As a rule, few things are less likely to be the source of humor than court decisions. Sometimes there are excellent puns or low-key snark, but you don’t find belly-laugh material. Usually.
Last Friday, a panel of the Ninth Circuit published a decision on a complaint arising from Ventura, California, that covered both the COVID panic and the Second Amendment. During the height of the COVID panic, that county ordered firing ranges, and gun shops closed. Presumably, this is because the Wuhan virus has a particular affinity for recreational venues. Several groups and individuals sued to overturn the order as it targeted an enumerated right under the U.S. Constitution.
The panel considering the case consisted of Judges Andrew Kleinfield (George W. Bush), Ryan Cooper (Donald Trump), and Lawrence VanDyke (Donald Trump). They concluded in a relatively straightforward manner that because the Second Amendment is a guaranteed right, any regulation must pass a “strict scrutiny” standard regardless of what the public health nazis wished to impose.
The only document the County pointed to as justification was the edict itself, in which its Health Officer recited in the “Whereas” clauses that “social isolation is considered useful” for this purpose. The County provided 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 County has simply neglected to make a record that could justify its actions. Neither pandemic nor even war wipes away the Constitution.
In fact, the panel also concluded that in addition to failing “strict scrutiny,” the Ventura rule could not meet any known standard of scrutiny. Good news, right?
Except the Ninth Circuit is notorious for the way it treats the Second Amendment as some sort of red-haired step-child of Constitutional right. As a result, one is hard-pressed to find a case where a pro-Second Amendment decision has survived an en banc review. For instance, in 2018, a Ninth Circuit panel consisting of Diarmuid F. O’Scannlain (Ronald Reagan), Richard R. Clifton (George W. Bush), and Sandra S. Ikuta (George W. Bush) ruled that a Hawaii law that limited the right to possess weapons to the confines of one’s own home was overly restrictive (ya think?). Yet, in March 2021, the entire Ninth Circuit ruled that the Hawaii law was totes okay, contrary to Supreme Court precedent.
After disposing of the actual case under consideration, Judge VanDyke went on to skewer his own Circuit over its consistent “results-oriented” Second Amendment jurisprudence. This is from his concurrence.
I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it. But I write separately to make two additional points. The first is simply to predict what happens next. 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. See, e.g., Young v. Hawaii, 896 F.3d 1044, 1048 (9th Cir. 2018), on reh’g en banc, 992 F.3d 765 (9th Cir. 2021) (en banc) (overturning the three-judge panel); Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1147 (9th Cir. 2014), on reh’g en banc, 824 F.3d 919 (9th Cir. 2016) (en banc) (same); Duncan v. Becerra, 970 F.3d 1133, 1138 (9th Cir. 2020), on reh’g en banc sub nom. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021) (en banc) (same). 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. See Duncan, 19 F.4th at 1165 (VanDyke, J., dissenting).
My second point is related to the first. 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. See id. at 1162–63; Mai v. United States, 974 F.3d 1082, 1101 (9th Cir. 2020) (VanDyke, J., dissenting from the denial of rehearing en banc) (“Particularly in [the Second Amendment] context, we have watered down the ‘reasonable fit’ prong of intermediate scrutiny to little more than rational basis review.”). Our court normally refers to our legal test as a two-step inquiry, see United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013), 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.” Rhode v. Becerra, 445 F. Supp. 3d 902, 930 (S.D. Cal. 2020). 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. See Duncan, 19 F.4th at 1164–65 (VanDyke, J., dissenting).
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 jumpstart 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.
Then Judge VanDyke goes on to write an opinion that the Ninth Circuit can use to overturn this ruling.
Like every locality in the United States, Ventura County was forced to rapidly respond to an unprecedented pandemic. As the death toll for its citizens continued to rise, the county temporarily closed firearm stores and firing ranges, but lessened, and then eventually withdrew, those restrictions when the pandemic allowed. Plaintiffs may disagree with Ventura County’s decisions, but it is not our job—now with the benefit of hindsight—to dictate what Orders we would have found best. Local officials “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” S. Bay United Pentecostal Church, 140 S. Ct. at 1614 (Roberts, C.J., concurring) (citation omitted).
For these reasons, we affirm the district court’s dismissal of Plaintiffs’ complaint for failure to state a claim.
And there is this hilarious footnote.
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.
I don’t think there is much of a chance that Judge VanDyke will succeed in shaming the entire Circuit into leaving this decision alone, but I have to appreciate his style. These judges really don’t care about freedom or liberty. They exist to expand the power and reach of the administrative state. While it might not be possible to change what they rule, we should not act as though we are under any moral or ethical obligation to nod silently as they violate our rights. Instead, they need to be lampooned and ridiculed, and I hope Judge VanDyke makes it his personal cause to do just that.
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