The Volokh Conspiracy
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So holds a Ninth Circuit panel—with the authoring judge penning a hypothetical dissent, to illustrate his view that the Ninth Circuit's Second Amendment precedents are too malleable. From McDougall v. County of Ventura, today's opinion by Judge Lawrence Vandyke joined by Judge Ryan Nelson:
"[T]he right of the people to keep and bear Arms," U.S. Const. amend. II, means nothing if the government can prohibit all persons from acquiring any firearm or ammunition. But that's what happened in this case. Under California's highly regulated framework for firearms, law-abiding citizens can only obtain firearms and ammunition by arriving in-person to government-approved gun and ammunition shops. And after purchasing a firearm, they must wait a minimum of ten days to obtain it (and sometimes much longer).
When COVID hit, Ventura County, California issued a series of public health orders (collectively, Orders) that mandated a 48-day closure of gun shops, ammunition shops, and firing ranges. They did this while allowing other businesses like bike shops to remain open. The Orders also prohibited everyone from leaving their homes other than for preapproved reasons, which did not include traveling to gun or ammunition shops or firing ranges outside the County.
The Orders therefore wholly prevented law-abiding citizens in the County from realizing their right to keep and bear arms, both by prohibiting access to acquiring any firearm and ammunition, and barring practice at firing ranges with any firearms already owned. These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny. We therefore reverse and remand to the district court….
[T]he Orders' effective prohibition on all access to and the practice of firearms at firing ranges throughout the County clearly burdens conduct protected by the Second Amendment. And because Jacobson v. Massachusetts (1905)[, which upheld a smallpox vaccination mandate-EV,] does not concern the specific, constitutionally enumerated right at issue here, and essentially applied rational basis review, it does not apply. Instead, the severity of the Orders' burden warrants strict scrutiny—which the Orders fail to satisfy because they are not the least restrictive means to further Appellees' interest, especially when compared to businesses that have no bearing on fundamental rights, yet nevertheless were allowed to remain open. And even if intermediate scrutiny was the appropriate standard of review, Appellees failed to show how the Orders satisfied it given their complete omission of any explanation as to why gun shops, ammunition shops, and firing ranges posed any more of a risk than other non-Constitutionally protected activities that were deemed "essential" and allowed to remain open….
The majority concluded that the orders "implicate[d]" and "severely burden[ed]" "the core of the Second Amendment right" "because they foreclosed the ability to acquire arms and ammunition and maintain proficiency in the use of firearms—rights which an en banc panel of this court has repeatedly acknowledged are 'necessary to the realization of the core right to possess a firearm for self-defense." It then concluded that strict scrutiny was the constitutionally proper test, and that the orders were unconstitutional under that test:
In arguing against the application of strict scrutiny, Appellees primarily rely on Silvester v. Harris (9th Cir. 2016) and its holding that California's 10-day waiting period between purchase and possession of a firearm warranted intermediate scrutiny…. [But] Silvester concerned no more than a 10-day waiting period—nearly five times shorter than the Orders' 48-day effective ban on firearm and ammunition sales at issue here…. [And] Silvester's rationale turned on the government's claimed interest in a "cooling off" period, which is not at issue here….
[I]n the Second Amendment context, … the need for armed protection in self-defense can arise at a moments' notice and without warning. People don't plan to be robbed in their homes in the dead of night or to be assaulted while walking through city streets. It is in these unexpected and sudden moments of attack that the Second Amendments' rights to keep and bear arms becomes most acute…. The acute need for Second Amendment rights during temporary crises was well-understood by our Founders. Modern society agrees, as firearm and ammunition sales have soared during the recent pandemic. But if the government suspends these rights during times of crises, the Second Amendment itself becomes meaningless when it is needed most—especially to the victims of attacks….
The Orders cannot survive strict scrutiny. "Under that standard, the regulation is valid only if it is the least restrictive means available to further a compelling government interest."
