In one opinion published last week, 9th Circuit Judge Lawrence VanDyke said Ventura County, California, violated the Second Amendment when it shut down gun stores early in the COVID-19 pandemic. In another opinion the same day, VanDyke said the county's policy was perfectly consistent with the constitutional right to keep and bear arms.
That second, tongue-in-cheek opinion was meant to illustrate the disrespect that the 9th Circuit and other federal appeals courts have shown for the Second Amendment since 2008, when the Supreme Court explicitly recognized that the provision guarantees an individual right to armed self-defense. The Court may finally rectify that situation this term when it rules on the constitutionality of a New York law that gives local authorities wide discretion to decide who may carry guns in public.
For 48 days in 2020, Ventura County effectively prohibited the purchase of firearms or ammunition by ordering the closure of gun dealers, along with other businesses it deemed "nonessential." It also barred people who already owned firearms from visiting gun ranges to hone their skills or complete the training required to obtain carry permits.
The county did all that in the name of controlling COVID-19, although it simultaneously allowed many other activities that posed similar or greater risks of virus transmission. While other retailers continued to operate, gun sales were prohibited, even by appointment or through curbside service; while outdoor activities such as biking and golfing were allowed, practice at outdoor gun ranges was banned.
Given such arbitrary distinctions, VanDyke concluded in the majority opinion for a three-judge panel, Ventura County's policy plainly did not pass muster under "strict scrutiny," which requires that a law be "narrowly tailored" to further a "compelling government interest." Nor could the policy survive the less demanding "intermediate scrutiny," which requires a "reasonable fit" between a law and an "important" or "substantial" government goal.
The two other panel members agreed with VanDyke that Ventura County's suspension of Second Amendment rights was unconstitutional. But VanDyke predicted that most of his colleagues on the 9th Circuit would reach a different conclusion after agreeing to review the decision.
"Our circuit has ruled on dozens of Second Amendment cases," VanDyke noted, "and without fail has ultimately blessed every gun regulation challenged, so we shouldn't expect anything less here." Those decisions include several in which the 9th Circuit overruled three-judge panels on issues such as the right to bear arms in public and the right to own magazines that hold more than 10 rounds.
Since VanDyke thought it was inevitable that the 9th Circuit would eventually uphold Ventura County's shutdown of gun stores and ranges, he offered a 12-page "alternative draft opinion" to help achieve that foreordained result. 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.
As VanDyke sees it, the 9th Circuit creates the illusion of careful consideration by using a "two-step framework" that first examines the historical scope of the Second Amendment and then settles on a standard of review. This approach somehow always leads the court to apply intermediate scrutiny in a way that amounts to a "rational basis" test, a highly deferential standard that the Supreme Court has said is inappropriate in cases dealing with specifically enumerated constitutional rights.
Justice Clarence Thomas made the same observation in 2018, when the Court declined to review a 9th Circuit decision upholding California's 10-day waiting period for gun buyers. Other justices have joined Thomas in complaining that lower courts routinely treat the Second Amendment with less respect than other constitutional guarantees.
After nearly a decade and a half of this subversion, the challenge to New York's carry permit law gives the justices a chance to provide courts like the 9th Circuit with some much-needed guidance. A ruling upholding the right to bear arms would help protect what Thomas aptly calls "this Court's constitutional orphan."
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