District Court OK's Closing Gun Shops as "Non-Essential"

... but only by wrongly downplaying, I think, the degree to which the law interferes with Second Amendment rights.

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.

Comments

[Greg Revera]

If you can set up reasonable protocols to allow people to exercise non constitutionally protected activities such as going to the bank and gas stations than such protocols should exist for constitutionally protected activities. There are many legitimate and “important government objectives” and public health is certainly one of them but there is no distinction between almost any respiratory virus and the finding that “[COVID-19] spreads where ‘[a]n infected person coughs, sneezes, or otherwise expels aerosolized droplets containing the virus’.” -- they all do. You are correct, this opinion misses the mark because of applying intermediate scrutiny. It is a complete and indefinite ban. Heightened scrutiny applies and the government should have had to show that no less restrictive alternative exists --- such as whatever Los Angeles is doing for banks and gas stations.

[BadLib]

As well, it would probably be reasonable for the government to place somewhat more restrictive requirements on gun shops since they are not something that typically has the traffic or frequency of visit that a market or gas station does.

For example, it would probably be practical to require that customers make appointments to patronize a gun shop to limit the number of people waiting in line outside but such a system would be unlikely to be workable for a Walmart. Such a requirement would address the government's legitimate concerns about people congregating and shedding SARS-CoV-2 onto each other even better than the rules they have imposed on gas stations and markets.

(If such appointments were necessary, likely anti-gun people would immediately flood the gun shops with appointment requests and then just fail to show up in order to deprive legitimate customers of access. A gun shop could counter this, should it happen, by imposing a modest non-refundable fee via CC for an appointment. If the person showed up at the appointed time, the shop could issue them a non-transferable "shop credit" voucher for the amount of the fee which expires in, say, three months.)

[Rev. Arthur L. Kirkland]

" there is no distinction between almost any respiratory virus and the finding that “[COVID-19] spreads where ‘[a]n infected person coughs, sneezes, or otherwise expels aerosolized droplets containing the virus’.” — "

You can't identify a distinction between the virus associated with this pandemic and other viruses that cause respiratory problems?

That 'no distinction' assertion does not help your argument.

[James Pollock]

"If you can set up reasonable protocols to allow people to exercise non constitutionally protected activities such as going to the bank and gas stations than such protocols should exist for constitutionally protected activities."

Assuming, of course, that there is a Constitutional right to sell firearms. I'm not saying there isn't, but it isn't enumerated.

[Armchair Lawyer]

Agreed.

Here's a different question though. As I understand it, many states and localities that had closed gun shops due to the Covid crisis reversed themselves, at least partially because they didn't want a court decision on the record saying that gun sales must be legal.

Despite that, a district court in California ruled, saying the state could ban all gun sales. That puts a court decision on the record, saying the government can effectively ban all gun sales. Can that decision be appealed? Or will it simply be declared as moot by a Circuit court, based on the sheriff's order? Or will it be declared moot by either the end of the crisis, or if LA county formally changes the regulations?

[Stephen Lathrop]

Armchair, for a thoughtful response to another emergency rights violation, read Justice Jackson's dissent from Korematsu.

[Armchair Lawyer]

You mean this quote?

""A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle""
-- Justice Jackson

Yes, that's basically my fear here. A court opinion has now rationalized effectively ending all gun sales to the American Public. Moreover, I fear the 9th Circuit rather than reverse the decision, will simply call the case moot, and leave the district court decision on the record as standing.

[James Pollock]

"Yes, that’s basically my fear here. A court opinion has now rationalized effectively ending all gun sales to the American Public."
Because buying gun during a pandemic is the only way to possess one, this is serious.

[James Pollock]

"That puts a court decision on the record, saying the government can effectively ban all gun sales."

During a pandemic. You seem to have overlooked this tiny detail.

[Shandower]

What do you mean by:

"quicker than in supermarkets"

If we're talking about purchasing a firearm, then we're talking about someone filling out a Form 4473 (on site, as required) and waiting in the store for a NICS check, at the very least, which aren't exactly happening quickly these days. In states with waiting periods, local BGCs, and other administrative hoops there may not be the waiting, but we're talking two trips now into what are generally very small stores, so now you're either in an enclosed space or waiting in line.

Whether you agree with these various infringements or not, it's a stretch to compare it to a trip to the grocery store where I can put food on one end of a belt, wave my contactless payment and pick up a bag at the other end about as quickly as the belt moves. Especially these days, when there's few people in the store.

A more pointed argument would be that the alternative to keeping gun stores open would be to remove the necessity to give gun stores your in-person business in order to exercise your second amendment rights. The government closing gun stores is only a problem because the government makes you use gun stores to buy guns.

[Armchair Lawyer]

Bwah?

Filling out the form takes maybe 5 minutes. For the NICS E-Check, the wait and processing time averaged 107.5 seconds.

