A few weeks ago, in McDougall v. County of Ventura, a panel of the Ninth Circuit held that Ventura County’s early COVID-19 policies violated the Second Amendment. The majority opinion was fairly straightforward and enjoyed unanimous support from the three-judge panel: Judge Lawrence VanDyke, who wrote the opinion, Judge Andrew Kleinfeld, and Judge Ryan Nelson (a relatively rare Ninth Circuit panel with all Republican-appointed judges). But what made the case stand out is the separate concurrence from Judge VanDyke that included a mock opinion upholding the policies. It has generated quite a bit of commentary. As an observer of Second Amendment debates, Judge VanDyke’s concurrence is disappointing but not altogether surprising.
On March 17, 2020, when the coronavirus pandemic was first beginning, Ventura County issued a stay-at-home order for residents 75 and older, to last until April 1st. On March 20th, the County revised the order to include all county residents, consistent with a statewide executive order, and stated it would remain in effect until April 19th. The order allowed individuals to leave their homes for essential activities, but did not include purchasing or practicing with firearms in those activities. It encouraged essential businesses to stay home, but did not designate gun shops or shooting ranges as essential businesses. And the order did not explain how it chose to designate some activities and businesses as essential over others.
Another order on March 31st clarified the scope of activities for essential businesses, but again did not reference gun shops or ranges. An April 9th order expanded the list of essential businesses, adding “bicycle repair and supply shops (for online sales only), residential real estate services, and auto dealerships (also only online sales).” It, again, did not mention the gun shops, despite a federal memo from DHS that had, by that time, called firearm and ammunition makers essential. An April 20th order added still more businesses as essential—boatyards and the like—but did not explain why the businesses it designated were chosen. That order addressed gun shops for the first time, allowing those who had initiated a firearm purchase in the County prior to March 20th to complete the necessary in-person steps to complete the sale. For all others, gun shops were to remain closed.
On May 7th, the County lifted its restrictions and gun shops and shooting ranges were allowed to reopen. “Thus,” as the panel put it, “from March 20 to May 7, 2020—a total of 48 days—the Orders mandated the closure of gun shops, ammunition shops, and firing ranges throughout the County to the general public, including Appellants.” These closures impacted California residents more than they might impact residents in other states, because California law strictly regulates firearms. Except for minor exceptions, all firearm transfers have to be completed at a licensed gun dealer. Individuals have to undertake live-fire training to obtain a license to concealed carry. “The closure of gun shops, ammunition shops, and firing ranges therefore eliminates the only lawful means to acquire firearms and ammunition within the County, as well as law-abiding County residents’ ability to carry handguns in public.”
Just 8 days after the March 20th order, individuals who wanted to purchase and practice with guns filed suit, seeking emergency and permanent injunctive relief. The trial court denied injunctive relief and, eventually, granted the County’s motion to dismiss.
On appeal, the panel concluded that Jacobson v. Massachusetts, a 1905 Supreme Court case upholding a vaccination mandate against constitutional challenge, did not apply to the Second Amendment claim here. Applying the standard two-part framework for Second Amendment questions, the panel concluded that the County’s orders imposed a severe burden on protected conduct and that the orders failed strict and intermediate scrutiny. (As an aside, the court did not seem to focus on defining the government action at issue, but instead collected all the orders and treated them as one solitary government action that shut down gun stores for 48 days, though they were issued on different dates over several weeks with varying degrees of information about the evolving pandemic.)
The panel considered the orders to implicate core Second Amendment rights insofar as they “foreclosed the ability to acquire arms and ammunition and maintain proficiency in the use of firearms.” That foreclosure also constituted a severe burden on core rights. The temporary nature of the orders did not save them because (citations and quotation marks omitted):
Both this court and the Supreme Court have repeatedly held that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Because First Amendment principles guide the analysis of the burden’s severity in the Second Amendment context, there is no reason that the loss of Second Amendment freedoms even for “minimal periods of time” would not likewise constitute irreparable injury.
This is especially true in the Second Amendment context, where 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.
Because the orders constituted a severe burden on core rights, strict scrutiny applied. Relying on the Supreme Court’s recent cases concerning COVID closure orders applied to churches, the panel held that the orders failed strict scrutiny because (among other factors) they imposed stricter requirements on gun shops than on other similarly situated businesses. The orders did not permit gun shops or ranges to take other means to stay safe, like operating on an appointment-only basis or taking other mitigation measures. “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.” The court held those same factors would render the orders unconstitutional under intermediate scrutiny as well.
Although I might quibble with parts of the panel opinion, I think it overall represents a fair and reasonable approach to orders that—though issued in the chaotic and uncertain early days of the pandemic—failed to meaningfully distinguish between the risks at gun shops/ranges and other businesses permitted to remain open. But the concurrence Judge VanDyke penned was, in my opinion, neither reasonable nor fair.
Judge VanDyke’s concurrence begins, “I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it.” It goes downhill in seriousness from there. He pens a mock (in all senses of that word) en banc opinion that upholds the law to show—in his words—that the Ninth Circuit “can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review.” The mock opinion contains an analysis that applies intermediate scrutiny to uphold the orders, but the footnotes include “thought-bubbles” that contain nothing but derision and contempt for his colleagues. Here’s one example, a footnote appended to the end of the fake opinion, after a sentence that quotes Chief Justice Roberts’ opinion in one of the church-related closure cases that underscores how judges should not second-guess public health officials:
Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.
Judge VanDyke ostensibly wrote the opinion to “demonstrate just how easy it is to reach any desired conclusion under our current framework.” That seems odd to me. It’s like imagining that every single case in which there’s a dissent shows that the methodology the majority used can be deployed for any end. Of course, some legal realists do believe this, but I take it Judge VanDyke is not a realist in that sense. For most of us, a dissent gives an opportunity to test which set of rationales makes the most sense against the existing backdrop of legal principles; some might even judge these according to fit and justification. Often judges can apply the same test in good faith and reach different outcomes.
What strikes me about Judge VanDyke’s concurrence (among other things) is how we’d apply that reasoning to Heller itself. After all, Justice Stevens (in)famously takes on Justice Scalia on his own ground—using an originalist methodology and coming to the complete opposite conclusion. Does the existence of that alternative opinion mean originalism “is exceptionally malleable” and can just be used “to reach any desired conclusion”? Again, some scholars believe this, but again, I doubt Judge VanDyke wants to follow that logic. So what’s the point of demonstrating there’s an opinion that could be written in which other judges might disagree with you? That sort of exercise could lead to judicial humility. Recognizing that other judges might view a dispute differently could make one less certain about the rightness of their position. That doesn’t seem to be what’s happening here. And given the tenor of recent Second Amendment debates, and particularly the vehemence with which conservative judges and justices are dissenting from established precedent and declaring the Second Amendment mistreated as a “second class” right, this kind of opinion doesn’t surprise me.