The Latest Victim of COVID-19 Is the Second Amendment

by lgadmin

by Bob Barr

The latest victim of the COVID-19 pandemic is not a health care worker, a first responder, or a cruise line traveler.  The purveyor is not an invisible microbe.  The perpetrators of the latest assault on men and women in cities and states across the country, are left-wing governors and mayors who have decided the pandemic provides a convenient excuse to deny law abiding citizens the freedom to exercise their Second Amendment rights.

As I wrote last week, we already have seen examples of the COVID-19 pandemic being used as an excuse to do just this; and the trend is accelerating.

Just last weekend, for example, the New Jersey State Police sent a message to all of the state’s Federal Firearms Licensees (FFL), telling them that Democrat Gov. Phil Murphy had decided to deactivate the Commonwealth’s ability to access the National Instant Criminal Background Check System that is required to be used during the purchases of all firearms in business transactions. According to Murphy, firearm purchases are not “essential” during the COVID-19 outbreak, and thus are within his “emergency” jurisdiction to slow the spread of the viral disease. The Bill of Rights be damned.

Second Amendment advocates have long pointed to the background check system as a potential chokepoint in the gun purchase process; exploitable by anti-gun officials to cripple the Second Amendment without the need for congressional or even state legislative action. As a National Rifle Association alert points out, while a majority of states use the FBI directly to run NICS searches, New Jersey is one of twelve “full point of contact” (POC) states (a group that includes California and Virginia) in which background checks are the responsibility of the state police; a most convenient mechanism for anti-gun governors like Murphy.

The difference is extremely important for the effective protection of Second Amendment rights. While federal interference in the FBI’s execution of background checks is possible, thanks to limitations placed in the statute when passed by Congress in 1993 this is far less likely to occur than a governor suspending the required background checks by executive order, or a general assembly refusing to fund the procedures. Given the continued spread of COVID-19, it is not a matter of if, but when further such restrictive measures are mandated.

This is precisely the danger inherent in broad “emergency powers” that go beyond resource management or financial relief; and which have no direct or even indirect relationship to the problem on which the “emergency” declaration is based. For example, the Mayor of New Orleans, a city infamous for confiscating firearms in the aftermath of Hurricane Katrina 15 years ago, issued a COVID-19 emergency order last week allowing her to suspend the sale of firearms.  That order is similar to ones issued this month by mayors in Champaign, IL, Fresno, CA, New York City, and elsewhere. Even without specific emergency powers, some local governments, such as the city of San Jose in California, are declaring gun stores “non-essential” and therefore subject to summary closure as a way to prevent citizens from acquiring firearms.

There is already a much needed, and legitimate debate about whether governors and local government officials may constitutionally issue blanket orders to close private businesses that summarily put tens of thousands of people out of work. However, there can be no legitimate argument that there exists a local “emergency” exception that allows officials to prohibit individuals from exercising rights expressly protected by the Bill of Rights. Indeed, it is precisely in times of emergency, when the risk of looting and other criminal behavior increases, that the rights guaranteed by the Second Amendment become most important.

Americans who think our judicial system will step in and stop such unwarranted and unconstitutional edicts as we now are seeing, are sadly mistaken.  Just this week the Pennsylvania Supreme Court let stand an order by that state’s Democrat Governor Tom Wolf that forced the closure of all gun stores.  And, as Supreme Court Justice Clarence Thomas lamented in 2017, the nation’s High Court has been distressingly averse to even taking under review cases that would protect this fundamental right from actions such as those we are witnessing in this most recent “emergency.”

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