A divided Pennsylvania Supreme Court dismissed a group of gun rights advocates’ legal challenge to Gov. Tom Wolf’s statewide order closing all non-"life-sustaining” businesses, clearing the way for enforcement of the mandate to begin.
In an order issued late Sunday, the justices denied a petition brought by a Bucks County gun buyer and a Lancaster County gun store owner, who argued that the coronavirus clampdown violated their Second Amendment right to bear arms.
The appellate court offered no explanation for its decision in a two-page order. Three of its justices dissented, saying they were “troubled by the uncertainty” set off by Wolf’s decision to close nearly all businesses in the state aside from exceptions including health-care facilities, grocery stores, pharmacies, and restaurant takeout and delivery services.
Justice David N. Wecht described the legal limbo in which gun store owners find themselves. Unlike most other businesses, they can’t simply move their operations online, given the strict regulatory measures in place around firearms sales, Wecht wrote in a dissent joined by Justices Christine Donohue and Kevin M. Dougherty.
In Pennsylvania, licensed firearms dealers must perform background checks, and state law requires that they conduct their business only on licensed premises or at lawfully sanctioned gun shows.
“Quite simply, if firearm dealers are not able to conduct any business in person at their licensed premises, then no transfers of firearms can be completed,” Wecht wrote. “This amounts to an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this commonwealth — a result in clear tension with the Second Amendment to the U.S. Constitution [and] the Pennsylvania Constitution.”
Wecht urged the governor to modify his order to allow gun store operators to continue in some form. But instead of a general waiver that would designate gun shops an “essential” or “life-sustaining" business, the dissenting justices suggested that some accommodation be made for gun stores similar to those implemented for restaurants.
For gun stores, the justices suggested, in-person business could be limited to only the portion of the sale that must be conducted face-to-face and on a licensed property.
Wecht, a Democrat elected to the court as part of the 2016 vote that tipped its balance, self-quarantined last week after one of his children tested positive for the coronavirus, court administrators said.
Joshua Prince, the Berks County attorney representing the plaintiffs, called the decision a “major blow” to the constitutional rights of Pennsylvanians. He noted, however, that since the court denied the case a hearing instead of ruling on the legal arguments, anyone cited for violating the order would still be able to challenge its constitutionality in court.
“I am truly sorry to all Pennsylvanians that our Supreme Court has chosen to sit idly by, while the governor through executive fiat eviscerates our constitutional rights,” Prince said in a statement.
Also on Sunday, Philadelphia sought permission to join the case, saying it supported Wolf’s decision as Pennsylvania’s most populous county and the hardest hit by the coronavirus’ spread.
Though Wolf’s order has been in effect since Thursday, enforcement by the Pennsylvania State Police, the Liquor Control Board, and the Departments of Health and Agriculture was delayed until Monday morning to give businesses time to prepare and the administration the opportunity to review thousands of waiver requests from companies and industry representatives around the state.
Businesses and some Republican state lawmakers have criticized the order as overly broad. While the governor’s office granted several exception waivers over the weekend, Wolf, a Democrat, has defended the measure as a necessity as Pennsylvania’s level of coronavirus infections continues to rise exponentially.