Incidental Burdens in a Pandemic

  • Date:
  • April 6th, 2020

By: Darrell Miller

Nationwide, state and local officials have issued emergency orders closing vast sectors of the economy in order to prevent the spread of coronavirus.  Gun rights advocates have responded with lawsuits claiming, inter alia, that the Second Amendment exempts them from these orders.  Their argument, in essence, is that the right to keep and bear arms guarantees gun stores a carve out from neutral rules of general applicability. But does it?

Constitutional rights—including the right to keep and bear arms—are often burdened by regulations that exist for reasons other than those relating to the right. General zoning laws might prohibit the construction of a gun store or a firing range. Such an establishment, if it opens, might have to pay property taxes, just as those who purchase guns might be subject to sales tax.  Those consumers can recover in tort if their firearms are defective. All of these legal rules impact the ability of people to keep and bear arms, but exist for reasons having nothing to do with guns in particular, and the Second Amendment does not on its face guarantee any kind of exemption from them.

The same is true for many other constitutional rights—it is the problem of “incidental burdens,” explored by Mike Dorf in this fantastic article. The closure of establishments in the face of COVID-19 makes Dorf’s analysis all the more prescient and important. If closure orders are truly being used as a pretext to regulate constitutionally protected activity (as gun sellers and abortion providers have argued) then they are not “incidental” and the normal constitutional rules apply. But, on their face, such orders are presumptively temporary, neutral, and designed to prevent contagion, not to burden rights.  They apply broadly to many kinds of activity, not just gun stores, which suggests that they aren’t targeting gun shops per se. To the extent that the orders apply to parks, libraries, theaters, bookstores, churches, mosques, and synagogues, all kinds of constitutional activity is affected:  freedom of assembly, freedom of speech, freedom of religion, and freedom to marry.  Gun sellers have, by and large, successfully argued for carve-outs to these generally applicable rules, and whether they should be deemed “essential” as a policy matter is a matter of debate. What interests us is the role the Second Amendment should play in the analysis.

Gun shop exclusion litigation during the pandemic is a real-world instantiation of an academic puzzle we worked through a few years ago.  In What is Gun Control?: Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment we discussed the implications of the Second Amendment when the burden on the right is incidental – the result of general operation of neutral rules.   In that article, we explored how ordinary rules like negligence, trespass, and nuisance may operate in light of the Second Amendment.  For example, does the mere fact that a gun is negligently stored – as opposed to a bottle of medicine or a box of matches – have any bearing the legal analysis?

The question in our mind with these gun shop suits is much the same:  does it matter, and if so why does it matter, that the shop seeking to remain open supplies guns instead of books, or prophylactics, or spiritual guidance? In our article, we suggest some considerations based on (1) text, history, and tradition; (2) the burden on the individual rights holder; (3) the structural burden of allowing claims to proceed; and (4) the character and purpose of the burden imposed. Here is the abstract:

Particularly in places with few recognizable gun control laws, “gun neutral” civil and criminal rules are an important but often-unnoticed basis for the legal regulation of guns. The burdens that these rules impose on the keeping and bearing of arms are at times significant, but they are also incidental, which raises hard questions about the boundaries between constitutional law, regulation, and legally enforceable private ordering. Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace? In the course of addressing these practical questions and the broader conceptual challenges that they represent, this Article fashions analytic tools that may be useful to a wide range of constitutional problems.

Our examples were modest compared to the current crisis, of course, but the basic framework—which allows for some claims based on incidental burdens to proceed—seems more relevant now than when we wrote it. (As does Mike’s characteristically thoughtful response!)


Joseph Blocher, Lanty L. Smith Professor Law, Duke University School of Law

Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke University School of Law