2nd Amendment

A Federal Judge's Satirical Opinion Highlights Disrespect for the Second Amendment

After more than a decade of subversion, the Supreme Court has a chance to rectify this situation.


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."

© Copyright 2022 by Creators Syndicate Inc.

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26 responses to “A Federal Judge's Satirical Opinion Highlights Disrespect for the Second Amendment

  1. For good measure he should include the incorrect definition of the phrase well regulated, a sop to the Blue Checks and pajama class.

  2. Our leaders fear the people. No surprise the way the act.

    1. California leads Texas in asset-forfeiture looting. Small wonder its judges politicians and cop union puppets know just how shocked and surprised to act when one of their tools gets beaten to the draw in an asset-forfeiture shakedown. Holdupmen and foreign aggressors fear the Second Amendment for similar reasons.

      1. Completely off topic.

  3. "After more than a decade of subversion, the Supreme Court has a chance to rectify this situation."

    They had that chance a decade ago, too. They just couldn't be bothered.

    1. Given the way they've labored to get around or flat out ignore any pro-2A ruling I don't think anything would get them to properly recognize the 2A. There would need to be real, personal consequences for being overturned on cases with such a wide divergence from required standards of scrutiny.

      1. Wouldn't it be nice if a judge, overruled by a higher court, actually faced some consequences?
        The pillory comes to mind.

  4. In related news, the city of San Jose, CA just passed the first measure in the nation to require every gun owner in the city to carry liability insurance.


    1. I'm pretty sure that's racist.

    2. Can I just roll it into the liability insurance I already carry for 'Thunder' and 'Lightning'?

  5. Ok, the 'faux-opinion' by Judge VanDyke was spot-on, funny AF, well-reasoned....and completely inappropriate. Judge VanDyke threw down the 'intellectual gauntlet' to his uber-lib Ninth circuit colleagues. It remains to be seen if he has the 'intellectual heft' to back up his audacious faux-opinion.

    All of that said, I think that is why I enjoyed reading it. It was a hilarious intellectual skewering. I see many more years of hilarity ahead.

  6. Someone is not getting invited to the next 9th Circuit vegetarian luncheon.

    1. Yeah, the vege-matics are all gonna have a case of indigestion. 🙂

  7. Seeing as the "right of self defense" interpretation of the 2nd amendment was "rammed through" in two 5-4 decisions, arguably under the petulant influence of Justice Scalia, smarting from the Court's earlier approval of the "so-called homosexual agenda", perhaps even the Court's most recent appointees feel that these decisions, like Rowe v. Wade, should be honored more in the breach than the observance.

    1. Just what do you people think the 2A protects? What is the point of a militia if not to exercise the right to self-defense?

      This is batty, like an interpretation that the 1A protects my right to use a printing press rather than my right to report on what happens where I live absent government interference.

      1. Agree. Thank you

    2. Roe v Wade was copied from the 1972 Libertarian platform in response to 4000 spoiler votes triggering 01 electoral vote. Today the libertarian party can garner 4 million presidential votes and three times as many down-ballot votes despite Kleptocracy miscounting. Female population is also rising out of proportion while susceptibility to televangelist brainwashing is falling. Mystics infiltrating the LP to make the platform alienate women are the biggest threat to individual women's rights.

      1. Libertarian moment and we didn't even realize it until the genius Hank Phillips showed us the error of our ways.

  8. Someone else with a CCW telling others not to have one.

  9. Most of the looter enterprise to nullify of repeal the Second Amendment is a reaction to Republican mystical bigot prohibitionists sending gullible goons to kick in doors and flag down vehicles for no reason other than to coerce by armed robbery. When similar tactics were used against Beelzebub's Beer and Wicked Wine the result was a 700% increase in communist membership amid the ruins of a once-vibrant economy.

  10. Second Amendment disrespect? You wanna see amendment disrespect, then check out Tenth Amendment disrespect.

    1. Almost all courts, from the Supremes on down, think the Bill of Rights only had eight entries.
      And the Supremacy clause of Article 6 doesn't exist.

  11. A Trump appointee; good to see those 200+ FEDSOC judges are coming through.

  12. Read the judges comment earlier today. Sad but true, which is perhaps why the 9th Circuit is also known as the 9th Circus Court.

  13. One cannot easily take away freedom of speech and association if the citizens are armed

  14. As far as I have seen over the last few decades, the government has always demonstrated that it has a "compelling government interest" in disarming the public (LOL).

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