The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's decision in Brandy v. Villanueva held that L.A. County and the City of L.A. were entitled to include gun shops as "non-essential" businesses that could be closed because of the coronavirus emergency. (Sheriff Villanueva had announced "that firearms and ammunition retailers constitute essential businesses under the County Order and thus may remain open." But the court held that "this change in policy is not reflected in changes in ordinances or regulations, but rather came from Sheriff Villanueva's public announcement," so the court could review the Order as it had been written, before the Sheriff's exclusion of gun shops.)
Here was the court's analysis:
Assuming without deciding that the County and City Orders burden conduct protected by the Second Amendment by "affecting the ability of law-abiding citizens to possess [a handgun]," Fyock v. Sunnyvale, 779 F.3d 991, 999 (9th Cir. 2015), intermediate scrutiny is warranted because the County and City Orders are "simply not as sweeping as the complete handgun ban at issue in [District of Columbia v. Heller, 554 U.S. 570 (2008).]" Id.; see also [McDougall v. County of Ventura (C.D. Cal. Apr. 1, 2020)] (holding that the City Order is subject to intermediate scrutiny).
In applying intermediate scrutiny to the County and City Orders, the Court must consider (1) whether the government's stated objective is significant, substantial, or important, and (2) whether there is a reasonable fit between the challenged regulation and the asserted objective. See Chovan, 735 F.3d at 1139. The City's and County's stated objective—reducing the spread of COVID-19, a highly dangerous and infectious disease—undoubtedly constitutes an important government objective. Moreover, because this disease spreads where "[a]n infected person coughs, sneezes, or otherwise expels aerosolized droplets containing the virus," the closure of non-essential businesses, including firearms and ammunition retailers, reasonably fits the City's and County's stated objectives of reducing the spread of this disease. Accordingly, Plaintiffs fail to demonstrate a likelihood of success on the merits of the Second Amendment claim against the County and City Orders.
McDougall similarly reasoned,
Although the County Order may implicate the Second Amendment by impacting "the ability of law-abiding citizens to possess the 'quintessential self-defense weapon'—the handgun," Fyock, 779 F.3d at 999 (quoting District of Columbia v. Heller, 554 U.S. 570, 629 (2008), this Court finds that intermediate scrutiny is appropriate because the County Order "is simply not as sweeping as the complete handgun ban at issue in Heller." Id. The County Order does not specifically target handgun ownership, does not prohibit the ownership of a handgun outright, and is temporary. Therefore, the burden of the County Order on the Second Amendment, if any, is not substantial, so intermediate scrutiny is appropriate.
I think both courts erred here, because they understated how much the orders (as written, without the exception recognizes by the Sheriff) interferes with the right to keep and bear arms.
An order shutting down gun stores completely and indefinitely blocks L.A. County residents who don't already have a gun from acquiring a gun (especially since they can't even leave the County, given the state stay-at-home order). That's a much more sweeping restriction than the large-capacity magazine ban in Fyock. And while it's somewhat less sweeping than the D.C. handgun ban, in that it will presumably be lifted at some unknowable future time (though we hope it won't be long), it's even more sweeping because it blocks buying even rifles and shotguns, and not just handguns, as in D.C.
Any restriction that basically makes it impossible for millions of L.A. residents (those who don't already have a gun) from exercising their constitutional right can't be viewed as a mild constraint that's subject merely to intermediate scrutiny. It should be judged at least under strict scrutiny, and the government should have to show that less restrictive means (such as the protective measures being used at supermarkets, liquor stores, and other places) can't lower the risk to an acceptable level. And I think they can indeed so lower the risk, especially since the transactions can be quick (quicker than in supermarkets), and done with a minimum of physical interaction between the buyer and the seller.
For more on how I would analyze these questions (as to guns, abortions, and other matters), see this post.