Ninth Circuit on Gun Store Lockdowns and a Curious Concurrence by Judge VanDyke

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.

Litigation Highlight: Young Adults Carrying Firearms

In Lara v. Evanchick, Judge William Stickman IV, a recent Trump appointee on the federal district court for the Western District of Pennsylvania, upheld last week the state’s licensing law and open carry restrictions as applied to 18-20 year-olds.  Under Pennsylvania law, only those over 21 are eligible to obtain the necessary license to carry a concealed firearm. Those lawfully allowed to possess firearms (including those 18-20 year old) are typically able to openly carry their guns instead. But Pennsylvania law declares that open carry on public streets and property is forbidden during a state of emergency, except for license holders, those (numerous groups) statutorily exempt from licensure, or those “[a]ctively engaged in a defense of that person’s life or property from peril or threat.” Pennsylvania (I learned by reading this opinion) has been under an unceasing declaration of emergency since January 10, 2018–initiated because of the opioid epidemic, sustained by the COVID-19 pandemic, and with both declarations renewed several times.

A group of under-21 year old adults and gun-advocacy groups sued, claiming that this collective set of regulations violated their Second Amendment rights. The court upheld the restrictions under step one of the two-part framework for Second Amendment challenges. At that step, said the court, its job was to determine “whether a gun restriction falls within the class of ‘longstanding prohibitions’ and ‘presumptively lawful’ regulations that the Supreme Court recognized as falling outside the scope of the liberty protected by the Second Amendment.” Noting that the plaintiffs did not challenge any of the statutory restrictions in isolation, but rather their operation in tandem, the court found the laws imposed a much smaller burden than the plaintiffs suggested. The question it confronted was “whether age-related restrictions on carrying firearms–which, nevertheless, permit carrying for a broad range of purposes including the defense of ‘life or property from peril or threat’ and a range of other activities-are the kind of ‘presumptively lawful regulatory measures’ recognized by Heller that fall outside the scope of the Second Amendment.” It held that they did, relying in part on precedent from other circuits, such as the Fifth Circuit’s decisions in ATF v. NRA and NRA v. McCraw. Summing up, the court noted:

The question is not whether the challenged laws themselves date to the founding, but rather, only whether they are the sort that have long been accepted as being consistent with the right to keep and bear arms. As the cases above illustrate, there is no question that age-based restrictions on the ownership, use and, especially, carrying of firearms have a long history in this Country. A strong consensus exists among federal courts that such restrictions fall outside the scope of the rights protected by the Second Amendment. The Court will adhere to that consensus and reach the same result.

Covid & Guns Video Series Roundup

Last month, in response to reporting on the increase in gun sales nationwide amid the coronarivus pandemic, we launched a video series called Covid & Guns. In the series, we talked with a wide range of experts, including lawyers, sociologists, policy gurus, empirical researchers, and physicians. Each brought a unique perspective to questions about the factors driving gun sales, the benefits and risks of guns in a crisis, and more. Unless anything changes, we’ve wrapped up the series for now and rounded up the 7 videos below. We’re grateful for the terrific guests who joined us. You can always check out the Videos page on our website to see more.


David Kopel 

Jeff Swanson

Trent Steidley

Jennifer Carlson

Jack Rozel & Layla Soliman

David Yamane

Phil Cook

Contagion and Partisan Federalism

The COVID-19 pandemic has been a proving ground for federalism, or at least for takes about federalism.  Mayors shut down beaches and then are overruled by governors.  Governors request vital medical supplies from the federal stockpile but the President refuses, saying that states have primary responsibility for the crisis and the federal government is a “backup” – then a week later says that his authority as President is “total” and he can unilaterally order the economy to reopen.  Meanwhile, governors in the northeast and the west are discussing (arguably unconstitutional) multi-state pacts to coordinate a strategy for reopening.  What can we conclude about federalism during this unprecedented crisis?  Does the devolution of power enable cities and states to act decisively, or do we need more centralization so the executive can fashion a uniform response?  Is the diffusion of power a check on Presidential malfeasance and incompetence or a recipe for chaos?

Fans of federalism often say that states and local governments are “laboratories of democracy.” They can freely experiment with solutions because the consequences of failure are limited.  But the “laboratories” metaphor has always been a strained one because cities and states are so highly integrated with each other that the decisions of one city or state often have significant extralocal impacts, and a global pandemic is an almost too on-the-nose example of a problem that does not respect local borders.  In addition, the limited horizon of local decisionmaking often leads to short-sighted and parochial actions that ignore the global consequences of local decisions, as is evident from the resistance of many localities to the siting of testing centers or placement of COVID-19 patients in their communities.  Aside from that, would we really want to use cities as “control groups” and see what happens when they experiment with divergent responses to the pandemic, as the mayor of Las Vegas recently suggested?

On the other hand, decentralized governments may have an advantage in at least initially responding to crises like this one because they have ready access to local information, less need to scale up, and an incentive to address the problem pragmatically and without the baggage of partisan ideology.  Further, the presence of multiple decisionmakers does decrease the stakes of any one leader’s missteps. For many Americans, indeed, the quiet competence of their mayor or governor is a refreshing reprieve from the noxious buffoonery emanating from the White House.

