While no one knows what Governor Wolf meant by “nonessential” and there is no executive order or written proclamation to look to, we first need to determine whether a Pennsylvania governor has the power and/or authority to order the closure of private businesses, regardless of whether essential or nonessential.
Governor Wolf cited the Emergency Management Services Code, 35 Pa.C.S. § 7101, et seq. – “Emergency Code” as the basis for his power. But what powers, exactly, does that law confer?
Section 7301 sets forth the explicit powers of the Governor during a “disaster”. Thus, before we address the putative powers of a governor in Pennsylvania during a “disaster,” we need to know what constitutes a disaster and whether COVID-19 constitutes such. For that, we need to look to the definitional section found in Section 7102. There, we find the following definitions –
“Disaster.” A man-made disaster, natural disaster or war-caused disaster.
“Man-made disaster.” Any industrial, nuclear or transportation accident, explosion, conflagration, power failure, natural resource shortage or other condition, except enemy action, resulting from man-made causes, such as oil spills and other injurious environmental contamination, which threatens or causes substantial damage to property, human suffering, hardship or loss of life.
“Natural disaster.” Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.
“War-caused disaster.” Any condition following an attack upon the United States resulting in substantial damage to property or injury to persons in the United States caused by use of bombs, missiles, shellfire, nuclear, radiological, chemical or biological means, or other weapons or overt paramilitary actions, or other conditions such as sabotage.
What is glaringly absent from all those definitions is the word “disease” or “virus” and, as a result, the Emergency Code does not apply to COVID-19. One might think that is an oversight, but the General Assembly has explicitly enacted a law regarding disease – the Disease Prevention and Control Law, 35 P.S. § 521.19 – and that law does not provide the Governor with the power to close private business, regardless of whether essential or nonessential. Oh, and by the way, none of the laws talk about essential and nonessential businesses.
Perhaps most importantly is Article 1, Section 12 of the Pennsylvania Constitution, which provides
§ 12. Power of suspending laws. No power of suspending laws shall be exercised unless by the Legislature or by its authority.
But what about the concern over firearms?
First, since the Emergency Code does not apply to COVID-19, the powers bestowed upon the Governor in Section 7301 are meaningless. But, if we assume, arguendo and for philosophical debate, that the Emergency Code did apply, what powers does the Governor have to regulate firearms and ammunition?
Going back to Section 7301, the General Assembly, in violation of the Second Amendment to the U.S. Constitution and Article 1, Sections 21 and 25 of the Pennsylvania Constitution, seemingly provided the Governor with limited power to regulate firearms. Specifically, Section 7301(f)(8) provides:
(f) Additional powers.–In addition to any other powers conferred upon the Governor by law, the Governor may: …
(8) Suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives and combustibles.
BUT, the General Assembly would later address the concern of seizure post-Katrina by enacting 18 Pa.C.S. § 6107(b), which provides:
(b) Seizure, taking and confiscation.–Except as otherwise provided under subsection (a) and notwithstanding the provisions of 35 Pa.C.S. Ch. 73 (relating to Commonwealth services) or any other provision of law to the contrary, no firearm, accessory or ammunition may be seized, taken or confiscated during an emergency unless the seizure, taking or confiscation would be authorized absent the emergency.
c) Definitions.–As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Accessory.” Any scope, sight, bipod, sling, light, magazine, clip or other related item that is attached to or necessary for the operation of a firearm.
“Firearm.” The term includes any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any weapon.
Nevertheless, it is time that Pennsylvania that we enact HB-1412 (permitting constitutional carry), HB-1747 (generally repealing 18 Pa.C.S. 6107 and removing “firearms” from 35 Pa.C.S. § 7301(f)(8)), and HB-303 (generally repealing the unconstitutional transportation laws). So, while you are self-quarantined, take a few minutes and contact your elected officials and demand that they enact these bills immediately (in addition to HB 1066 (preempting local regulation of firearms and providing for attorney fees and costs))! Many county sheriffs, in violation of their oaths and 18 Pa.C.S. § 5301, are refusing to issue licenses to carry firearms; thereby, placing individuals in harms way during a time where they need the ability to defend themselves the most.
Furthermore, in the event the Governor or Pennsylvania State Police decide to overstep their authority, we are prepared to go into court on an emergency basis to have any unconstitutional usurpation of power enjoined. We did it when they violated the constitutional rights of Pennsylvanians with their “partially manufactured frames and receivers” policy and we’re prepared to do it again.
If you or someone you know has had their rights violated by a Government agency, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.
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Update:
