UPDATE: Circuit Court Judge Joi Taylor has denied the VCDL’s request for an injunction to block Governor Northam’s emergency gun ban declaration. Judge Taylor based her denial on the Heller decision’s ruling that gun rights are not unlimited and that prohibitions of firearms in “sensitive places such as schools or government buildings” is reasonable.
#BREAKING: Here is Judge Joi Taylor’s ruling denying a request for an injunction against Gov. Northam’s firearm ban that goes into effect tomorrow night.
— Cam Thompson (@CamThompsonCBS6) January 16, 2020
The fight is not over. A judge today denied the GOA-VCDL challenge to Gov. Northam’s illegal gun ban. GOA and VCDL are now appealing to the Virginia Supreme Court. Please stay tuned.https://t.co/CMkYl2nLfu
— Erich Pratt (@erichmpratt) January 16, 2020
By Jeff Hulbert
With the massive gun rights demonstration just days away at the Virginia Capitol, there is chance that the “emergency” ban on firearms on the statehouse grounds announced by Governor Ralph Northam yesterday can be reversed.
The foundation for a reversal appears strong, based on current state law. The question is now about logistics, a ticking clock, and the courage of the judiciary.
At the center of the controversy is the “Declaration of Emergency” Executive Order issued by Northam that is intended to disarm citizens gathering on the statehouse grounds this coming Monday for the Virginia Citizens Defense League’s annual Lobby Day event.
For almost two decades now, the state’s most prominent gun rights group, the VCDL, has coordinated citizen lobby visits on the third Monday in January, as well as staged a rally with prominent guest speakers on the capitol gounds that day.
In the past, the gatherings have drawn about a thousand people, many of them openly carrying sidearms, as well as a few carrying rifles.
With an onslaught of new, restrictive gun control proposals being pushed by the newly-seated Democrat majority in Richmond, this year’s Lobby Day event is expected to draw tens of thousands of citizens from across the the Old Dominion and surrounding states.
Citing “threat” potentials from militia groups and other “outside agitators,” the Governor’s executive order bans all firearms on the Capitol Square area (below in blue) through Tuesday. The ban also covers other items including helmets and shields.
The basis of the VCDL challenge to the ban is embedded in a state statute called the “Virginia Emergency Services and Disaster Law of 2000”.
Thanks to intense lobbying by the VCDL, language preventing a firearms ban in times of emergency was added to the statute in 2006. That action was spurred by the instances of illegal firearms confiscations in New Orleans in 2005 following Hurricane Katrina.
The Virginia Disaster Law stipulates that Second Amendment rights and lawful firearms possession of citizens shall not be abrogated during any “Declaration of Emergency” by the governor.
As you can see, the one exception for a governor to ban firearms is to secure “designated shelters” set up to aid citizens impacted by a disaster. The foundation for an injunction against Governor Northam’s order banning firearms will include these arguments:
- Open Carry of firearms in Virginia on Capitol grounds is legal
- Concealed Carry of firearms in Virginia is legal on the Capitol Grounds for those with Virginia carry permits and for those with permits the Commonwealth recognizes as reciprocal.
- Citizens exercising their First and Second Amendment rights at a demonstration on Capitol grounds—however large— does not constitute an emergency.
- The Capitol Grounds do NOT meet the definition of a “emergency shelter” or “for the purpose of sheltering persons”.
It is this last issue—the issue of “sheltering persons”—that the governor’s lawyers are likely to frame as the controlling basis for the “Declaration of Emergency” to clear the grounds of armed citizens.
It will be up to the VCDL’s legal talent to make the case that the Virginia statute’s language on “sheltering” cannot reasonably be stretched to include the 14.1 acres that make up the Capitol grounds.
To contort those “5.7 hectares” of rolling grassland and walkways into a “shelter”— the VCDL will likely argue—makes a mockery of the intent of the law and the limits on “emergency declarations” that are the very basis for the statute’s existence.
John Michel, a Maryland attorney and an active member of the Patriot Picket demonstration group, offered his analysis on the expected injunction, saying it will come down to the plain meaning of one word.
“It certainly appears Governor Northam has overstepped his statutory authority based on the plain and unambiguous language of the Virginia Emergency Services and Disaster Law of 2000. The statute itself makes clear the Governor is not empowered in any way to limit or prohibit the rights of the people to keep and bear arms, including the otherwise lawful possession, carrying, or transportation of firearms, except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor for the purpose of sheltering persons. The key here is that the Governor’s authority only extends to designated “shelters” or “sheltering.”
The term “shelter” isn’t defined within the statute. Hence, one needs to look at the plain and ordinary meaning of the term. Shelter is a general term, but nearly all definitions include a roof or basic building to house and protect persons from the elements, and perhaps where food and aid can be dispensed. Unless the Governor intends to erect roofs and walls, and provide heat and food, it is impossible to accurately characterize the acreage surrounding the Capitol buildings as a designated emergency shelter.”
Setting aside his lawyer’s hat, Michel—speaking as a long-time gun rights advocate—says he is suspicious that Governor Northam’s “emergency” is an effort to sabotage the VCDL gathering and to clear space for Bloomberg-funded anti-gun groups.
“Even to the extent “sheltering” is treated as a verb, it appears the Governor’s Executive Order serves only to provide his favored constituents with front row “safe space” seats in the public square by excluding persons exercising otherwise entirely lawful activities.”
Michel is optimistic that a VCDL injunction to overturn the Capitol grounds gun ban can get before a judge and be decided quickly.
“Is political sheltering what the legislature contemplated when it enacted the law? Certainly not. Would this sheltering argument hold up if interested persons seek emergency injunctive relief to void the firearms prohibition as an impermissible or unnecessary over-reach by the Governor? I hope we find out, and there certainly is time to file and have the issue heard and decided by a court on an emergency basis.
“First, the legislature’s joint rules committee prohibited law-abiding citizens the right to carry within the Capitol Building. Now the Governor is attempting to prohibit the right to carry on the Capitol grounds. The next move is clear; both will be trying to remove firearms from the State altogether.”
Northam’s “Emergency Declaration” is slated to go into effect from tomorrow, Friday, and continue through next Tuesday, the day following the VCDL event.
Below are stacks of fencing that the Northam administration has brought in to encircle the State Capitol.
Attendees will apparently be forced to enter the Capitol grounds through a single entrance, a move that would appear to further inhibit the VCDL-sponsored gathering.
There will be a single entrance into VA Capitol square on Monday, ahead of what may be a massive rally opposing gun control legislation in Virginia. pic.twitter.com/HaKSK39QE3
— Mel Leonor (@MelLeonor_) January 15, 2020
There have also been suggestions that Governor Northam timed his order to minimize the opportunity for the VCDL to challenge it in court before this weekend.
Overturninging the Governor’s “emergency declaration” will require a degree of judicial courage. Whether the VCDL will be able to make its case before a judge with that degree of fortitude remains to be seen.
Jeff Hulbert is the founder of Patriot Picket.