by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
Gov. Roy Coopers’ March 27 Executive Order, set to take effect on March 30, created some policy ambiguity regarding gun and ammunition retailers. It is a statewide “stay-at-home” order with broad exceptions for workers at a range of delineated and nondelineated “essential” businesses and services.
It was ambiguous in two ways. First, while it expressly avoided listing guns and ammunition retail businesses as essential, not even in its section on additional essential retail businesses (Section 2.C.30, which included book stores, liquor stores, etc.), the governor’s “Frequently Asked Questions” about it states the following:
Are gun stores allowed to operate?
Gun stores implementing social distancing requirements for employees and customers as defined in the order may remain open.
That was based on the exemption provided in this section (2.C.1), and as you can see, it is open-ended and not at all specific to guns stores:
Businesses that meet Social Distancing Requirements. Businesses, not-for-profit organizations, or educational institutions that conduct operations while maintaining Social Distancing Requirements:
a. Between and among its employees, and
b. Between its employees and customers except at the point of sale or purchase.
This section strikes me as Mary Poppins–like — a spoonful of loophole to help the statism go down. The exception was for “______ implementing social distancing requirements,” not for gun stores, which the governor’s order did not deem essential. The FAQ makes the same distinction for golf courses.
Obviously, if the governor intended to exempt gun stores as essential, he would have done so explicitly.
The second way it’s ambiguous is that the order stipulates that if a county’s emergency ordinance is stricter in any respect, that stricter side takes precedence. (As stated in the FAQ: “To the extent that a local order contains more restrictive requirements, the more restrictive local Order must be followed.”) So if a county such as Wake ignores constitutional signs to the contrary and chooses not to consider guns and ammunition retailers as essential, they would be shut down.
Fortunately, all this ambiguity and rigmarole are now moot.
On March 28, Pres. Donald Trump’s Department of Homeland Security issued an update to its Cybersecurity and Infrastructure Security Agency (CISA) guidance. As reported by The Washington Times, this update was made necessary because “state and local authorities cited the lack of clear DHS guidelines as one reason they were moving to shut down the purchase and, in some cases, manufacturing of firearms.”
The updated CISA guidance added the following, under its section of the critical infrastructure of “Law enforcement, public safety, and other first responders”:
Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges.
Now there’s no question. Cooper’s EO Section 2.C.2 exempts as “essential”:
Businesses in CISA identified sectors. Businesses, not-for-profit organizations or educational institutions operating in the federal critical infrastructure sectors as outlined in https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19 or any subsequent guidance issued by the U.S. Department of Homeland Security that amends or replaces said guidance.
Wake County’s ordinance also defers to DHS’s CISA guidance.