Federal judge suggests Mass. ban on gun sales may need to be lifted
By:
Kris Olson May 5, 2020
If the tenor of the May 4 hearing before U.S. District Court Judge Douglas P. Woodlock is any indication, Massachusetts residents may soon once again be able to buy guns and ammunition — and perhaps practice with them at a shooting range as well.
For nearly three hours, Woodlock pressed Assistant Attorney General Julia E. Kobick for answers as to why Gov. Charlie Baker excluded sellers of guns and ammunition from the state’s list of essential businesses, at least in the
list’s final form.
Specifically, Woodlock wondered what could explain — aside from perhaps the liquor lobby’s political clout— the decision to keep liquor stores open while shuttering merchants selling products that implicate a constitutional right.
While Kobick offered a number of explanations, she could not provide what Woodlock seemed to be seeking: a formal justification of the infringement on firearms license holders’ Second Amendment rights by Baker or one of his deputies.
By the conclusion of the hearing, Woodlock asked the parties to attempt to craft an order that would allow sales to resume in some form.
He pointed to an
April 10 advisory letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, which seeks to answer “questions from industry members regarding the legality of firearm sales and deliveries exterior to the brick-and-mortar structure at which the firearms business is licensed.”
Among the answers suggested in the letter is that a gun merchant could conduct business “through a drive-up or walk-up window or doorway where the customer is on the licensee’s property on the exterior of the brick-and-mortar structure.”
The letter also speaks favorably about merchants doing business from a temporary table or booth located in a parking lot or other exterior location on the licensee’s property.
Kobick pointed out that such guidance is contrary to Massachusetts state law, G.L.c. 140, §123, which states that the “building in which the [firearms] business may be carried on under [the license] shall be strictly adhered to.”
Nonetheless, Woodlock asked whether the ATF letter might offer some guidance in terms of finding a way to accommodate the “competing concerns” of wanting to keep people safe during a public health emergency and safeguarding Second Amendment rights.
Woodlock said that one of the purposes of the hearing was to try to ensure the factual record was as complete as possible before he attempted to rule on the petitioners’ request for interlocutory relief.
To that end, in addition to inquiring about any declarations Baker may have made to explain the gun-sale ban, Woodlock drilled down on a number of factual matters.
Among these were the degree to which ammunition continues to be sold at Massachusetts Wal-Mart locations and whether private gun sales provide adequate access to firearms so as to minimize the infringement on Second Amendment rights.
A note that Kobick repeatedly tried to strike was that the governor’s orders halting gun sales are “temporary” or “time bound.”
At one point, that prompted Woodlock to quiz her about how many times the governor’s order had already been extended.
“‘Temporary’ and ‘sustained,’ I would say at this stage,” Woodlock said.
While the petitioners, represented at the hearing by New York City attorney David D. Jensen and Leominster attorney Andrew J. Couture, argued that Woodlock should review the governor’s order under a strict scrutiny standard, Kobick said that every other court that had reviewed a challenge of such a temporary measure had applied intermediate scrutiny, pointing to three recent California cases.
As for shooting ranges, the parties noted a dearth of precedent on point, aside from a scathing dissent by Justice Samuel A. Alito Jr. in the recent U.S. Supreme Court case
New York State Rifle & Pistol Association, Inc. v. City of New York.
While the Supreme Court majority quickly dispatched with the case as moot after the city repealed a regulation that had precluded the transport of firearms out of the city, even to gun ranges, Alito disagreed and authored a 31-page dissent.
Among the language quoted in the hearing before Woodlock was a sentence Alito had cited from a 2011 California federal district court decision, , “The core right [to bear arms] wouldn’t mean much without the training and practice that make it effective.”
Kobick suggested that, in the short term, gun owners might be able to practice with their weapons in their backyards while receiving training through online courses.
But Jensen said that many gun owners in Massachusetts live too close to their neighbors to make backyard practice safe or legal, while Woodlock noted the difference between hands-on practice and online instruction.
Woodlock ordered the parties to file the further submissions he had requested, including a proposed form of order, no later than 5 p.m. on May 6.
He scheduled a further hearing in the matter for 10 a.m. the following morning, May 7.