9th Circuit Judge Lawrence VanDyke published an opinion last week stating that Ventura County in California violated the Second Amendment by closing down guns stores during the COVID-19 pandemic. VanDyke also stated that the county’s policies were in compliance with the Constitution right to keep and bear weapons.
This second opinion, which was tongue in cheek, was intended to show the lack of respect that federal appels courts and the 9th Circuit have shown for The Second Amendment since 2008. When the Supreme Court specifically recognized the provision as guaranteeing an individual’s right to self-defense, the Court made clear that it is not intended to be a criticism. This term, the Court could finally correct that situation by ruling on whether a New York law gives local authorities broad discretion over who can carry guns in public.
Ventura County, California, effectively banned firearms and ammunition purchases for 48 days in 2020. The county also ordered the closing of all gun dealers along with any other businesses it considered “necessary.” Ventura County also banned people with firearms from visiting gun ranges for training or skills improvement.
All this was done in order to control COVID-19. However, it also allowed other activities which posed greater or similar risks of spreading the virus. Other retailers were still allowed to sell guns, but gun sales were banned, regardless of whether they were done by curbside service or appointment. Outdoor activities like biking and golfing are permitted, but practice on outdoor ranges is prohibited.
VanDyke stated that Ventura County’s policy was not “strictly scrutinized.” This requires that laws be “narrowly tailored to serve a compelling government interest. The policy could not withstand the more demanding “intermediate scrutiny”, which demands a “reasonable match” between the law and a government goal.
VanDyke’s decision to suspend Ventura County’s Second Amendment rights was supported by two of the other members on his panel. VanDyke believed that his 9th Circuit colleagues would come to a different conclusion once they had agreed to reconsider the decision.
VanDyke stated that “our circuit has ruled in dozens of Second Amendment cases without fail.” Eventually blessed EverywhereGun regulation has been challenged. We should expect nothing less. The 9th Circuit ruled in favor of three judges on matters such as right to bear arms and right to possess magazines that contain more than 10 bullets.
VanDyke believed it was certain that the 9th Circuit would uphold Ventura County’s ban on gun ranges and stores. He offered an alternative draft opinion of 12 pages to assist in that outcome. His satire combines excessive deference to public health powers with blithe disregard for the right to arms—tendencies that the 9th Circuit has repeatedly displayed in previous cases.
VanDyke believes that the 9th Circuit gives the appearance of thoughtful consideration using a two-step approach. It first looks at the history of the Second Amendment, then decides upon a standard for review. The court uses this approach to apply intermediate scrutiny, which amounts to a “rational base” test. This is a very deferential standard that has been criticized by the Supreme Court in respect to cases involving constitutional rights specifically enumerated.
Justice Clarence Thomas shared the same observations in 2018 when the Court decided not to review the 9th Circuit’s decision that upheld California’s 10-day wait period for gun buyers. Thomas’ complaint was shared by other justices who complained that lower courts treated the Second Amendment in a different way to all constitutional guarantees.
The justices have a chance now to give courts such as the 9th Circuit some guidance after nearly a decade of subversion. Thomas describes the Court as “this Court’s constitutional orphan”, and a decision upholding arms rights would be a step in protecting it.
© Copyright 2022 by Creators Syndicate Inc.