The Orders attempt to "[s]tem the spread of COVID- 19," which "is unquestionably a compelling interest." But the recent Supreme Court COVID cases compel the conclusion that the Orders are not the least restrictive means to further this compelling interest. The complete closure of all gun shops, ammunition shops, and firing ranges is "far more restrictive than any COVID-related regulations that have previously come before the [Supreme] Court," as those cases only concerned regulations limiting the capacity at activities that implicated fundamental rights, not an outright ban of those activities altogether.
"[T]here are [also] many other less restrictive rules that could be adopted to minimize the risk" of allowing gun shops, ammunition shops, and firing ranges to remain open. Among other things, the County could have opened gun shops, ammunition shops, and firing ranges on an appointment-only basis, just like it eventually did for people who purchased a firearm before the Orders took effect.
The Orders' discriminatory impact on gun and ammunition shops also emphasizes that they were not "the least restrictive means available to further a compelling government interest." Just like in Roman Catholic Diocese v. Cuomo (2020), the Orders allowed "essential" businesses like bicycle repair shops and hardware stores to remain open but forced venues that provide access to core fundamental liberties—in this case, Second Amendment rights—to close. In this somewhat unique scenario where governments are grappling with a global pandemic, the risk of gun shops, ammunition shops, and firing ranges remaining open have nothing to do with the dangers typically associated with firearms. Instead, just as in the recent Supreme Court COVID cases involving religious liberty, all activities open to the public in the County essentially pose the same risk of furthering the spread of COVID by way of facilitating continued public interaction. See Tandon v. Newsom (2011) ("Comparability is concerned with the risks various activities pose, not the reasons why people gather."). And there is nothing in the record suggesting that gun shops, ammunition shops, or firing ranges posed a higher risk of spreading COVID than, say, bicycle shops or hardware stores.
The governments' designation of "essential" businesses and activities reflects a government-imposed devaluation of Second Amendment conduct in relation to various other non- Constitutionally protected activities during times of crises, irrespective of any of the unique dangers presented by firearms, ammunition, or firing ranges. Such devaluation directly undermines the strong protections the Constitution was designed to protect, even through the "various crises of human affairs." The Orders' discriminatory denigration of fundamental liberties reveals that they are not the least restrictive means available, further demonstrating their inability to survive strict scrutiny.
Ultimately, the issue boils down to the County's designation of "essential" versus "non-essential" businesses and activities. While courts should afford some measure of deference to local policy determinations, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." When a government completely bans all acquisition of firearms and ammunition by closing gun shops, ammunition shops, and firing ranges, it's one of those off-limits policy choices squarely contemplated by Heller. The Orders cannot satisfy strict scrutiny.
The majority concluded, for much the same reasons, that the Orders would fail even intermediate scrutiny, if that were the right standard. (I oversimplify here, but the post is already too long.)
Judge Andrew Kleinfeld concurred in the judgment, but wrote separately:
First, we need not reach the question whether strict scrutiny applies, so I would not. While strict scrutiny may be appropriate, as the majority concludes, nevertheless we should not make more law than is necessary to decide the case. Second, I wish to expand upon the absence of justification in the record for what the County did.
The Supreme Court and we have held that rational basis review is not appropriate to a statute (let alone a mere edict by a county official, as here) challenged under the Second Amendment. We and other circuits have used First Amendment analysis as a guide. In Packingham v. North Carolina, a recent First Amendment challenge to a prohibition against a registered sex offender accessing social media sites, the Supreme Court explained that "to survive intermediate scrutiny, a law must be 'narrowly tailored to serve a significant governmental interest.'" The fit between the governmental objective and the prohibition need not be perfect, but it must be reasonable. To survive intermediate scrutiny, the government cannot "burden substantially more speech than is necessary to further the government's legitimate interests."
A valid governmental interest (in Packingham, keeping child molesters from using Facebook and Twitter to find new victims) is not adequate to insulate the restriction from all constitutional protections. The State must "me[e]t its burden to show that th[e] sweeping law is necessary or legitimate to serve that purpose." While the government's burden of proof is not "unnecessarily rigid," the evidence in the record must still "fairly support" the government's position. Of course, "we defer to reasonable legislative judgments." In the case before us, the challenged order is not a "legislative judgment," merely an edict by a subordinate official within the County executive, presumably entitled to less deference than a legislative judgment.
