The Second Amendment scored another crucial victory last week when a three-judge panel of the Ninth Circuit Court of Appeals ruled that disproportionate lockdown restrictions on gun stores in two California counties were unconstitutional.
However, in a rare and usual move, the federal judge who wrote the court opinion predicted the full court would overturn the ruling.
What is the background?
When the COVID-19 pandemic first hit in March 2020, California, like most states, enacted strict lockdown policies. Any business deemed "non-essential" by elected bureaucrats was, in many localities, forced to shut the doors.
In Los Angeles County and Ventura County, officials classified gun stores as "non-essential." In L.A. County, that meant such businesses were forced to shut down for 11 days. In Ventura County, gun stores were closed more than four times as long: 48 days.
Second Amendment advocates immediately filed lawsuits over the onerous rules. A federal judge ruled on the issue in April 2020 and claimed that county officials closing gun stores on public health grounds was not a violation of the Second Amendment.
What did the court rule?
Judge Lawrence VanDyke explained on behalf of the Ninth Circuit three-judge panel that lockdown policies that forced gun stores to close as "non-essential" businesses did, in fact, violate the Second Amendment.
In fact, VanDyke said the Second Amendment "means nothing if the government can prohibit all persons from acquiring any firearm or ammunition. But that’s what happened in this case."
The logic of the violation is simple. According to VanDyke, California already has a "highly regulated framework" for law-abiding citizens to obtain firearms and ammunition, including purchasing from government-approved businesses and waiting a period of 10 days or more before taking possession of the purchased firearm.
Therefore, when Ventura County forced gun stores to remain closed for 48 days while allowing, for example, bike shops to remain open, public officials had "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," VanDyke explained.
The judges issued the same ruling for the same reasons in the case of Los Angeles County.
What was unusual?
Not only did VanDyke write the court's opinion, but he wrote a separate concurring opinion that predicted the ruling would be overturned. In fact, VanDyke even wrote within his concurring opinion a ruling that upheld the lower district court's ruling.
VanDyke took this unusual step for two reasons: First, he observed that Second Amendment rulings in the Ninth Circuit almost always receive an appeal for an en banc hearing, meaning the full panel of judges who compose the Ninth Circuit Court of Appeals. Second, he explained that "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."
"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," VanDyke explained. "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."