By Brian Dowling

Law360 (May 4, 2020, 7:57 PM EDT ) A Massachusetts federal judge on Monday laid into attorneys for Gov. Charlie Baker for offering "concerted silence" about why the state closed gun stores during the COVID-19 outbreak while allowing liquor stores and other retailers without constitutional underpinnings to remain open.

During a three-hour hearing, U.S. District Judge Douglas P. Woodlock repeatedly pressed government attorneys for the state's rationale and asked them to work with retailers challenging the closures to draft a plan on how the stores could safely reopen in case he decides the Second Amendment demands it.

Defending Baker, Assistant Attorney General Julia Kobick said bold moves were needed to stop the virus in its tracks and save lives, and argued the burden on the Second Amendment is light because citizens can still acquire guns through private sales and buy ammunition at Walmart.

"In times of crisis, the government is entitled to draw lines and is entitled to deference in how it draws lines in determining what is essential for human survival," Kobick said. "I don't know why liquor stores were included, but gun retailers were not."

Judge Woodlock agreed that governments are owed deference "at the macro level" when responding to emergencies, but said they aren't freed from all responsibilities. He mused that the decision may have been related to the state's strong liquor lobby or its political leanings on gun control.

"Now we are dealing with the micro level, and deference doesn't fall like the mists over San Clemente," the judge said. "It requires a sober analysis of the responsibilities of those who sell various kinds of commodities and in the absence of any contemporaneous explanation what it is that could distinguish those two ... the line is drawn to burden constitution rights and not sumptuary rights."

He added: "In the absence of real justification or a real outline of what the distinctions are, it is really difficult to give deference to concerted silence on the part of the administrators who are required to make these decisions."

In two lawsuits joined into the single case before Judge Woodlock, Massachusetts citizens, gun shops and advocacy groups are asking the court to force the state to let the shops resume sales after Baker ordered their closure in early April. Lobbyist groups including the National Rifle Association decried the closures as egregious violations of constitutional rights.

The state has argued that the temporary nature of the ban and the other avenues to buy guns and ammo mean the plaintiffs' constitutional rights aren't heavily burdened. But the citizens and stores have argued that person-to-person private transactions are no replacement for gun stores, which offer the type of advice that's important to first-time buyers as well as warranties for the products.

Kobick repeated throughout the hearing that the closures should be upheld and are narrowly tailored because they are set to end May 18.

Judge Woodlock pushed back on the "temporary" justification, saying it fails to capture the situation where deadlines have already been extended twice.

"'Temporary and sustained' is what I'd say at this stage, and so there's been a good deal of time with no formal justification, and sustained, not only temporary, impingement of Second Amendment rights," the judge said.

The availability of ammunition is a major issue as well, according to Judge Woodlock, who explained, "If you're shooting blanks, you don't have Second Amendment rights."

From the record of briefs and affidavits before him, Judge Woodlock asked the state whether the availability of some handgun ammunition — albeit for smaller calibers not ideal for personal protection — at some Walmarts around the state justify the state's "effective ban" on ammunition sales through the closure of the gun shops.

"We do contend that rights of plaintiffs are fully protected by the availability of ammunition in Walmart," Kobick responded. "Many of the plaintiffs live near state borders. They can always go to dealers in New Hampshire."

The hearing ended with Judge Woodlock asking the parties to draft an order detailing what limitations would be appropriate for firearms retailers if he were to decide they needed to be reopened.

"I want to see if I can resolve the question promptly and if I issue an order, it's one the parties believe is workable if not justifiable," the judge said.

From the outset, Judge Woodlock indicated his analysis would follow steps laid out in a 2018 case in the First Circuit, Gould et al. v. Morgan et al., that adopted a two-part test to determine whether an action runs afoul of the Second Amendment based on how close it comes to the core of the right and then whether it withstands appropriate scrutiny.

The Gould decision held as a core Second Amendment right the ability "of responsible citizens to use arms in defense of hearth and home."

The McCarthy plaintiffs are represented by David D. Jensen of David Jensen & Associates.

The Cedrone LLC plaintiffs are repented by Andrew J. Couture.

Baker and other state officials named in the suit are represented by Julia Kobick of the Massachusetts Office of the Attorney General.

The cases are McCarthy et al. v. Baker et al., case number 1:20-cv-10701, and Cedrone LLC et al. v. Baker et al., case number 1:20-cv-40041, in the U.S. District Court for the District of Massachusetts.

--Editing by Michael Watanabe.

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