Ventura County: Jacobson, and not "Traditional Constitutional Review" Governs Second Amendment Claims

The Ninth Circuit heard oral argument in a challenge to COVID restrictions on firearms.

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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 DioceseJacobson 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.

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  1. "The courts need to resolve this issue."

    The first rule of Josh Arguments (or tbf, a lot of legal arguments) is to invent an issue that doesn't exist and then complain that the court has not resolved it.

    1. So Jacobson being purported to be an exemption from the Constitution is not an "issue"?

      If that's not one then there are no issues b/c the Constitution is a dead letter.

      1. It appears from the Defendants´ brief that the district court opined that Jacobson was controlling, but also analyzed the plaintiffs´ Second Amendment claims under intermediate scrutiny in the event that Jacobson does not control. The Defendants´ brief relied upon Jacobson, but also addressed both intermediate and strict scrutiny under the Second Amendment.

        Funny that Professor Blackman failed to mention that.

        1. Funny that you're ignoring the government's claim in the first blockquote in Blackman's article. Are you admitting that it's claptrap?

          1. Not at all. I was pointing out what Professor Blackman did not mention, which casts his post in an entirely different light.

            Jacobson was a winning issue in the trial court -- of course the prevailing party is going to defend that rationale on appeal. It is not the only argument raised in the Appellee's brief.

            I am curious. Have you read the brief?

            1. So, if you're not agreeing that the government's claim that Jacobson replaces "traditional" (ie, real) Constitutional review is claptrap (which it is) you'll just have to endure Blackman's derision at at ludicrous claim, which is fully deserved.

              1. It´s not going to break your keyboard to give a responsive answer to a straightforward question. Have you read the Appellee´s brief?

                I think that Jacobson is relevant to this case, but not dispositive. There is a Second Amendment issue requiring intermediate scrutiny, which the district court analyzed and the government addressed in its appellate brief. It is misleading for Blackman not to have mentioned that.

    2. I'm aware of the disfavor of argument ad Hitlerium, but a facially valid exercise of explicit emergency powers is how Hitler ended the Weimar Republic.

      When declaring a Jacobsen "emergency" becomes a "legitmate" excuse for avoiding Constitutional analysys there's no limiting principle any more.

      1. In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

        1. In existential wartime SCOTUS has relaxed Constitutional scrutiny, but I am unware that it has explicitly admitted to doing so.

      2. I think you're onto something.
        https://www.sacbee.com/news/politics-government/capitol-alert/article242198781.html
        If they can use the Coronavirus to justify shutting down gun stores and banning protests at the state capitol, couldn't they also use it to justify shutting down newspapers? Arresting people who "spread misinformation" online (or in print)?
        What's the use of the Constitution if the government can stomp all over it any time it declares an "emergency"?

        1. Especially when they can declare almost anything an 'emergency'.

    3. The first rule of Josh Haters (or tbf, a lot of legal arguments) is to invent an issue that doesn’t exist and then complain that the court has not resolved it.

      1. Prof. Josh Blackman -- hero, oracle, and semi-deity among disaffected, obsolete conservatives; for everyone else, a loud yet little-noticed crank operating at the hard-right fringe of modern American legal thought and from a school ranked higher than precisely four schools (among 197) in the United States by US News and World Report.

  2. Looking at this though, I'm a little confused. I dont think it is fair to say that Roman overruled Jacobson, which for some reason is repeated ad nausem and makes no sense, how exactly does a single concurrence on a shadow docket case overrule 100 years of precedent but ... like, you wouldn't say Jacobson, no more free speech, right?

    1. The example that springs to mind is from Canada, where the priest who ordered out officers come to instruct him not to hold services in his church has been -- after an appearance on US TV that the court disapproved of --- ordered to make a court-ordered disclaimer about his opinions on COVID whenever he speaks in public, but, yes, the Jacobsen exemption from the Constitution is heading us in that direction.

      1. ...I will add that it is the GOVERNMENT that makes the claim that "Plaintiffs claim that Jacobson was essentially overruled (or at least severely restricted) by the Supreme Court's ruling in Roman Catholic Diocese." I wouldn't take their word for it that that is an accurate representation of what the plaintiffs said.

        As to your confusion... have you looked at Blackman's article, now a few years old, iirc, on Roman and Jacobsen? He linked to it in his last column on Jacobsen's current applications.

    2. I'm a bit confused by this argument.

      Are shadow docket decisions somehow less valid than normal decisions? Can an "old enough" previous merit decision not be overturned by a newer "shadow docket" decision?

  3. The government only quoted a district court opinion in support of the argument that "judicial deference and not subject to traditional constitutional scrutiny."

    there is no appellate court precedent stating this notion.

    1. What precedents are there for using a SCOTUS opinion to silo cases so they are not subject to real ("traditional") scrutiny?

  4. Judicial review violates Article I Section 1, so it is insurrection against the constitution. There is a mass delusion and cover in the scumbag, criminal, lawyer profession.

