional violation simply because it incidentally burdens a constitutional right.

 

      If you have a store closure order and it applies to bookstores and gun stores, the court isn't going to find that the bookstore closure policy violates the First Amendment, and it's not going to find that about gun stores either.

 

Nick Marr:  Caller with the area code 479, you have the floor.

 

Caller 3:  Hello, and thank you for doing this today. We certainly appreciate it. I wondered if you could comment on the possibility of a national reciprocity between the states for concealed carry or on the concept of constitutional carry, permitless carry, if you will.

 

Prof. Josh Blackman:  Deepak, I can do this one or you can. It’s your call.

 

Deepak Gupta:  Sure, yeah. Go ahead. Yeah.

 

Prof. Josh Blackman:  Okay. Let me do the second one: constitutional carry. The Supreme Court has refused steadfastly, adamantly, to take any case that might actually generate a right to carry. Last term, they had a case from New York, which was a fairly strange law. New York restricted whether you can keep a locked gun in your car trunk to go to different types of shooting ranges. Even if the plaintiffs prevailed, I don't know that it would've actually established a right to carry a gun in a holster on your side.

 

      Of course, once again, mootness. In this case, the New York governor took very deliberate steps to moot the case. It was blatant. I mean, it was strategic, surgical, brilliant. They did it. They killed the case, and the court dismissed it. There were a couple dissents saying the case wasn't moot, but that case fell off the docket.

 

      So we don't actually have a Supreme Court case about the federal Constitution. Many state constitutions do have rights to carry under state law, and in some states, you don't even need a permit to carry and things are just fine.

 

      Now, you're asking about a national reciprocity bill. This is a complicated piece of legislation which has been floating around for years and years and years. I don't think it will be passed, but it turns on Congress's what are called Section 5 powers, and it turns on Congress's Commerce Clause powers. That is, can Congress require states to recognized out-of-state handgun licenses?

 

      Now, I am pretty skeptical of the Commerce Clause argument for reasons people on this call are familiar with. The Section 5 argument, I think, is a little bit more complicated. The Supreme Court has not yet held that it is a right to carry. I'm skeptical that if Congress were to enact this law, there would be problems because the Supreme Court will say that Congress can't rely on a reading of the Fourteenth Amendment that the Court has not yet reached. In other words, until the Supreme Court says there's a right to carry, Congress can't make one up. Now, I think that's wrong for a lot of reasons, but Boerne v. Flores is the precedent. So I'm skeptical.

 

      Now, there's also a right of travel, which is sort of this nebulous element of Article IV of the Constitution that you have the right to travel from one state to another armed. I'm also skeptical. I think the elephant in the room is the Court refuses to take a carry case. Until they take a carry case, I think the status quo will remain the same.

 

Nick Marr:  All right. Let's go to our next question now.

 

Caller 4:  Hi. Thank you, gentlemen, for a very interesting discussion. I'm calling from Virginia, and I have a comment, and I promise I think there's a question in it.

 

I'm concerned that, as lawyers, it's one thing to sit around and talk about these cases, and it sort of takes on an academic environment to it. When our Constitution was written, the founders and framers understood there are real political actors who do real political evil. And I sometimes wonder in pushing these things through the Court, and the fact that we pretty much had a very peaceful nationhood, do we forget that there are actors who do know what they're doing, everything is political for what they want to do, and how do we balance the fact that the constitutional cases take so long? And before you know it, you actually could have other people's history happening here in the United States?

 

I am concerned, so I would just like any comments because "defund police" might mean something to your average Main Street American, but it means something entirely different to those who are willing to push the agenda. Thank you so much.

 

Prof. Josh Blackman:  Deepak, you want this one?

 

Deepak Gupta:  I'm not quite sure what to say. I think this is a very fraught and difficult moment in American history. I think it is a moment where political divisions are very sharply felt. We're in the midst of a pandemic, and even before that, the discourse was very sharp and partisan. I don't know what is going to emerge from all this, but it's a dark moment in American history to be sure.

 

I think one of the values of the legal system and the rule of law and constitutional law in the courts is that no matter how bitter and divided the politics are, that the legal system and the courts try to rise above that. That can be very difficult to do. I think one of the reasons I value these kinds of discussions that The Federalist Society puts on is that we can discuss these very sometimes hotly contested issues, but it's through the lens of the law and the Constitution.

 

To the extent that the process is a little deliberative and can feel like it takes things that are very hotly contested and recasts them in the light of principles that people are trying to get right across cases and trying to be neutral about, I think that's a good thing. I think we should celebrate that. I think that's one of the values of the rule of law, and it prevents us from battling everything out in the streets.

 

Prof. Josh Blackman:  Yeah. I'll just add de Tocqueville wrote that "in America, all controversies go to courts." And I think that's probably a mistake. I think political process works. Again, in conservative states, the gun laws are fine; and in liberal states, the gun law are not fine. And I don't think that's malicious. I think that's simply a reflection of how different governments approach different laws.

