9th Circuit Panel Says Pandemic-Inspired Shutdowns of Gun Stores Were Unconstitutional

Ventura County, California effectively banned ammunition or firearm purchases for 48 days starting in spring 2020. Ventura County, California also banned people from purchasing firearms or ammunition. They prevented those already owning guns from attending gun ranges and prohibited them from applying for carry permits. California law requires that all California residents have carry permits to be able to possess weapons outside their home. This was done in order to combat COVID-19. However, it allowed others that pose greater or similar risks for virus transmission.

The U.S. Court of Appeals 9th Circuit unanimously ruled yesterday, that Ventura County’s decision to prohibit a large range of firearm related activities for a month was in violation of the Second Amendment. Analyzing the same arguments in a second case, yesterday’s panel found that Los Angeles County also committed violations of the Second Amendment when they closed down gun shops for eleven days during the pandemic.

Judge Lawrence VanDyke observes the right to bear and keep arms McDougall against County of Ventura, “means nothing if the government can prohibit all persons from acquiring any firearm or ammunition….These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.”

U.S. District Judge Consuelo Marsh was overthrown by the 9th Circuit. He in 2020 rejected the challenge to Ventura County’s anti-gun Pandemic Policy. This rejection rejected the constitutional claims of individual residents, gun owners, ranges and retailers. Marshall declared that the county’s anti-gun pandemic policy was a legitimate exercise of public health power and it conformed to the Second Amendment.

The case illustrates the arbitrariness and inflexibility of COVID-19 lockdowns, as well as the willingness of courts to use public health as an excuse to violate clearly defined constitutional rights. This case also shows the resistance of some courts to treat the Second Amendment rights with equal respect. VanDyke ridicules these tendencies with a humorous “alternative draft opinions” that he proposes to his 9th Circuit colleagues when they reverse the panel’s decision. He considers this a natural outcome.

Marshall’s decision was heavily influenced by Jacobson v. MassachusettsIn a 1905 case, the Supreme Court upheld an authorized state regulation that placed a $5 penalty on Cambridge residents refusing smallpox vaccination. “Under the JacobsonMarshall stated, “Judicial review of constitutional challenges to state emergency measures during a public-health crisis is restricted.”

But the JacobsonAlthough the court rejected a 14th Amendment challenge against Cambridge’s vaccine mandate it acknowledged that judicial interference could be justified when local or state governments abuse their public health rights in “an arbitrarily unreasonable manner” or “far beyond what is reasonably necessary for the safety and security of the public.” Justice John Marshall Harlan stated that if a statute is purported to have been passed to safeguard the public’s health, public morals, and public safety it is “not real or substantial in relation to such objects” or “is, beyond all doubt, a plainly palpable invasion by rights secured under the fundamental law,” the court “has the obligation to make this determination, and give effect the Constitution.”

The Court also in JacobsonIt applied what was called a “rational basis test”, a deferential standard which the Court later declared inappropriate for cases that involved specific constitutional rights. “In the intervening century, since JacobsonVanDyke observes that “the Supreme Court has consistently determined that some amount of heightened scrutiny applies to the evaluation laws implicating certain, enumerated Constitution rights.” Given that, VanDyke notes: JacobsonIt does not relate to a particular, constitutionally enumerated rights and essentially applies rational basis review. Jacobson

VanDyke concludes that strict scrutiny is the right standard. This requires that laws be narrowly tailored in order to protect a “compelling public interest”. Because Ventura County’s regulations are so broad that it effectively prevented people from exercising their Second Amendment rights, VanDyke says this standard applies. Gun owners were also prohibited from carrying guns for self-defense or visiting ranges if they didn’t have permit to carry them.

California law requires that all ammunition and firearm sales must be made in person by a licensed federal dealer. This can either act as the seller or the intermediary for the required background checks. Ventura County made it clear that any “non-essential” business, which included gun stores, must be closed on March 20, 2020. It was also preventing legal access for ammunition and guns from being obtained. Gun ranges were also included in the lockdown, meaning that owners of guns could not receive the required training for carry permits, including live-fire firing exercises at a firing range.