In the meantime, a full grocery run takes a solid hour, and the grocery stores are more full than I've ever seen them, since no one is dining out anymore. I've stood in line waiting to check out at a grocery store more than 5-10 minutes. Check out takes another 5 minutes at least. And I'm not buying a gun once a week (I am grocery shopping once a week).

Now perhaps we should go to a system where the governor closes the grocery stores, and just drops off a few sanitized MREs at each house once a day?

[Henry]

"For the NICS E-Check, the wait and processing time averaged 107.5 seconds."

Tried it lately?

[Armchair Lawyer]

That's the public information.

https://www.fbi.gov/services/cjis/nics/about-nics

If it currently takes longer, well... Somehow I'm not sympathetic to the reasoning. Seems a bit too convenient. "We need to shut down the gun stores because the NICS clearance suddenly takes longer."

[Henry]

We're not stupid. That's why the law was written as "if the check takes too long, you get the gun anyway." Now we just need to overcome the "self-censorship" problem that BATF jackbootery has made dealers afraid to follow the law as written.

[James Pollock]

"no one is dining out anymore."

Then why are there so many damn cars in the drive-through lane?

[James Pollock]

MRE's don'e have eternal shelf life. They can and do go bad. So they cycle through the supply by giving some of them to enlisted people from time to time. I went to AF technical school on the same AFB where cooks were trained, and there was a Burger King right on the base. You could tell when the cook trainees were sent to the rest of the bse to start practicing their new trade because the chow lines were nonexistent but the BK was full.

[James Pollock]

"In the meantime, a full grocery run takes a solid hour"

Which is how long it took before the pandemic, except back then you could also buy toilet paper at the same time. It's time somebody gave the grocery stores some credit, they've been preparing their stores for operation during pandemic social-distancing for several years now. You don't even have to run your purchases past a checkout clerk any more.

[James Pollock]

" remove the necessity to give gun stores your in-person business in order to exercise your second amendment rights."

If you already own a gun, then closing a gun store has zero effect on your ability to possess a firearm. (Admittedly, it may affect your ability to effectively use it depending on your ammunition supply)
If you don't already own a firearm, this is because either you were legally prohibited from owning one or you made a voluntary choice not to own firearm.

[ReaderY]

Why didn’t the change in enforcement policy moot the case? Courts are not debating societies. The existence of case or controversy is not based on how legislatures choose to decorate their statute books. It is based on the existence of a genuine imminent probability that the plaintiff will be harmed as a result Of actual enforcement.

[James Pollock]

So, if the police arrest a gun retailer for failing to follow any law, that's a 2A violation?
That's a heck of a "get out of jail free" card.

[Brett Bellmore]

If the police arrest a gun dealer for failing to signal a left turn, not a 2nd amendment violation.

If they arrest him for selling a gun? Yeah, 2nd amendment violation.

It's not complicated: You can arrest a newspaper editor for assault and battery. You can't arrest him for publishing an editorial.

You don't get to enforce laws to shut down the exercise of civil liberties.

[James Pollock]

I'm sorry you're so dense that you missed the point. The finding described in this story says that closing the gun stores is a 2A violation because it interferes with hypothetical would-be buyers who can't obtain a weapon.
So, if you arrest a gun retailer for anything (including selling a gun unlawfully, such as, say, to a felon, but also for anything else) that's a 2A violation because his store is closed while he's being booked and making bail.
So if Mr. Gun Retailer goes on a rampage, shoots his neighbor and rapes the neighbor's wife. arresting him is a 2A violation because somebody, somewhere, has to drive to a different store to possess a firearm.

[James Pollock]

"If they arrest him for selling a gun? Yeah, 2nd amendment violation."

How about when they arrest him for not complying with a public healtth order?

It's not complicated, if ordering him to close his shop for social distancing is a 2A violation, then doing anything that keeps him from opening the shop is a 2A violation, even if what you do is totally unrelated to his shop.

They appear to be reading a Constitutional right to engage in firearm commerce into the document, and it just isn't there.

[James Pollock]

"You don’t get to enforce laws to shut down the exercise of civil liberties."

Sure you do, Each and every person convicted of a crime gets their freedom to exercise civil liberties curtailed. Typhoid Mary got her right to work as a cook taken away. Just because other people didn't want to get sick. Your right to travel on navigable waterways can be interfered with, in the form of inspections to make sure you aren't inadvertently transporting invasive species. Your right to walk down a public roadway can be removed just because you're blocking motor vehicle traffic. I remember a time when California blocked people from neighboring states from driving to SoCal because of Medflies.

[NM-Steve]

"We emphasize the narrow scope of our holding." Words often written, but less frequently followed. Cops will basically never admit that they see the driver prior to initiating the stop, and once the stop is initiated they can continue the stop even after seeing/recognizing that it isn't the 'expected' driver. So it's just another excuse to pull cars over (like the police don't have enough excuses as it is). Most judges are fine with that -- the cops aren't usually making these 'fishing' stops in THEIR neighborhoods.