The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, the Ninth Circuit heard oral argument in McDougall v. County of Ventura, California. This case presented a challenge to the County's COVID-19 restrictions on firearm retailers.
Here, the government argued that Jacobson, and not the traditional tiers of scrutiny, govern:
Thus, a court's review of temporary measures taken during such an emergency is not based on traditional constitutional review, but instead looks to whether the challenged action has a real or substantial relation to the crisis and is not "beyond all question a plain, palpable invasion" of clearly protected rights. (Jacobson, supra, 197 U.S. at p. 31.)
The government claimed that even after Roman Catholic Diocese, Jacobson is still the correct framework:
Plaintiffs claim that Jacobson was essentially overruled (or at least severely restricted) by the Supreme Court's ruling in Roman Catholic Diocese. Contrary to Plaintiffs' position, the Supreme Court authority has made clear that the Jacobson Framework is still applicable to this case. Despite having the opportunity to do so, the Supreme Court's per curium opinion in Roman Catholic Diocese neither minimized nor overturned Jacobson. In fact, it did not cite it at all. Additionally, recent case law affirms that Jacobson is still good law. Several circuit courts have applied the Jacobson framework to COVID-19 related challenges. Thus, it is clear that the Jacobson framework is still the proper lens through which to analyze Plaintiffs' Second Amendment claims. As such, the District Court did not err in applying Jacobson to this case.
And the government argued that the orders easily survive scrutiny under Jacobson.
Under Jacobson, the Health Order is subject to "judicial deference and not subject to traditional constitutional scrutiny." (Gish v. Newsom (C.D. Cal. April 23, 2020, No. EDCV 20-755 JGB (KKx)) 2020 WL 1979970 at * 4.) In other words, the Health Order is lawful so long as it bears a "real or substantial relation" to the public health crisis and are not, "beyond all question, a plain, palpable invasion of
My article forthcoming in the Texas Review of Law & Politics, The Essential Second Amendment, explains why this argument is so flawed. Jacobson should have no bearing on the Second Amendment, or any other enumerated right. The courts need to resolve this issue.