This situation continued up to May 7, when “non-essential” businesses were allowed to reopen in certain circumstances. California law requires that people wait at least 10 days before purchasing firearms. This 48-day ban effectively made it impossible for potential buyers to obtain guns until they were waiting two months.

VanDyke states that the founders understood the urgent need for Second Amendment rights in times of temporary crisis. The modern society seems to agree, given the fact that ammunition and firearm sales rose during this recent pandemic. But if the government suspends these rights during times of crises, the Second Amendment itself becomes meaningless when it is needed most—especially to the victims of attacks.”

Are the County’s instructions “strictly tailored” in order to serve the “compelling Government Interest” of decreasing COVID-19 infection? According to the county, “social isolation” was used as a way of controlling pandemic virus infections. This did not justify why gun stores were forced to close, even though they could be sold by curbside service or appointment, while others businesses were permitted to continue operating.

VanDyke states that appellees have omitted any evidence or argument suggesting that closures of ammunition shops, gun shops, firing ranges, and gun shops stems the spread COVID in the same way as the closings of hardware stores and bike shops. VanDyke notes that “carte blanche” county’s rationale, which has “nothing to do with actual fundamental rights at issue”, is “devoid of exemptions or inconsistencies.”

That regulatory scheme, VanDyke says, “ultimately boils down to the government’s designation of ‘essential’ and ‘non-essential’ businesses—but nowhere has the government here explained why gun stores, ammunition stores, and firing ranges are ‘non-essential’ businesses while bicycle shops, hardware stores, and golfing ranges are ‘essential.'” He says that if the county was right and its distinctions were not subject to judicial scrutiny, it could order Mexican restaurants to be closed, but allow French restaurants to remain open. The arbitrariness in that distinction wouldn’t matter more than that between shooting at outdoor gun ranges or bicycling.

Ventura County kept its ban on gun sales in place even after U.S. Department of Homeland Security made guns dealers and ranges an “essential critical infrastructure”. This was on March 29th 2020. California Gov. Gavin Newsom’s march 19 order to impose a state lockdown exempted the “federal critical infrastructure sector.”

Andrew Kleinfeld, in a concurring opinion stresses that the county did not offer any services. AnyIt was necessary to justify the differences it made for public health reasons. He notes that “generally in Anglo-American tradition everything is allowed except for what is explicitly prohibited.” The orders of the Health Officer forbade everything but what was specifically permitted. It is therefore crucial to determine the constitutionality of these orders by the scope of those exceptions. There was however no rhyme or reason for these exceptions.

One could leave one’s home for activities like bicycling or golfing but no shooting at outdoors gun ranges. The delivery of “household products” or any ammunition was exempted. “Hardware shops” were exempted. However, it is unclear if hardware included firearms and ammunition. Subsequent emendations to the orders allowed people to shop in person for cars and bicycles, and to take possession of firearms previously purchased and paid for….There is no evidence whatsoever in the record to show why the particular inclusions and exceptions relating to firearms, ammunition, and shooting ranges reasonably fit the purpose of slowing the spread of the COVID-19 virus.

VanDyke claims that Ventura County’s order would fail to pass even “intermediate scrutiny” due to the obvious illogic. This requires a reasonable fit between an challenged law and a government goal. Kleinfeld also agrees and says this is sufficient to resolve the issue. Kleinfeld writes that “we don’t have to ask whether strict scrutiny is applicable, and so I would not.” As the majority agrees with him, strict scrutiny is appropriate. However, we shouldn’t make any more laws than necessary in order to resolve the case.

VanDyke also wrote a unique concurring opinion where he believes that the 9th Circuit might agree. en banc Reexamine the case to reverse panel’s decision. AlwaysWhat happens when the circuit’s three-judge panel affirms the Second Amendment? He claims that the circuit is able to uphold all gun regulations because of our Second Amendment framework, which is extremely flexible and basically equates with rational basis review.

VanDyke says that no firearm-related ban and regulation has ever failed our circuit’s Second Amendment Review. “That review is effectively non-standard and imposes absolutely no burden on government,” VanDyke adds. “It struck me that I could demonstrate the former while supporting my hardworking coworkers with the former.” This 12-page comedy shows how the 9th Circuit handles Second Amendment cases.

