A three-judge panel of the Ninth Circuit Court of Appeals has ruled unconstitutional a California county’s shutdown of gun stores citing the coronavirus pandemic. But the Ninth Circuit is the most liberal, anti-gun federal appeals court when it comes to the Second Amendment, so this decision may end up being reversed by a larger, 11-judge “en banc” court of Ninth Circuit judges, if the Ninth Circuit’s liberal majority votes to have this ruling reheard before that group of randomly selected 11 judges. Reason magazine reports:
For 48 days in the spring of 2020, Ventura County, California, effectively prohibited the purchase of firearms or ammunition. It also barred people who already owned firearms from visiting gun ranges to hone their skills and prevented them from taking the steps necessary to obtain carry permits, which are legally required in California to exercise the right to bear arms outside the home. The county did all of this in the name of controlling COVID-19, although it simultaneously allowed many other activities that posed similar or greater risks of virus transmission.
Yesterday a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled that Ventura County’s decision to ban a wide range of firearm-related activities for a month and a half violated the Second Amendment. Applying essentially the same analysis in another case decided yesterday, the same panel ruled that Los Angeles County likewise violated the Second Amendment when it shut down gun stores for 11 days early in the pandemic.
The right to keep and bear arms, Judge Lawrence VanDyke observes in McDougall v. County of Ventura, “means nothing if the government can prohibit all persons from acquiring any firearm or ammunition….These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.”
The 9th Circuit panel overruled U.S. District Judge Consuelo Marshall, who in 2020 dismissed the challenge to Ventura County’s anti-gun pandemic policy, rejecting the constitutional claims made by individual residents, retailers, ranges, and gun rights groups. Marshall deemed the county’s policy a valid exercise of public health powers that was perfectly consistent with the Second Amendment.
This case therefore illustrates not only the arbitrariness of COVID-19 lockdowns but also the willingness of some courts to accept public health as an excuse for violating clearly established constitutional rights. It also illustrates judicial resistance to treating the rights guaranteed by the Second Amendment with the same respect as other constitutional rights. VanDyke mocks both of those tendencies in a slyly satirical “alternative draft opinion” that he suggests his 9th Circuit colleagues can use when they overturn the panel’s decision, an outcome he views as inevitable.
After a three-judge panel of federal appeals court judges issue a decision, the losing party can seek rehearing “en banc” by a larger group of judges on that federal appeals court. In most federal appeals courts (known as “circuits”), the en banc rehearing is held before all the judges of that circuit. But the liberal Ninth Circuit has so many judges (28 judges) that they can’t all fit in the courtroom usually used to rehear case. So rehearing en banc occurs instead before a panel of 11 of the 28 judges, who are supposed to be randomly selected from the 28 judges to hear it (except for the chief judge of the circuit, who gets to participate in all rehearings. Being chief judge of the Ninth Circuit gives a judge disproportionate influence, sitting in every en banc case in a court that hears appeals from a vast area, amounting to a fifth of the entire United States. The power of the Ninth Circuit chief judge is unlike in most circuits, where being chief judge is mainly an administrative responsibility that does not give the chief judge a lot more power than any other judge on the same court. Some chief judges misuse their authority, such as former Sixth Circuit Chief Judge Boyce Martin, who deliberately delayed an en banc rehearing in a challenge to a college’s affirmative-action policy until two Republicans retired, resulting in that policy being upheld 5-to-4 in Gratz v. Bollinger, with three Republican judges and one Democratic judge dissenting).