54: Are Gun Stores "Essential"?

Hosts JJ and Kelly Sampson join VP of Legal Jon Lowy to talk about the U.S. Department of Homeland Security’s advisory guidance designating gun stores, shooting ranges and other portions of the gun industry as “essential critical infrastructure.” In return, Brady has filed a Freedom of Information Act (FOIA) request to obtain documents pertinent to the gun industry’s efforts to influence this decision. What does that mean? Listen to find out!

Mentioned in this podcast:

• We're Taking Legal Action on DHS Guidance on Gun Stores (Brady)
• So Called "Second-Amendment Sanctuaries" (Brady) 
• Gun Stores Ruled Essential (Wall Street Journal)

For more information on Brady, follow us on social @Bradybuzz, or via our website at bradyunited.org. Full transcripts and bibliography available at bradyunited.org/podcast.

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Music provided by: David “Drumcrazie” Curby
Special thanks to Hogan Lovells, for their long standing legal support 
℗&©2020 Red, Blue, and Brady

Transcript

JJ:   0:08
Hey everybody. This is the legal disclaimer where we tell you that the views, thoughts and opinions shared on this podcast belongs solely to our guests and our hosts, and not necessarily Brady or Brady's affiliates. Please note that this podcast contains discussions of violence that some people may find disturbing. It's okay. We find disturbing, too.  

JJ:   0:40
Hey everybody, welcome back for another minisode brought to you from Red, Blue and Brady. In response to the U.S. Department of Homeland Security's advisory guidance that designated gun stores, shooting ranges and other portions of the gun industry as quote essential critical infrastructure end quote, Brady filed a Freedom of Information Act, a FOIA request, to obtain documents that would, you know tell us about the gun industry's efforts to influence this decision. To talk about that today, I am joined by the great Kelly and Lowy, both of whom you should already know. But for those who don't remember, can you two introduce yourselves?

Jon Lowy:   1:15
Sure, I'm Jon Lowy, I'm vice president of legal and chief counsel at Brady.

Kelly Sampson:   1:21
I am Kelly Sampson, I'm counsel at Brady.

JJ:   1:24
And welcome back for co-hosting Kelly. I've missed you.

Kelly Sampson:   1:27
I've missed you too.

JJ:   1:29
And I think at this point I miss everyone's faces as well. Sorry, physical distancing is starting to take a toll even on my little introverted heart. Well, and so the reason why I get to chat with both of you today, which is really exciting, is that Brady filed a FOIA request, which I think everyone out there should be super interested in. Generally freedom of information requests I think are very interesting but this one in particular just really piqued my interest. And I was wondering if maybe John you could start with just explaining first what a FOIA request actually is, as I say in the podcast often, Schoolhouse Rock it.

Jon Lowy:   2:10
Well, FOIA is one of the, you know, Washington acronyms. It stands for Freedom of Information Act, which is a federal law which essentially says Americans have a right to information from the government because the government is supposed to be our government, not their government. We pay for it. And if the government has information, that's information that belongs to you and I not to a government agency or government bureaucrat. And so generally Americans are entitled to get that information. There are some exceptions about confidential stuff or stuff that could you know harm important government activity. But besides that, we send a letter to the appropriate government agency. It's called a FOIA letter, and we say give us information of these categories of information and they're required to give it to us within a few weeks. Usually takes longer. And if they don't give it, we go into court and we sue them and say, judge force them to give us information.

Kelly Sampson:   3:21
So what was Brady's latest FOIA requests about? What information did the letter request?

Jon Lowy:   3:27
Sure. Well, let me give a little bit of background. As we all know, we're in the midst of the coronavirus now. 

JJ:   3:39
Wait, we are? I haven't heard of this, Joh.