According to the appeals court, a “two-step approach” is used that appears to be careful but still achieves the same results. VanDyke states that step 1 is where the appeals court considers whether the challenged law affects conduct subject to the Second Amendment. This involves examining the historical understanding of the right.

VanDyke states that the historical record does not provide much insight. “The parties did not brief the historical contours of regulations like these, and for good reason,”  he writes in his mock opinion. COVID-19 presents a unique set of challenges that are complex and difficult to fit into 18th and 19th century understandings and practices. So, instead of making decisions, we choose the “judicious” and “well-trodden course”, which assumes that regulation is a burden on conduct covered by the Second Amendment.

Based on this assumption, the next step will be to decide what level of scrutiny we should apply. We can’t deny that the Orders were imposed. SevereVanDyke satirizes the fact that there is a burden placed on any person’s ability of exercising their Second Amendment rights. “The Orders Only TemporarilyThe delay in the sale and use at firing ranges of firearms is far from the total and permanent ban on handguns. [District of Columbia v. Heller]. We also have upheld regulations by the government that temporarily delay an individual from obtaining firearms.

VanDyke refers to the 9th Circuit’s 2016 decision. Silvester v. HarrisCalifornia’s 10-day wait period for handgun possession was not extended by this decision. He argues in the majority that Ventura County’s 48-day ban was a more significant burden than the 10 day delay. Silvester. He is suggesting, however that his 9th Circuit colleagues would dismiss this distinction as irrelevant.

Ventura County’s orders do not “severely burden any Second Amendment rights implicating the core” of the Second Amendment, VanDyke states, trying to make a good impression on his coworkers, that “intermediate scrutiny may be appropriate.” The State has to prove that regulations “promote a substantial public interest that is less effective without them.”

Are the regulations of the county able to pass that test? VanDyke already stated that they cannot, but he does offer some guidelines to help. en banc panel to disagree:

By preventing customers and employees from interfacing indoors in the COVID-19 epidemic, the Orders clearly support the county’s desire to slow down the spread. Ventura County, according to plaintiffs, failed to comply with this standard as it didn’t provide any evidence linking the spread of COVID-19 firearm retailers and firing ranges. But this…places too great a burden on the county. Localities “must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems”…and this is even more true when faced with a global pandemic. Especially in the beginning days of the COVID-19 pandemic, the type of hard evidence Plaintiffs demand was simply not available, or at a minimum, rapidly evolving….

These Orders have a very clear logic. They limit any interaction that might facilitate COVID-19’s spread. These Orders reflect the scientific understanding at that time of COVID-19. They also require social distancing, and close nonessential companies. And this court has repeatedly allowed common sense to undergird a government’s evidence when justifying a regulation in the Second Amendment context….

Ventura County, like every other locality in America, had to quickly respond to an unprecedented pandemic. The death toll continued to climb and the county closed its firearm shops and firing ranges temporarily. However, it gradually eased and eventually removed those restrictions as the pandemic permitted. Plaintiffs may disagree with Ventura County’s decisions, but it is not our job—now with the benefit of hindsight—to dictate what Orders we would have found best. The “unelected federal judiciary,” which is lacking the expertise, background and competence to evaluate public health, should not second-guess local officials. It does not have the authority to hold them accountable to the people.

VanDyke also takes a swipe at his coworkers in the footnotes. “We refer to strict scrutiny as a theoretical matter—a thought experiment, really,” says one. Our court never applied strict scrutiny to real-life gun regulations. A footnote further suggests that the 9th Circuit only relies upon historical evidence when it’s helpful in upholding gun regulations.

VanDyke, in short, predicts that his colleagues will reach a foreordained conclusion that fits their policy preferences by combining excessive deference to the government’s public health judgments with a blithe disregard for Second Amendment rights—tendencies the 9th Circuit has displayed repeatedly in cases involving both COVID-19 restrictions and gun control. VanDyke is already doing the hard work required to get that result. The appeals court doesn’t need to make much effort.

VanDyke states that he has written “an alternative draft opinion” which will allow him to apply the test more in the court’s favor. “That way, I can show how simple it is to come to any conclusion within our existing framework and give the majority our court a head start on calling the case en banc. This is a win/win.
everyone.” His concurring opinion is concluded with the words “You are welcome.”