    The one time, judicial review could have saved and helped this country, in stopping the Democrat lockdowns, and quack tyrannical mandates, the courts failed to help our country, hundreds of times.

    We should get rid of this scumbag profession.

  5. My article forthcoming in the Texas Review of Law & Politics, The Essential Second Amendment, explains why this argument is so flawed.

    r/FoundTheAmerican

  6. I agree that Jacobson can be read as saying that in an emergency the government can do anything it wants.

    However, government does have a compelling interest in preventing plague, and some flexibility to implement its response.

    I think Ventura has to show that it’s rule is closely related to preventing COVID, under less deferential (i.e. skeptical) scrutiny. It definitely has to show that it isn’t simply using COVID as an opportunity to target gun owners.

    1. "However, government does have a compelling interest in preventing plague"

      Well, that's just too bad, because we, the people, have an ultra, hyper, excelsior compelling interest in requiring the government to obey the freaking Constitution.

      1. The Supreme Court has repeatedly held that the constitution isn’t a suicide pact.

        I’ve argued that “compelling interest” shouldn’t be extended to anythjng a majority of the Supreme Court happens to think important or feel really strongly about. Government does not have a compelling interest in subsidizing contraceptives, private discrimination, marijuana prohibition, etc. etc. etc. But it does have a compelling interest in a limited set of things that physically theeaten the existence of society as a whole.

        War is one. That’s why the draft is constitutional, and why people in the military give up a lot of rights, and more in time of war. But plague is another.

        1. When people say, "the Constitution isn't a suicide pact", what they typically mean is that it IS a suicide pact, and as such should be broken.

          The truth is, there's nothing suicidal about following the Constitution.

  7. A problem with this post is it doesn’t say nything about the nature of the restrictions or what the argument for contestingthem is. If Ventura is simply imposing mask-wearing, distancing, and other restrictions that have been upheld with respect to other businesses as part of generally applicable business restrictions, gun dealers probably don’t get any special exemption. If it is ordering gun dealers and only gun dealers to close, that’s a different story.

    1. Agree....more context is needed. We do not have the information on what was actually done.

    2. Well, you COULD follow the included links. For your convenience I repeat the first one here, leaving out the first 35 sec:
      https://www.youtube.com/watch?v=vr-VLBe4Tds&t=35s

    3. Well, you could follow the embeddded links. Here's the first one, modified to start with the plaintiff attorney's oral argument 35 seconds in: https://www.youtube.com/watch?v=vr-VLBe4Tds&t=35s

      1. ...and now I've watched it myself. Not a single judge on the 9th C. panel seemed to see any reason why bicycle shops should be open and gun shops closed and Ventura's atty was so eager to get off the stage that HE reminded the panel that his time had been exceeded. LOL! The only argument with any traction seemed to be that the ill-considered action had been promptly reversed when better national guidance came out.

    4. They shut down gun shops entirely. Coupled with California's existing laws, it made it impossible to acquire a firearm of any sorts.

      1. Well, not impossible, just impossible to get one legally. But that hasn't stopped anyone for decades.

        1. Let's presume for a second that if we're talking about when laws and executive orders make something impossible, we're talking about legally speaking....

  8. In thread after thread on this blog, the question of emergency powers gets ghosted in the comments. Tacit in practically every comment is the notion that there is no such thing as an existential emergency for the nation. Apparently, no one thinks unfettered rights for citizens ever come at the expense of reducing government power to cope with rare but extraordinary perilous occurrences. No one thinks that situations could occur that might put either the survival of millions of citizens, or the continuation of the nation in jeopardy.

    History teaches otherwise. Comments which ignore that history amount to arguments for legal precedents to cripple effective response when such emergency situations eventually arrive.

    1. There is absolutely no such thing as an "existential emergency for the nation" in progress, if by that you mean COVID. Whether open borders and a Constitution and electoral system in their death throes constitute such an emergency is a different matter.

      1. What about the precedents question?

    2. The question is not JUST emergency and what constitutes emergency. The question is also, does the govt intrusion on freedom address the emergency.
      Yoga classes can go forward, but worship service cannot.
      Bicycle retail stores are essential, Gun retail stores are not.

      The govt is not consistent with identifying dangers.

      1. No, I'd argue that what you're describing is a government that's being very consistent in identifying dangers.

        Dangers to it's own supremacy, not the populace.

    3. There absolutely is such a thing as an existential emergency for a nation. The nation's government deciding that it's entitled to act unlawfully if it thinks it has a good reason would be a good example of such an emergency.

    4. "Apparently, no one thinks unfettered rights for citizens ever come at the expense of reducing government power to cope with rare but extraordinary perilous occurrences"

      I think that unfettered rights for citizens comes at the expense of reducing government power to cope with rare but extraordinary perilous occurrences. And that is exactly as it should be.

