(Photo by Cary Drane – 2020 Lobby Day in Virginia – (c) 2020 – Cary Drane)
Unfortunately, it is our opinion that the current attempt to enjoin Governor Northam’s unconstitutional restraint of 1st Amendment speech and the 2nd Amendment right to bear arms will fail because Gun Owners of America, Inc. and the other plaintiffs failed to adequately address the correct legal issues.
It is long recognized that the Government may impose reasonable time, place and manner restrictions on speech, including even political speech. However, it is also recognized that those restrictions must be “narrowly tailored.” Governor Northam’s declaration of a state of an emergency by Executive Order 49 which silences the citizens from carrying or possessing firearms on the annual “Lobby Day” in the face of his attempts to push through laws infringing the 2nd Amendment is deplorable and appears aimed at escalating tensions with Virginia citizens who are angered by his brazen disregard of the U.S. Constitution as well as of the Virginia legislature (Va. Code § 44-146.15(3)) enacted to prevent the very thing he is now doing.
Instead of addressing the manner in which the restrictions are not “narrowly tailored” the appellants ask the court to look at the “Real Truth factors” to the Executive Order # 49, calling his actions “disingenuous,” “flimsy” and the like.
The U.S. Supreme Court stated that court will uphold restrictions in time, place and manner so long as they are “narrowly tailored” to serve a significant governmental interest, which does not require the least restrictive means. Clark v. Community for Creative Non-Violence, 48 US 288, 293 (1984). However, the Governor’s Executive Order or regulation may not “burden substantially more speech than is necessary to further the government’s legitimate interests,” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). In the present case, pointing to some supposedly credible intelligence of a few seditious individuals outside of the Commonwealth of Virginia, he has imposed a sweeping prohibition of firearms by all on the Capital grounds, removing the rights of all Virginians to exercise the 1st and 2nd Amendment rights by a display of such protected firearms on the “Lobby Day” as they have done for years. This is clearly a substantial burden that exceeds any necessary restrictions necessary to further the government’s legitimate interests. As such, it is unconstitutional. Declaring that the government does not have any legitimate interests is simply not going to win the argument.
So, unless the Virginia Supreme Court liberally construes the assignment of errors or applies an ends of justice rational to expand the errors assigned, it is unlikely that the Virginia Supreme Court will address the unconstitutional flaw in Governor Northam’s Executive Order which appears designed to silence his opposition with the practical result of escalating tension.
Thomas H. Roberts & Associates, PC
Postscript – The Virginia Supreme Court rejected the petition stating “The circuit court decided this case in less than one day, and, accordingly, the record before the court is scant, there is no transcript or written statement of facts detailing the events of the hearing, and we are unaware of any evidence that was taken. The only information we have on which to resolve the weighty issues raised by the parties are pleadings accompanied by cursory attachments. Accordingly, the petition is refused.”