 

      I would prefer fewer disputes in the courts, not more. I don't want John Roberts deciding every single aspect of our polity. I don't want Anthony Kennedy deciding all aspects of polity. I don't think anyone would actually prefer that option.

 

Deepak Gupta:  I don't disagree with you, actually. I agree, and I think what I'd like to see is that the courts provide some stability by often just deferring to what the political branches are doing but doing it in a way that the courts don't become commandeered by the raw partisan politics of the moment. And I think that in a moment like this, there's a risk of that, and it's important that that not happen.

 

Nick Marr:  Caller with the area code 620, you have the floor.

 

Caller 5:  I think both speakers have already touched on this, but as a practical matter going forward, what lessons do either or both of them take from litigation that's occurred in a very unusual time of a pandemic? Are there lessons to be learned that will still be relevant three or four years from now regarding how these cases have been litigated?

 

Deepak Gupta:  It's a great question, and I think it's very hard to know, in part because we don't know how much this moment that we're in is temporary and how much of it is a kind of new normal. I think when the pandemic started, a lot of us—and I include myself in this—had a tendency to think, "Okay, well, this is a few months. It's bad. It's going to be inconvenient, but then we'll be out of it." And that's clearly not the case. There isn't any end in sight and, in fact, it's rapidly increasing.

 

One lesson is just I think it may cause everyone to rethink American exceptionalism because we have seen that there is American exceptionalism, and it's not working very well for us. Unless and until there's some vaccine, which there's absolutely no guarantee of, this could be something that goes on for a while.

 

And there's some evidence that climate change causes these migrations of these kinds of viruses from certain animals to humans, and that's why they've been increasing in recent years. This isn't the first SARS coronavirus; it's just the first one that's become a truly global pandemic as opposed to a regionalized pandemic. I just don't know.

 

I think it could be that the Supreme Court will actually need to weigh in more robustly than it has in that one church case in order to develop a legal framework that applies for how you balance public health and civil liberties. And I don't mean balance in the sense that it necessarily is a balancing test, but that there has to be some legal framework.

 

And I think one lesson that we've learned is that that's going to have to apply trans-substantively. It's probably not going to be something where it only affects one doctrinal area. It may be that we're really rethinking constitutional law across a range of areas if this is the new normal for a while.

 

      Another lesson is just that people are going to approach all of this with their priors. There are favored rights among some folks, and there are disfavored rights among some folks, and that's going to affect the outcomes. There's no question that that's been the pattern as well. I don’t know. Those are just some thoughts. I have a lot of uncertainty. I think this is a tremendously uncertain moment in American history.

 

      I also think that what we've seen is that the Court recognizes that it's at a precarious point in its history, and the Chief Justice in particular is sort of behaving maybe like the last Justice Roberts, who maybe was perceived as switching his votes in order to save the institutional perception of the Court.

 

Prof. Josh Blackman:  Thanks for that, Deepak. I'm not quite so pessimistic, but I think I do have a caution for drawing any broad conclusions. I'll just give you an anecdote. We're now in the year 2020, and the Roberts Court is about 15 years old. When the Rehnquist Court was 15 years old, we were just around 9/11, just to give you the stretch of how much time that was and how much time has elapsed.

 

We don't know what the Court looks like. We could have an election in a few months that goes one way the other, and justices who are older in age may not be in the Court much longer. Every new justice brings a very different Court, and the dynamics are always sort of unpredictable. So I make no predictions whatsoever about anything, and I think it's foolish to do so. All we can do is sort of reflect on what just happened.

 

Nick Marr:  Let's take our next question now.

 

Caller 6:  So I've got a two-part question for you that goes along the axes of both theory and practice. So you've been talking about how FedSoc and Courts should be kind of seeking to rise above things, and I'm wondering if perhaps a better principle for us might be to assume the best of our opponents until proven otherwise.

 

And that along that same lines, in our court cases that you've been talking about in terms of these principles of general applicability applied to these various businesses, how much particular incidents would be useful in laying out in these court systems. For example, de Blasio famously seeking to shut down Orthodox Jewish schools while attending and promoting BLM protests.

 

Deepak Gupta:  Those are good questions. I do think that, in general, and particularly when it's government policies that are being challenged, there's some kind of presumption of regularity that courts will generally apply. Now, we've seen in some cases, like the census case and the DACA case recently, there can be bad-faith government policymaking where the stated reasons are not the real reasons, and the courts should look behind that. But for the most part, we're going to assume, courts are going to assume, that unless there's really strong evidence otherwise, that officials are doing their best and are doing what they're saying they're doing.

 

      In terms of the practical question, yeah, I think -- I don't know enough about that particular situation, but I do think the devil will often be in the details in these kinds of cases. This is what lawyers do. Lawyers make comparisons. They love analogical reasoning, and so do the courts, and so I think the questions are going to come down to are you really treating like things differently with this policy? If you're saying that you can't have religious services, but you can have concerts and all sorts of other mass gatherings, that's not going to be a policy that's going to be sustained. I think that would be pretty obviously unconstitutional if you were targeting a particular constitutionally protected activity. And the same thing would apply to gun stores.