      However, even if I were to accept that the government ought to have unfettered power to deal with "rare but extraordinary perilous occurrences", that doesn't mean that the courts should give any deference at all to the political branches when it comes to what qualifies as such a "rare but extraordinary perilous occurrence".

      1. Slyfield, you think the courts, and not the political branches, ought to decide when an emergency occurs? Do you know of anyone trained in the law who agrees with that?

    5. This isn’t an existential emergency. It’s also not clear that any of the interventions which restrict civil rights have had any effect on the disease progression. We live with infectious disease it’s not existential

    6. No one says there aren't emergencies, just that politicians loudly and publicly admit to following the rule "Don't let an emergency go to waste!"

      Anyway, it's good and healthy to be skeptical about emergency as an argument for power grabs. Ancient Rome and Greece, Germany in the 1930s, Venezuela 15 years ago, Turkey more recently, these and many more historical examples demonstrate emergencies lead to grants (and "grants") of emergency powers the executive receiver never gives up.

      It is so common, and tragic, in human history, it was used as the source for the fall of the Republic in the Star Wars prequels.

      Whether the emergency is real or a Phantom Menace, the dangers from the emergency powers are real.

      So again, it's healthy to question, monitor, fight against the grant of such powers. "The Constitution is not a death pact" seems to be spoken in this instance by those running headlong to the grant of emergency powers. Well, that is a real, and, historically, repeatedly demonstrated death pact.

      Remember the punch line from Princess Padme "So this is how liberty dies, with thundreous applause." The masses, the legislature, whoever, turns this power over not just willingly, but with cheers!

      1. Extra points for the star wars reference.

    7. Do tell then Stephen, what constitutes appropriate and inappropriate emergency powers. Which should, and which should not be subject to review?

      As noted by Krayt, what about all the instances in history are repeated the use of emergency powers to seize control and refrain from returning it? Have you forgotten about the old but quite true adage of power corrupting? There's more than a small few examples in history of power corrupting.

      So please, do go further into lying down in the bed you made for our enlightenment.

    8. Tell me, is there an "emergency powers" clause I missed somewhere in the US Constitution? Where if an "emergency" is declared then certain rights become null and void?

      1. "Tell me, is there an “emergency powers” clause I missed somewhere in the US Constitution?"

        Only one I'm aware of is Article 1, Section 9, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it".

        But, of course, being in Article 1, it's Congress' power to decide when it's required, not the President's.

  9. An interesting argument about the ethics of vaccine mandates that references Jacobson:

    https://jme.bmj.com/content/early/2021/10/20/medethics-2020-107026

  10. We’re not in an emergency. Emergencies require hourly actions maybe daily
    Is the virus a problem? Yes. Do we indefinitely suspend the constitution because of a problem.

    We shouldn’t

  11. This is the first time I have endeavored to read anything that you've written in a "scholarly" capacity, Josh, and by god, it is worse than I might have imagined. I would suggest re-writing your abstract:

    In Part I, I faff about pointlessly about the meaning of the word "essential," as used in various state measures designed to prevent the spread of the novel coronavirus, asserting without much discussion or support that the word just reflects the unprincipled value judgments of various governors. In Part II, I supply the bulk of this piece's length, most of it consisting of a 50-state survey of COVID restrictions imposed on gun sellers, conducted by first-year law students paid a summer stipend by my employer. In Part III, I engage in some additional pointless polemic, as I imply that the purchasing behavior of gun-buyers during the pandemic has something to do with whether an activity ought to be deemed "essential" under state orders and constitutional precedents that don't actually make any such reference to activity. Finally, in Part IV, over a handful of pages, I do my only real "legal" analysis, where I draw a spurious comparison to some recent free exercise holdings and treat a dissent as essentially good, relevant law (citing my own work to support this facially bizarre two-step), often employing misleading quotations to support my claims. I ultimately trip over my own argument, as I fail to connect my "the Second Amendment is 'essential'" constitutional claim to my assertion that small gun vendors ought to be deemed to be "essential businesses," relying instead on a just-so story taking issue with the specific policy judgments made by governors and state officials.

    Some of what you're doing here ought to be disqualifying for a law professor. You cite your own work as though it has established, precedential value (e.g., treating the right to sell guns as established by Heller; treating a Kavanaugh dissent as incorporated by a later Court holding, etc.). You cherry-pick quotations from the FEC cases and frame them as though they say anything about the Second Amendment. 21 of the article's 33 pages are devoted to a survey of state restrictions on gun vendors, which ultimately does nothing to support your argument or conclusion. And none of the polemic you level at state governors or officials who restricted gun vendors is supported by anything more than your say-so.

    This is exactly why practitioners pay zero attention to what legal academia is doing. The only value it can be said to have is in the 50-state survey your students did for you. Everything else is two or three steps removed from good law - both in its summary of existing law and in terms of what might be a defensible extension of it. It borders on being a work of fantasy.

    1. Do you know the way to South Texas?

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