Jon Lowy:   3:45
Um, yeah, that's why we're living in zoom conference calls and their bunkers. As we all know, governors and other officials are requiring that businesses be closed. People stay at home so that there's not interaction that spreads the virus. And we're all chipping in. We're all sacrificing. Businesses are losing a lot of money because of this. People are losing their jobs. But that's what has to be done to prevent the spread of this, you know, horrific lethal illness. Except the gun industry, which has been doing just the opposite. They've been pushing to sell as many guns as possible and to keep gun stores open. And so as part of that, the gun lobby was lobbying Trump Administration to encourage at gun stores be designated as essential or what's called critical infrastructure so that they would be kept open. Then just this past weekend, the Trump Administration's Homeland Security Department issued a guidance that said, basically, we view the firearms industry as critical infrastructure, and we recommend that all gun businesses be kept open. And that's how this FOIA request came about because the Trump Administration did it and we want to find out, did you do this because Wayne LaPierre and the NSSF and the rest of gun industry basically told you to do it? Did you ask Anthony Fauci and other public health experts whether this is a dangerous thing that's gonna endanger the public and continue to, you know, spread the virus? You know what's going on behind this decision, and it gets more legal wonky, but that's the gist of what our FOIA request is.

Kelly Sampson:   5:47
Doesn't the government have to keep gun stores open because there's a Second Amendment right? So I'd like to understand a little bit more about why this might be the result of lobbying rather than just, you know, a requirement.

Jon Lowy:   6:02
First of all, there is, the Supreme Court has held that there is a Second Amendment right for law abiding, responsible citizens to have a gun in the home for self defense. However, courts have not held that there is a Second Amendment right to sell guns or to immediately buy guns. In fact, waiting periods in California, a 10 day waiting period was upheld. You don't have a right to immediately have a gun. And you know it certainly, in our view, constitutional to have a, you know, temporary closure of gun stores to deal with this public health emergency. And in fact, even if there was a Second Amendment right to immediately buy guns that could give way to this public health emergency. I mean, no right is absolute, and every right can be restricted to deal with public health concerns even when you're not in an emergency, but certainly when you are. We have a right to peaceably assemble, to protests in Washington. To march down Pennsylvania Avenue and protest for stronger gun laws or other causes. We can't do that now, you know, under the stay at home orders that restricts our constitutional rights. But that's permissible for good reason. So you know, there is no Second Amendment claim here. However, that's part of our FOIA request in fact; is we ask the government, basically, did you consider whether or not gun store closures are constitutional or unconstitutional? Because in my experience, a lot of times gun lobby people will just say it's unconstitutional. You can't shut, you know, gun stores down and they actually haven't looked at the law at all. They're just spouting off.

JJ:   8:01
Well and other Brady FOIA requests in the past have sort of pointed out this focus on what the gun lobby wants, as opposed to maybe what's best for the public, right? I'm thinking, in particular of the FOIA requests that came out in terms of these so called Second Amendment sanctuaries.

Jon Lowy:   8:19
That's exactly right. In fact, in a number of ways in that case, you know, we saw these sheriffs in New Mexico and some other places that were saying we're not gonna enforce gun laws that we deem unconstitutional, we're not going to go to court. We're just gonna say we're not gonna enforce those laws because we don't like them. And we did some state FOIA requests, the same sort of thing, but to state governments. And we found a lot of gun lobby influence in those decisions. These things weren't coming sort of organically from grassroots, or from sheriffs; gun lobbies were writing their talking points and pushing this whole cause. We've also done FOI requests at the Trump Administration and found tremendous gun lobby influence. Even gun lobby officials, essentially writing a game plan for ATF for how to not enforce gun laws. So that's exactly the sort of thing that's sort of classic FOIA is to see, is the government doing what they're supposed to be doing? And are they just catering to private interests like the gun lobby? There's a number of troubling things about this Trump Administration move, but one is that you know the Department Homeland Security didn't have to issue this. It's not even a binding directive. It doesn't have to be followed by governors or officials. But it seems like what they may have been trying to do is to put their thumb on the scales of justice so that when the gun lobby files lawsuits, as they're doing around the country to stop governors and other officials from closing gun stores, basically they want a special exemption from the general closures of businesses. It may well be that the Trump Administration wanted to influence judges in those cases so that they'd follow the  Department of Homeland Security and rule in favor of the gun lobby. It seems to be having that effect, even now. We're seeing a number of governors or other officials reversing their positions where they had decided that it was in the interest of public health to close gun stores along with other stores. And now some of them are backtracking and saying, ok gun stores can be kept open. It seems like one thing that may be going on is they're feeling well now that the Trump Administration has made this official position that they believe gun businesses are critical infrastructure--judges may well follow that and may well rule against us. And then maybe the NRA is gonna come after us to pay out taxpayer dollars in attorney's fees if we lose the suit. And some of these officials are going to say, that's not we want to deal with here while we're, you know, trying to scrape every bit of resources we can to pay for ventilators and masks and deal with this huge crisis. And so you know, that's too bad, and that's going to it's going to spread the virus more, and it's really that awful. But that's you know what's going on to make a few bucks for, uh, for the gun industry.

