For 48 days in the spring of 2020, Ventura County, California, effectively prohibited the purchase of firearms or ammunition. It also barred people who already owned firearms from visiting gun ranges to hone their skills and prevented them from taking the steps necessary to obtain carry permits, which are legally required in California to exercise the right to bear arms outside the home. The county did all of this in the name of controlling COVID-19, although it simultaneously allowed many other activities that posed similar or greater risks of virus transmission.
Yesterday a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled that Ventura County's decision to ban a wide range of firearm-related activities for a month and a half violated the Second Amendment. Applying essentially the same analysis in another case decided yesterday, the same panel ruled that Los Angeles County likewise violated the Second Amendment when it shut down gun stores for 11 days early in the pandemic.
The right to keep and bear arms, Judge Lawrence VanDyke observes in McDougall v. 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."
The 9th Circuit panel overruled U.S. District Judge Consuelo Marshall, who in 2020 dismissed the challenge to Ventura County's anti-gun pandemic policy, rejecting the constitutional claims made by individual residents, retailers, ranges, and gun rights groups. Marshall deemed the county's policy a valid exercise of public health powers that was perfectly consistent with the Second Amendment.
This case therefore illustrates not only the arbitrariness of COVID-19 lockdowns but also the willingness of some courts to accept public health as an excuse for violating clearly established constitutional rights. It also illustrates judicial resistance to treating the rights guaranteed by the Second Amendment with the same respect as other constitutional rights. VanDyke mocks both of those tendencies in a slyly satirical "alternative draft opinion" that he suggests his 9th Circuit colleagues can use when they overturn the panel's decision, an outcome he views as inevitable.
Marshall's decision relied heavily on Jacobson v. Massachusetts, a 1905 decision in which the Supreme Court upheld a local regulation, authorized by state law, that imposed a $5 fine on Cambridge residents who refused to be vaccinated against smallpox. "Under the Jacobson framework," Marshall wrote, "judicial review of constitutional challenges to emergency measures taken by the state during a public health crisis is narrow."
Yet the Jacobson Court, while rejecting a 14th Amendment challenge to Cambridge's vaccine mandate, acknowledged that judicial intervention could be appropriate when state or local governments exercise their public health powers in "an arbitrary, unreasonable manner" or in a way that goes "far beyond what was reasonably required for the safety of the public." When "a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law," Justice John Marshall Harlan said in the majority opinion, "it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."
Furthermore, the Court in Jacobson applied what amounted to a "rational basis" test, a highly deferential standard that the Court subsequently said is inappropriate in cases involving specifically enumerated constitutional rights. "In the intervening century since Jacobson, the Supreme Court has repeatedly determined that some level of heightened scrutiny applies when evaluating laws implicating specific, enumerated constitutional rights," VanDyke notes. "Given that Jacobson does not concern a specific, constitutionally enumerated right and essentially applied rational basis review, Jacobson does not apply."
In this case, VanDyke concludes, the appropriate standard is "strict scrutiny," which requires that a law be "narrowly tailored" to further a "compelling government interest." That standard applies, he says, because Ventura County's regulations were so sweeping that they effectively made it impossible for people who did not already own guns to exercise their Second Amendment rights. They also prevented gun owners from visiting ranges or carrying firearms for self-defense if they did not already have carry permits.
Under California law, all firearm and ammunition sales have to be completed in person through a federally licensed dealer, either as the vendor or as the intermediary who conducts the state-required background check. So on March 20, 2020, when Ventura County decreed that all "nonessential" businesses, including gun stores, had to close, it was cutting off all legal access to firearms and ammunition. Because the lockdown covered gun ranges as well, it also meant that gun owners could not complete the training required for a carry permit, which includes "live-fire shooting exercises on a firing range."
That situation continued until May 7, when the county allowed "nonessential" businesses to reopen under certain conditions. Since California requires people to wait 10 days before taking possession of newly purchased firearms, that 48-day ban on sales effectively forced would-be buyers to wait two months before they could obtain guns.
"The acute need for Second Amendment rights during temporary crises was well-understood by our Founders," VanDyke writes. "Modern society agrees, as firearm and ammunition sales have soared during the 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."
Were the county's orders "narrowly tailored" to further the "compelling government interest" of reducing COVID-19 transmission? The county's sole justification was that "social isolation is considered useful as a tool to control the spread of pandemic viral infections." But that did not explain why gun stores had to close, even for sales by appointment or curbside service, while many other businesses were allowed to remain open.
"Appellees omit any evidence or argumentation suggesting that the closure of gun shops, ammunition shops, and firing ranges stems the spread of COVID any more than the closure of bike shops, hardware stores, and golfing ranges," VanDyke writes. He notes that the county's "carte-blanche rationale," which "has nothing to do with the actual fundamental right at issue," is "riddled with exemptions and 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.'" If the county were right that its distinctions are not subject to judicial review, he says, it "could order the closure of Mexican restaurants but make an exception for French restaurants, because the arbitrariness of that distinction would not matter any more than the distinction between bicycling and shooting at outdoor gun ranges."
Ventura County's ban on firearm sales continued even after the U.S. Department of Homeland Security deemed gun dealers and shooting ranges part of the nation's "essential critical infrastructure" on March 29, 2020. California Gov. Gavin Newsom's March 19 order imposing a statewide lockdown had specifically exempted "federal critical infrastructure sectors."