Thus, regardless of whatever deference this edict may receive, the County bears the burden of establishing a "reasonable fit" between its purpose of slowing the spread of the virus and its prohibition of sales of and practice at gun ranges with guns and ammunition. That purpose is legitimate, but the legitimacy of the purpose is not enough to abridge a constitutional right. The County must show that the evidence in the record establishes a reasonable fit of the edict to the legitimate purpose….
There is no evidence whatsoever in the record to show why the particular inclusions and exceptions relating to firearms, ammunition, and shooting ranges reasonably fit the purpose of slowing the spread of the COVID-19 virus. The only document the County points to as justification is the edict itself, in which its Health Officer recites in the "Whereas" clauses that "social isolation is considered useful" for this purpose. The County provides no evidence and no justification for why bicycles could be purchased and delivered, for example, but firearms could not even be picked up at the storefront, or for why such outdoor activities as walking, bicycling, and golfing were allowed, but acquiring and maintaining proficiency at outdoor shooting ranges was not.
The State of California Public Health Officer had made an exception to the statewide order confining people to their residences for workers needed to "maintain continuity of operations of the federal critical infrastructure sectors" of the economy. The federal government had advised that gun stores should be treated as "essential critical infrastructure," but the County offers no justification whatsoever, let alone evidence, for why it did not so treat gun stores, as the State exception and federal advisory memorandum did. The federal guidance, ignored without any stated reason by the County, deemed "workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges" to be within the "critical infrastructure workforce."
The dramatically broad County Health Officer's edict established that anyone in the County could be arrested and put in jail for myriad activities outside the home or for engaging in commercial transactions other than those explicitly excepted from the edict, yet the County offers no evidence nor even any argument for the apparently arbitrary list of exclusions. Nor does the County make any effort, not by presenting evidence, nor even by presenting argument, for why such constitutionally protected activities, whether public speech, or going to church, or purchasing and practicing with firearms and ammunition, were simply banned, instead of accommodated with a reasonable fit to the purpose of slowing the spread of the virus….
Judge Vandyke also filed a separate opinion that noted (not with praise, I think) the likelihood of en banc review—and indeed wrote, though without endorsing, a dissenting opinion to his own majority:
[1.] I'm not a prophet, but since this panel just enforced the Second Amendment, and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit. Our circuit has ruled on dozens of Second Amendment cases, and without fail has ultimately blessed every gun regulation challenged, so we shouldn't expect anything less here….
[2.] As I've recently explained, our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review. Our court normally refers to our legal test as a two-step inquiry, although it may be better understood as a "tripartite binary test with a sliding scale and a reasonable fit"—a test that "only a law professor can appreciate." The complex weave of multi-prong analyses embedded into this framework provide numerous off-ramps for judges to uphold any gun-regulation in question without hardly breaking a sweat.
Given both of these realities—that (1) no firearm-related ban or regulation ever ultimately fails our circuit's Second Amendment review, and (2) that review is effectively standardless and imposes no burden on the government—it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former. Those who know our court well know that all of our judges are very busy and that it's a lot of work for any judge to call a panel decision en banc. A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion.
Since our court's Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn't write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. To better explain the reasoning and assumptions behind this type of analysis, my "alternative" draft below will contain footnotes that offer further elaboration (think of them as "thought-bubbles"). The path is well-worn, and in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit's stamp of approval….
For the hypothetical dissent, see the full decision, starting with p. 48. But I couldn't resist including footnote 11 (the footnotes in Judge Vandyke's hypothetical dissent are asides that criticize the current Ninth Circuit doctrine):
I know this sounds a lot like rational basis review. After all, if a government interest would be "achieved [more] effectively absent the [challenged] regulation," it's hard to see how that regulation would survive even rational basis scrutiny. But trust us, this is heightened scrutiny. So very heightened.
Disclosure: The plaintiffs included the Firearms Policy Coalition, for which I consult on various cases, but I didn't work on this one. Congratulations to Ray DiGiuseppe, Joseph Greenlee, and Ronda Baldwin-Kennedy on their victory.