Kelly Sampson:   11:51
It sounds like, you know, we've learned in the past from FOIA requests that there have been circumstances where the gun lobby has effectively been able to go demand certain measures and that the government has complied with them. Is the problem with that like a legal one? Is that illegal? Or is it more that the problem is that that's not the democratic way to go about creating gun regulations? So is this, you know, if we find out that Wayne La Pierre, you know, demanded this is that a legal problem or is that more a political and a social problem?

Jon Lowy:   12:24
So I assume that you could have a fact pattern where there would be unlawful conduct that would be uncovered. But most of this that we're talking about is lobbying, that is probably not illegal, but isn't something that most Americans would be happy with. I mean, right now, decisions about what stores and businesses remain open should be a public health issue. I mean, the issue is one what's needed to flatten the curve and to prevent the spread of the virus? And two are there truly essential businesses that also need to stay open for us to be healthy and functioning as a society. You know, that's my grocery stores, being able to eat. Um, and there's you know other businesses that are needed because you know that there'll be major public health effects if we, uh, if we shut them down. Gun stores don't really fit into that picture. You know, they're not, they're not necessary for you to that degree. You know, it's not food and water were talking about, and yet, when people are buying guns, or as we've seen in some pictures lining up in close proximity, not nowhere close to not six feet away, but right on top each other to buy guns, they're spreading the virus. And, you know, when you buy guns, you can't buy them by vending machine. Can't have curbside pickup of a gun. There's a lot of human interaction, rather close interaction, you know, with the clerk, even if you are alone in the store. So it's a sort of transaction that's going to really involve, you know, a great risk of spreading the virus.

JJ:   14:24
Which is very troubling, especially now, you know, profits over people isn't a good plan.

Jon Lowy:   14:30
Yeah, exactly. And that's, you know, even on top of the the hyping of gun sales, where reportedly we're getting a lot of first time or some at least first time gun buyers. And that has some troubling aspects as well, because I am interested to know whether those buyers are getting the training that they need to safely handle their guns. You know, I mean a responsible gun dealer is going to say to a first time gun buyer, I wanna make sure you're trained before you bring that gun into your home. Some of them say I'll train you are or, you know, recommend classes. I don't know if that can happen now, given the physical distancing. And so that's a whole other level of risk that we may be getting at. That's also exacerbated by what he gun lobby is doing.

JJ:   15:24
Well on that note, thank you so much for coming on, especially so short notice-wise. And thank you for all the work your amazing legal team do! I'm so impressed and you guys move so quickly on this.

Jon Lowy:   15:37
Thank you. The feeling is mutual and I'm one of the biggest fans of the podcast.

JJ:   15:46
Looking for more gun violence prevention content? Try Audible. Audible is a leading provider of premium digital spoken audio information and entertainment on the internet. Audible content includes more than 250,000 audiobooks and spoken word audio products. Free apps for every type of phone and device so you can access your books anytime, anywhere, right from your smartphone. Right now I'm listening to Gunfight by Adam Winkler so I can spend this time learning more about the District of Columbia v. Heller case. Brady listeners can get a special 30 day trial and free audiobook by going to www.audible.com/Bradyathome that's slash Brady at home.  

JJ:   16:26
Thanks for listening. As always, Brady's life saving work in Congress, the courts and communities across the country is made possible thanks to you for more information on Brady or how to get involved in the fight against gun violence, please like and subscribe to the podcast. Get in touch with us at Bradyunited.org. Or on social @Bradybuzz, be brave and remember: take action, not sides.