By Dan McDermott
APRIL 28, 2020 — A Circuit Court judge in Lynchburg ruled yesterday that Virginia Governor Ralph Northam exceeded his authority in ordering the Safeside Lynchburg indoor gun range to close.
The temporary injunction prohibits Northam, the Virginia State Police and all other law enforcement agencies in the commonwealth from prohibiting access to Lynchburg Range and Training, LLC d/b/a Safeside Lynchburg.
Northam’s Executive Order 53 temporarily closed all indoor recreation areas due to COVID-19 concerns, specifically listing “indoor gun ranges.”
Northam’s order claimed authority from Article V, Section 7 of the Constitution of Virginia and from § 44-146.17 of the Code of Virginia.
But in a letter to attorneys Judge F. Patrick Yeatts said Northam’s order violates § 44-146.15(3) of the Code of Virginia. That section states that “Nothing in this chapter is to be construed to empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor, any political subdivision of the Commonwealth, or any other governmental entity as an emergency shelter or for the purpose of sheltering persons;”
Virginia Attorney General Mark Herring’s office said they are analyzing the decision and will decide how best to proceed.
“Governor Northam’s efforts to save lives and slow the spread of COVID-19 are necessary and proving to be effective, but unfortunately, the gun lobby believes the ability to shoot a gun indoors during this pandemic is worth risking further spread of the virus and making Virginia communities and families less safe,” Herring said.
Herring’s staff notes that the injunction lasts through May 8, 2020 and only applies to Lynchburg Safeside and then only if the gun range maintains social distancing and sanitation requirements listed in Executive Order 53.
Asked for his take, Virginia attorney Rich Kelsey describes the decision as a long opinion that meanders a bit but says that in the end, the court is correct.
“The Governor’s powers are, like our rights, subject to limits. He does not show or attempt to show how his closure of gun ranges is narrowly tailored to an identifiable and justifiable government interest that properly restrains a Virginia and US Constitutional right. I’d add, as I have said repeatedly, the longer these state executive orders stay in place upon the liberty of the people, the more they will be challenged, and the more we will find that the powers are not as broad as Governors think — nor, should they be. Every Government action that restrains liberty ought to be subject to healthy suspicion and a high judicial burden,” Kelsey said.
Kelsey is a former Assistant Dean and Law Professor at George Mason Law School. He is an author and frequent legal and political commentator. He is now in private practice with the Impresa Legal Group.