So holds a Ninth Circuit panel—with the authoring judge penning a hypothetical dissent, to illustrate his view that the Ninth Circuit’s Second Amendment precedents are too malleable. From McDougall v. County of Ventura, today’s opinion by Judge Lawrence Vandyke joined by Judge Ryan Nelson:
“[T]he right of the people to keep and bear Arms,” U.S. Const. amend. II, means nothing if the government can prohibit all persons from acquiring any firearm or ammunition. But that’s what happened in this case. Under California’s highly regulated framework for firearms, law-abiding citizens can only obtain firearms and ammunition by arriving in-person to government-approved gun and ammunition shops. And after purchasing a firearm, they must wait a minimum of ten days to obtain it (and sometimes much longer).
When COVID hit, Ventura County, California issued a series of public health orders (collectively, Orders) that mandated a 48-day closure of gun shops, ammunition shops, and firing ranges. They did this while allowing other businesses like bike shops to remain open. The Orders also prohibited everyone from leaving their homes other than for preapproved reasons, which did not include traveling to gun or ammunition shops or firing ranges outside the County.
The Orders therefore 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. We therefore reverse and remand to the district court….
[T]he Orders’ effective prohibition on all access to and the practice of firearms at firing ranges throughout the County clearly burdens conduct protected by the Second Amendment. And because Jacobson v. Massachusetts (1905)[, which upheld a smallpox vaccination mandate-EV,] does not concern the specific, constitutionally enumerated right at issue here, and essentially applied rational basis review, it does not apply. Instead, the severity of the Orders’ burden warrants strict scrutiny—which the Orders fail to satisfy because they are not the least restrictive means to further Appellees’ interest, especially when compared to businesses that have no bearing on fundamental rights, yet nevertheless were allowed to remain open. And even if intermediate scrutiny was the appropriate standard of review, Appellees failed to show how the Orders satisfied it given their complete omission of any explanation as to why gun shops, ammunition shops, and firing ranges posed any more of a risk than other non-Constitutionally protected activities that were deemed “essential” and allowed to remain open….https://reason.com/volokh/2022/01/20/shutdown-of-gun-stores-during-early-covid-months-violated-second-amendment/
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