A dark coronavirus day at the Pa. Supreme Court

A dark coronavirus day at the Pa. Supreme Court

There are two great fears in any public emergency, such as the current coronavirus pandemic. One is that the “sound” in sound public policy will be disregarded. Another is that fundamental civil liberties will be quashed.

Pennsylvania Gov. Tom Wolf failed that first test. The Pennsylvania Supreme Court appears to be headed down a dangerous slippery slope on the second count.

Wolf has since partially corrected his misstep of Thursday last: A sudden, expansive and wholly confusing business-shutdown order that allowed some “essential” businesses to remain open while closing industries critical to the former’s supply chain.

In a nutshell, and among myriad governance head-scratchers, steel mills were being asked to produce steel without coal.


Wolf corrected that and some other oxymoronic restrictions – such as an initial prohibition against payroll preparation companies to operate — in a subsequent order. But the definition of “essential” businesses surely is not only painfully subjective but, in another area, liberty traducing.

To that point, the Pennsylvania Supreme Court, late Sunday, issued a very dangerous, one-sentence ruling that should send chills up and back down the spines of every American.

One of the businesses that Wolf deemed to be a “non-life-sustaining business” were licensed firearms dealers. The obvious non sequitur of the logic normally would make us guffaw.

But such a blatant violation of the Second Amendment is not chortling matter.

A consortium of commonwealth residents, backed by the Civil Rights Defense Firm, filed an emergency petition with the state’s highest court, which then was challenged by the governor and the City of Philadelphia.

In an extraordinarily frightening ruling – with absolutely no stated rationale –the high court let the firearms dealer closure stand.

What’s next? Newspapers? Radio and TV stations? Websites? Public policy think tanks?

If the Pennsylvania Supreme Court is so arrogant as to think that it can brush aside this civil right, what prevents it from running roughshod over the nine other constitutional guarantees of the Bill of Rights?

To their immense credit, three justices issued a vociferous dissent. They called the ruling “an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this commonwealth – a result in clear tension with the Second Amendment.”

And in full and reckless contravention of the settled law that states it to clearly be unconstitutional to promulgate any kind of statute  authorizing government officials to prohibit the sale of firearms during state of emergency.

How could a majority of the Keystone State’s highest court be so nonplussed about such an egregious truncation of a fundamental right?

One of the dissenters was Justice David Wecht, a Democrat, himself in quarantine because of familial exposure to coronavirus. From the closing of Wecht’s dissent (with paragraph breaks added for reading ease):

“In my view, it is incumbent upon the governor to make some manner of allowance for our citizens to continue to exercise this constitutional right.

“This need not necessarily take the form of a generalized exception to the order for any and all firearm retailers, although such retailers have been classified as “essential” elsewhere in our nation.

“To the contrary, just as the governor has permitted restaurants to offer take-out service but restricted dine-in options, the governor may limit the patronage of firearm retailers to the completion of the portions of a transfer that must be conducted in-person.

“Such an accommodation may be effectuated while preserving sensible restrictions designed to slow the spread of COVID-19, but nonetheless provide a legal avenue for the purchase and sale of firearms, thus avoiding an impermissible intrusion upon a fundamental constitutional right.”

Or as Josh Blackman, a constitutional law professor, offered in a commentary at Reason.com:

“If people can enter a McDonald’s to pick up a Big Mac, then people should be able to enter a firearms store, complete the requisite background check process, and get their firearm. …

“Our society is veering toward uncharted waters. At some point, I worry that civil unrest will spread. And I am not confident that first responders will be able to handle violence, looting and other forms of crime.

“Indeed, the very act of arresting a person requires physical contact with a person who may be symptomatic. Business in Philadelphia, Chicago and across the country are already boarding up their windows.

“The right to bear arms for defense is especially important in such times of conflict. You may dial 911, and the response is, ‘Sorry, we can’t help right now.’

“At that point, Gov. Wolf’s executive order will not provide any protection. A functional firearm will be far more useful than a pallet of toilet paper.”

Again, if Pennsylvanians’ Second Amendment rights can be so dismissively eschewed, what right next will be dispatched?

Colin McNickle is communications and marketing director at the Allegheny Institute for Public Policy (cmcnickle@alleghenyinstitute.org).