 

      But it's just my sense that that's not really what's been happening. The reason that the challenges have not been succeeding is because there isn't evidence of that kind of targeting, at least that we've seen so far in the cases that have been litigated. I don't know, Josh, if you have a different view of that, but that's my sense, at least.

 

Prof. Josh Blackman:  Again, I don't think Mayor de Blasio has animus towards religious people. I think that would be the wrong frame. I think he simply thinks worship is not as important. I think he thinks you can do worship in Zoom, but you can't have a mass protest on Zoom. And I think that's the judgement call that's reflected. He says, "If you want to go pray, you can have a prayer on YouTube. You don't need to actually be in person. But the only way to protest whatever cause you want to protest is having thousands of people on the streets."

 

In my hometown of Houston, we had a memorial service with tens of thousands of people packed shoulder to shoulder in early June. That would've been unthinkable a week earlier that that could even happen, and the authorities were not only authorizing it, they were participating in it. I don't know, could that be a possible cause of what's going on in my city? I have no idea. This is almost a verboten topic. Mayor de Blasio instructed contact tracers not to ask whether people attended protests.

 

Look, I don't think there's any sort of animus or maliciousness. I think it's people have different priorities in government, and perhaps that's a license you have when you have elected officials that can choose one thing over another. And I don't expect the courts to probe further than that.

 

Nick Marr:  We'll take another question now.

 

Caller 7:  Yes, hello. I'm just curious about what potential effects the pandemic may have on individual access to the courts. I'm in New York, and for a variety of legal matters, such as parking tickets and the like, but even higher level matters like murder trials and preliminary hearings for indictments, those were canceled as a result of the pandemic. And so, although, obviously, we've seen litigation on pandemic-related issues, I'm just curious whether or not just the practicalities of having to reduce the capacity of courts to hear cases will have any kind of an appreciable impact on the litigation on any of the pandemic-related issues that you have discussed.

 

      I just want to quickly note to you, Mr. Gupta, that I am a very big admirer of your work, and I've especially followed your work on the PACER class action lawsuit, which I am a member of the class there. So I just want to thank you for your work on that case. Thank you.

 

Deepak Gupta:  Well, thank you. That's really nice for you to say. For those who don't know what case he's referring to, that's a case that is about access to courts, access to court information, and trying to prevent the federal government from using court records as a profit center at the expense of people who are trying to find out information about what the courts are up to.

 

      It's a good question, and I don't think we really fully know the cost to access to justice that the pandemic has caused. As with so many things in the pandemic, it's very regionalized. There isn't a coordinated national approach for the most part, so different courts are doing things very differently. To some extent, I think that makes sense because the level of coronavirus spread and risk is different in different parts of the country and at different times.

 

      I've been impressed by the degree to which a lot of the courts have been adapting their processes. I do mostly appellate litigation, and so I think in some ways that's easier for courts to adapt to. The Supreme Court has done oral arguments by telephone, and a lot of courts around the country have done arguments by Zoom.

 

I think it's harder when you have cases where -- and there's a constitutional guarantee of confrontation, and it's really hard to think about what you'd do about something like a jury trial in the midst of a pandemic. I'm not sure that anyone has really figured out how that is supposed to work. I know a lot of people are thinking about it.

 

      And then just at the very bottom of the justice system, like the small claims courts and cases that deal with debt collection and all sorts of ordinary functions, those things have also slowed or ground to a halt in many places, and that's going to have a real effect on people. There are increased levels of domestic violence because people aren't able to get into courts and get restraining orders. So there's all sorts of consequences of the pandemic I'm not sure we've fully reckoned with.

 

Caller 7:  Do you think we might get a ruling from the D.C. Circuit soon on the PACER case quickly, if I may ask?

 

Deepak Gupta:  I think so, yeah. I argued that case in the federal circuit, and I think we'll get a ruling pretty soon, I hope.

 

Caller 7:  Thank you very much.

 

Nick Marr:  I'll allow for our speakers a chance for any closing remarks you might have. We don't have any questions remaining, and we're almost up on the hour.

 

Prof. Josh Blackman:  No, I have nothing more to say. Thank you to Deepak, and thank you to The Federalist Society. I think this was a good discussion, and I'm sure we'll be back here in a few months talking about whatever next round of insanity the courts give us.

 

Deepak Gupta:  No, I would just say thanks to Joshua for doing this, and thanks to The Federalist Society for organizing it. It's always a good conversation, and I appreciate being here.

 

Nick Marr:  All right. On behalf of The Federalist Society, I want to thank you both for the benefit of your valuable time and expertise today. A note to the audience: we welcome listener feedback by email at info@fedsoc.org. And keep an eye on your emails and the FedSoc website for upcoming teleforum events.

 

      Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.