In a concurring opinion, Judge Andrew Kleinfeld emphasizes that Ventura County failed to offer any public health justification for the distinctions it drew. "Generally in the Anglo-American tradition, everything is permitted except what is expressly prohibited," he notes. "The Health Officer's orders instead prohibited everything except what they expressly permitted. The scope of the exceptions is thus critical to the orders' constitutionality." Yet there was no apparent rhyme or reason to those exceptions:
The exceptions included leaving one's residence for outdoor activities such as bicycling and later golfing, but not shooting at outdoor gun ranges. Delivery of any "household consumer products" was excepted, but not delivery, even at the door of a licensed dealer, of guns or ammunition. "Hardware stores" were excepted, but apparently not if the hardware consisted of firearms or 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.
Given the blatant illogic of Ventura County's orders, VanDyke says, they would not pass muster even under "intermediate scrutiny," which requires a "reasonable fit" between a challenged law and an "important" or "substantial" government goal. Kleinfeld agrees, and he says that point is enough to settle the matter. "We need not reach the question whether strict scrutiny applies, so I would not," he writes. "While strict scrutiny may be appropriate, as the majority concludes, nevertheless we should not make more law than is necessary to decide the case."
VanDyke also wrote an unusual concurring opinion in which he predicts that the 9th Circuit will agree to en banc review of the case and reverse the panel's decision, because "this is always what happens when a three-judge panel upholds the Second Amendment in this circuit." He complains that "our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review."
Since "no firearm-related ban or regulation ever ultimately fails our circuit's Second Amendment review" and "that review is effectively standardless and imposes no burden on the government," VanDyke says, "it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former." What follows is a 12-page satire of how the 9th Circuit tends to handle Second Amendment cases.
The appeals court notionally applies a "two-step framework" that gives the appearance of careful consideration but always reaches the same result. "At step one," VanDyke notes, "our court looks to see if the challenged law burdens conduct protected by the Second Amendment by examining the 'historical understanding of the scope of the right.'"
Unfortunately, VanDyke says, the historical record is not very illuminating. "The parties did not brief the historical contours of regulations like these, and for good reason," he writes in his mock opinion. "The complexity and novelty of the challenges raised by COVID-19 are not easily mapped onto 18th or 19th century practices and understandings. Therefore, we elect to follow the 'well trodden and "judicious course"' of assuming, rather than deciding, that the regulation at hand burdens conduct protected by the Second Amendment."
The next step is deciding what level of scrutiny to apply based on that assumption. "We can't say the Orders imposed a severe burden on anyone's ability to exercise their Second Amendment rights," VanDyke says in his satire. "The Orders only temporarily delayed the sale of firearms and use of firearms at firing ranges, which is a far cry from the complete and permanent ban of handguns as invalidated in [District of Columbia v. Heller]. Moreover, we have already upheld government regulations that result in the temporary delay of an individual's ability to take possession of firearms under intermediate scrutiny."
VanDyke is referring to the 9th Circuit's 2016 decision in Silvester v. Harris, which upheld California's 10-day waiting period for gun buyers. In the majority opinion, he argues that Ventura County's 48-day ban imposed a much more substantial burden than the 10-day delay upheld in Silvester. But here he is suggesting that most of his 9th Circuit colleagues will dismiss that distinction as unimportant.
Since Ventura County's orders "do not severely burden any Second Amendment right implicating the core of the Second Amendment," VanDyke says, doing his best impression of his colleagues, "intermediate scrutiny is appropriate." That means "the State is required to show only that the regulation 'promotes a substantial government interest that would be achieved less effectively absent the regulation.'"
Can the county's regulations meet that test? VanDyke has already said they can't, but he offers some model language that would enable the 9th Circuit to disagree after granting en banc review:
The Orders, in preventing employees and customers from interacting indoors during the COVID-19 pandemic, clearly promote the county's interest in slowing the spread of COVID-19 more than if no such Orders were issued. Plaintiffs argue that Ventura County failed to meet this standard because it did not offer any evidence connecting the spread of COVID-19 to firearm retailers or 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….
There is a clear and straightforward logic underlying the Orders: limit to the extent possible any interactions that could facilitate the spread of COVID-19. These Orders reflected the then-current scientific understanding of COVID-19, as reflected in the social distancing requirements and the closing of nonessential businesses. And this court has repeatedly allowed common sense to undergird a government's evidence when justifying a regulation in the Second Amendment context….
Like every locality in the United States, Ventura County was forced to rapidly respond to an unprecedented pandemic. As the death toll for its citizens continued to rise, the county temporarily closed firearm stores and firing ranges, but lessened, and then eventually withdrew, those restrictions when the pandemic allowed. 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. Local officials "should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people."
VanDyke takes additional swipes at his colleagues in the footnotes. "We refer to strict scrutiny as a theoretical matter—a thought experiment, really," says one. "Our court has never ultimately applied strict scrutiny to any real-life gun regulation." Another footnote suggests that the 9th Circuit relies on historical evidence only when it is helpful in upholding a gun regulation.
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. And since VanDyke already has done the work necessary to achieve that result, the appeals court will not have to put much effort into it.
By writing "an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court," VanDyke says, "I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win for
everyone." He concludes his concurring opinion with two words: "You're welcome."
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