There is an interesting fight brewing in Jackson, Mississippi over gun rights — a dispute that could foreshadow the type of constitutional concerns that Attorney General Bill Barr referenced earlier. Mayor Chokwe Antar Lumumba relied on state law for emergency orders and the current pandemic to justify a ban on open carry within city limits. That drew an objection from Attorney General of the State Lynn Fitch that such an order is unconstitutional. I previously wrote how churches could be restricted under the pandemic. However, this is an example of officials exceeding their authority in limiting the exercise of a constitutional right. Open-carry has not been declared a federal constitutional right, but the justification by Lumumba would be difficult to maintain on a legal basis.

Lumumba claimed authority under the Mississippi Code 45-17-7 during the pandemic as granting him “the discretion in the interest of public safety and welfare to issue such orders that are necessary for the protection of life and property.” However, he cited the scourge of gun violations — the justification raised before the pandemic as a basis for such gun controls. That makes the pandemic appear purely opportunistic.

Indeed, his video tape states that “for too long, gun violence has plagued our city and disproportionately affected Black and Brown communities here in Jackson and nationwide.” He added “The open carry law not only provides protection to individuals who are armed with illegal weapons, it creates an atmosphere of fear and intimidation in the community.” That seems to have little grounding in the pandemic emergency as opposed to the general opposition to open carry laws.

The open carry law is viewed as a state right under Mississippi constitutional and statutory law. If a court agreed, local governments would be preempted in limiting such a right. That appears to be what Mississippi Attorney General Lynn Fitch has in mind in declaring “Cities can’t usurp the authority of the State’s elected Legislature and violate the Constitutional rights of the people. I support the 2nd Amendment and will enforce the laws of this State.”

Barr notably warned

“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.”

This would seem a matter best left to the State Attorney General. As noted, there is no federal precedent treating open carry as a constitutionally protected right as opposed to gun ownership. Thus, going to federal rather than state court would not seem an optimal legal strategy.

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