By Brian Dowling

Law360 (May 7, 2020, 12:57 PM EDT ) A Massachusetts federal judge ordered the state to reopen gun shops by noon Saturday, ruling that Gov. Charlie Baker's executive order closing the retailers during the coronavirus pandemic violates the Second Amendment.

Ruling from the bench in a suit brought by local retailers and citizens, U.S. District Judge Douglas P. Woodlock said Thursday the goals of Baker's public health emergency don't warrant excluding gun stores from a list of essential businesses. The judge adopted a 10-point plan, drafted by the state in the event the closures were struck down, to reopen the shops with certain safety precautions in place.

"We don't surrender our constitutional rights. These plaintiffs have constitutional rights that deserve respect and vindication, and it becomes necessary for a court to do that rather than the executive when the executive declines," the judge said.

He added: "I don't have anything like a substantial fit between the goals of the emergency declared by the commonwealth and the burdening of the constitutional rights."

The court's order reopening the stores takes the form of preliminary relief and not the final word on the issue from Judge Woodlock or the parties.

In arguments, the question of how the closures "fit" the state's goal to hamper the spread of the virus became critical in Judge Woodlock's analysis as he adopted an intermediate level of review, requiring the state to prove its decision to close the stores was appropriately suited to the emergency.

Administration lawyers took the position that the limited time frame for the closure was enough to prove fit as well as alternatives such as private person-to-person purchases for guns and the availability of some ammunition at Walmart stores. Assistant Attorney General Julia Kobick told the court that the particular rationale for the gun store closures was to "stop chains of transmission" of the virus.

Woodlock noted that even the ammunition reportedly available at Walmart isn't the "kind of core ammunition" designed for personal protection inside one's home, the core Second Amendment right designated in 2008 by the U.S. Supreme Court in District of Columbia v. Heller.

The explanation wasn't convincing for Judge Woodlock, who said he didn't see in them "anything other than mere implication of generality" and found the order didn't substantially fit the situation whereas other retailers like liquor stores were allowed to remain open.

Plaintiffs' attorneys David Jensen and Andrew Couture told Law360 they're pleased with the ruling, even though it doesn't provide all they and their clients requested.

"This will provide the citizens of Massachusetts with a realistic means to exercise their constitutional right to acquire arms for their protection," Jensen said. "It is important to ensure that we protect constitutional rights, even (and especially) during times of emergency."

Under the restrictions outlined in the state's plan, gun store employees and customers must wear masks, hand-washing and alcohol wipes must be available, and sales can only be made by appointment. Social distancing requirements must also be followed.

Judge Woodlock indicated his order would not apply to shooting ranges because the record of evidence in the case was insufficient to rule on those business's claims.

Kobick immediately asked the court for a stay of the order pending appeal, but Judge Woodlock denied the request.

His ruling came on the second day of a motion hearing for a restraining order to reopen the stores. During the first day, Judge Woodlock grilled the state for lacking a rationale for Baker's decision.

Baker initially included gun shops as "essential" businesses that could stay open during the public health response to the pandemic in late March. But by early April, the governor removed firearms dealers from that list.

In two lawsuits joined into the single case, Massachusetts citizens, gun shops and advocacy groups asked the court to force the state to let the shops resume sales. Lobbyist groups, including the National Rifle Association, also decried the closures as egregious violations of constitutional rights.

Representatives for Gov. Charlie Baker were not immediately available for comment.

The McCarthy plaintiffs are represented by David D. Jensen PLLC.

The Cedrone LLC plaintiffs are represented 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 Orlando Lorenzo.

Update: This article has been updated with more details from the order and comment from plaintiffs' counsel.

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