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Federal judge issues order allowing Mass. gun shops to reopen

The federal courthouse in Boston.
The federal courthouse in Boston.Stephan Savoia/Associated Press

A federal judge on Thursday ordered that gun shops across Massachusetts can reopen this weekend, ruling that Governor Charlie Baker’s decision to shutter them along with thousands of other “nonessential” businesses infringed on people’s Second Amendment rights.

The decision from US District Judge Douglas P. Woodlock marked a rare rebuke of Baker and the broad emergency powers he’s wielded to fight the COVID-19 pandemic, during which he’s also shut down school buildings and required millions of people to wear face coverings if they can’t distance themselves from others.

But Woodlock said Baker’s inclusion of firearm retailers among those businesses ordered to close — and his lack of a public explanation for why — created an “improper burden.”

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“There’s no justification here,” Woodlock said during a two-hour virtual hearing, arguing he doesn’t see a fit “between the goals of the emergency declared by the Commonwealth and the burdening of the constitutional rights of the defendants in this narrow area.”

“I have enough information to say, in this very small corner of this emergency, we don’t surrender our constitutional rights,” the judge said. “These plaintiffs . . . have constitutional rights that deserve respect and vindication. And it becomes necessary for a court to do that.”

The decision marked a victory for a coalition of gun shops, advocacy groups, and would-be gun owners who sued Baker last month in a bid to allow shops to reopen.

The order takes effect at noon on Saturday, according to court filings. As part of the preliminary injunction, Woodlock ordered that shops operate by appointment only, be limited to four appointments per hour, and can stay open between 9 a.m. and 9 p.m.

They also must practice “proper social distancing and public health and safety measures,” including keeping customers at least 6 feet apart both inside and outside the stores.

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The plaintiffs, which included gun shops and groups such as Commonwealth Second Amendment and the Second Amendment Foundation, had argued that Baker stepped on prospective owners’ constitutional rights through his order, which amounted “to a ban on obtaining modern arms for personal defense."

The Republican governor had since extended his order closing businesses to May 18, though this week he relaxed the rules for retailers to help restart online orders and, on Thursday, allowed golf courses to reopen with restrictions.

Woodlock said Thursday he agreed the order affecting firearm retailers marked a “burdening of Second Amendment rights,” and faulted Baker for providing little public explanation of why he continued to bar gun shops from the list of essential businesses.

Baker’s office had temporarily included firearm retailers among those that could open when he revised his order in late March, but reversed course within hours, reportedly at the urging of House Speaker Robert A. DeLeo.

“When we’re dealing with constitutional rights, some degree of clarity that tells us that it’s necessary is perhaps a foundational requirement,” Woodlock said.

Asked about Woodlock’s decision at a State House news conference Thursday, Baker said he had yet to see it and would need to discuss it with Attorney General Maura Healey, whose office is representing him and other state officials.

“We will certainly comply with any kind of judicial ruling on anything, including that,” Baker said. A spokesman for his office later said state officials were still reviewing the decision.

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Julia E. Kobick, an assistant attorney general representing the administration, emphasized Thursday that Baker’s order shuttering gun stores was temporary, and that amid a deadly pandemic that’s so far killed more than 4,500 Massachusetts residents and infected nearly 74,000 statewide, deference to the governor’s authority “is even more warranted.”

“No one wants to close down the gun business or the Massachusetts economy” longer than is necessary, Kobick told Woodlock. “We are the third-worst-hit state in the country. It’s understandable that the governors and public health officials would have taken more restrictive actions . . . than in other states.”

State officials also argued that Baker’s order didn’t completely close the market for firearms. They said the state tracked at least 2,179 private sales of weapons between licensed individuals during the month of April.

They also tracked at least 985 registrations of firearms in the same time frame, which could include purchases of guns from out of state or recently built firearms.

But Woodlock dismissed the argument that those and other examples amounted to “reasonable alternatives."

“There may be, in the background, a distaste or a lack of enthusiasm for the firearms industry in Massachusetts among political leaders. They’re entitled to their views as well. They just can’t transgress constitutional rights,” Woodlock said, saying he’s seen “a lack of enthusiasm to address this issue” from state officials.

“This is a small corner of a large issue that the governor is grappling with, and undoubtedly has not been the focus of his attention,” Woodlock later added. But when “individuals who have rights under the constitution find those rights burdened and without explanation . . . they end up in court.”

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Massachusetts has some of the most stringent gun-control laws in the country. It is one of three so-called “license to own” states, where a person must have a valid license to legally posses a gun, and any first-time license applicants must first take a safety course. Local police chiefs also serve as the licensing authority, giving them wide discretion over who can legally own a gun.

Less than 17 percent of Massachusetts residents who responded to a March Suffolk University/Boston Globe poll said they owned a gun.

But of those who don’t, about 1 in 7 said they now wished they did, underscoring the anxiety of some who say they have tried to buy a gun for the first time amid the pandemic.

That included Bill Biewenga and Laurie Warner, Wellfleet residents who were plaintiffs to the lawsuit and had contacted a Hyannis gun shop last month about buying a Mossberg 590M 12-gauge shotgun and ammunition, only to be told they couldn’t.

“It’s a welcome step in the right direction,” Biewenga said Thursday of Woodlock’s ruling. “It is, after all, the Constitution. I also do understand these are extreme times and we all want to be careful not to infect others or get infected ourselves.”

He said he intends to reach out to the gun shop on Saturday and put an order in. “There are probably a lot of other people who’ll want to do it as well,” he said.

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A Middleborough gun shop that flouted state and local orders to close had become a conservative symbol of resistance to Baker’s directive last month. But there wasn’t any overriding indication that huge swaths of gun shops were defying state rules ahead of Thursday’s court ruling.

“The government was never able to explain, despite numerous requests by the court, why firearms dealers were being treated differently, and in some cases more harshly, than other retailers, namely liquor stores," said Jason Guida, an attorney for the plaintiffs.

“There’s no constitutional right to buy beer and wine," he said. “And they couldn’t explain why the decision was made. That’s really what drove the [judge’s] decision.”


Matt Stout can be reached at matt.stout@globe.com. Follow him on Twitter @mattpstout.