Diffusion of authority is hardly a panacea, however, for it does not cure the need for a coordinated response to large-scale problems, and such a coordinated response requires a strong or at least a capable central government.  This is why the President’s claim that the states have primary responsibility for addressing the COVID-19 crisis and that the federal government is a mere “backup” is so alarming.  This claim, in fact, has been compared with the philosophy underlying the failed Articles of Confederation, which intentionally created a toothless national government and was replaced by our Constitution precisely because the national government it created was far too weak to address problems of a national scale.

The “backup” rhetoric is more alarming still because it demonstrates how readily the institution of federalism can be pressed into the service of partisan demagoguery.  Pushing the narrative of a weak federal executive has counterintuitively been a key part of Trump’s governing strategy since the first days of his administration, when he issued an executive order barring virtually all federal funding for “sanctuary cities” that was so poorly drafted it could only have been intended to die a quick death in the courts, which it then did.  The goal was not to cut off federal funding for sanctuary cities but to say that Trump would have done so if the liberal judiciary hadn’t stopped him, which allowed him to create a convenient punching bag while also appearing as though he was taking decisive action without actually doing anything for which he could be held accountable. Likewise, calling for the economy to be opened up and touting the efficacy of unproven drugs like hydroxychloroquine is designed to shift responsibility to timid governors and faceless bureaucrats for refusing to take bold strokes, and since we will never know what would have happened in the counterfactual world in which Trump’s advice was heeded, he is free to say that it would have worked if only the haters and losers had listened to him.  Though it may seem contradictory, Trump’s recent reversal on the question of his own Presidential authority did not represent a shift in strategy but an impromptu attempt to save face and assert dominance when presented with evidence of his own impotence.

In Trump’s playbook, the Constitution’s institutional safeguards like federalism and the separation of powers exist to manufacture scapegoats and dodge accountability.  But worse than that, they can also be used as a patronage slush fund to reward political allies and punish enemies.  Notwithstanding the assertion that the federal government is a backup, Trump has been happy to send personal protective equipment to political allies in red states.  This decision promises political upside without much downside since the electoral college makes most blue states irrelevant to Trump’s re-election chances anyway (another feature of modern federalism).  What all this demonstrates is that despite debates about whether  the United States features “competitive federalism” or “cooperative federalism,” what we actually have is partisan federalism, or perhaps reality-TV federalism, in which the governors who praise Trump the longest and loudest win the prize of obtaining life-saving medical equipment.

The craven use of federalism for partisan advantage at the national scale is perhaps the culmination of a recent trend within states.  The last few years have witnessed an explosion in state legislatures overruling decisions by cities and stripping cities of powers they had long exercised.  The strong uptick in incidents of “preemption” has coincided with a demographic trend in which many state legislatures are dominated by conservative Republicans while many of the more populated cities within those states are moving steadily to the left.  Perhaps not coincidentally, the “new preemption” has had a decidedly partisan flavor, with states tending to preempt local governments on hot-button political issues like gun control, immigration, the minimum wage and others. At the meta-level, partisan preemption allows Republican state legislatures to strike a symbolic blow in the culture war against liberals and big cities.

Most disturbingly, partisanship has become so strong that it has substantially affected responses to the pandemic.  Where states have preempted local stay at home ordinances, it has primarily been Republican-controlled states overruling Democratically controlled cities.  Republican governors in general have been slower to order stay-at-home ordinances, which is partially a demonstration of their fealty to the President, whose primary concern has been the effect of the pandemic on the national economy, and partially an expression of a rather extreme commitment to rugged individualism.

Partisan federalism and partisan preemption are especially depressing because they cut against one of the central purposes of federalism, which is to permit the co-existence of different normative cultures within a polity.  In principle, we could neutralize the zero-sum nature of today’s partisan culture war and nevertheless maintain a sense of national identity by enabling more localized authorities to have some autonomy over matters critical to communal self-definition while allowing the central authority to override local control in situations calling for coordinated action.  But in the last few decades two seemingly contradictory trends have occurred simultaneously – the integration of national popular culture and the fragmentation of that culture into partisan enclaves – that in combination have caused matters once considered purely local concerns to become national controversies, each one spun into a possible tipping point in the battle for the nation’s soul.  As the local has become entwined with the global, partisanship has itself become contagious, extending all the way down to the local level.  And for that reason, federalism has not only proven inadequate but has arguably exacerbated the partisan nature of the response to the pandemic.

[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]

Announcing a New Interview Series on Covid & Guns

As we’ve previously talked about on this blog, the coronavirus pandemic has raised several questions about firearms law and the Second Amendment (see here, here, here, and here). To broaden the perspective about these unique circumstances, we’re launching a video series on Covid & Guns. In this special series, we interview experts in different fields to get their views on these issues, including questions about increasing gun sales, the potential for exacerbated gun harms, the possibility of additional benefits to ownership, and more.

We plan to post 1-2 of these videos each week for the next several weeks. They will be available on the Center’s YouTube page, as well as on the Center’s website. And we’ll also be tweeting out clips from our Twitter account (@DukeFirearmsLaw). We hope you’ll follow along!