Page 1
VanDyke Writes for Majority, Spoofs Opinion Arriving at Contrary Result
Ninth Circuit Panel Reverses Order Dismissing Action Over Ventura County
Closing Gun and Ammunition Shops, Firing Ranges for 48 Hours
By a MetNews Staff Writer
Ninth U.S. Circuit Court of Appeals Judge Lawrence VanDyke, a conservative who is prone to ridicule his circuit over its liberal tendencies, yesterday wrote for the majority in reversing the dismissal of an action against Ventura County over ordering gun shops and firing ranges to be closed for 48 days in light of the pandemic, then, in a concurring opinion, took the opposite stance in an “alternative draft” which an en banc court could adopt.
“I’m not a prophet,” he wrote, “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.”
He went on to observe:
“[O]ur 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 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.”
Tongue-in-cheek, he announced that he would assist his “hard-working colleagues” by providing a draft opinion upholding a restriction on gun sales, employing the circuit’s “standardless” review in the form of intermediate scrutiny. Explaining his undertaking, he said:
“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 jump-start on calling this case en banc. Sort of a win-win for everyone.”
‘Thought Bubbles’
VanDyke provided his alternative draft, sprinkled with facetious footnotes slyly ridiculing the assertions in the text. He advised the reader: “[T]hink of them as ‘thought-bubbles.’ ”
While in his majority opinion, the jurist, joined by Circuit Judge Ryan D. Nelson, said that “the Orders’ severe burden on the core of the Second Amendment right warrants strict scrutiny,” in his mock opinion affirming the order, he quoted the U.S. Supreme Court’s 2008 opinion in District of Columbia v. Heller as saying that rights under the Second Amendment are “not unlimited.” He commented in a footnote: “We really like this ‘not unlimited’ language from Heller, and cite it often and enthusiastically,” listing seven Ninth Circuit opinions in which the words are used, adding:
“One might conclude it is the driving force in our circuit’s Second Amendment jurisprudence.”
Level of Scrutiny
He recited in the text:
“A law that destroys the Second Amendment right is unconstitutional under any level of scrutiny; a law that both implicates the core of the Second Amendment and severely burdens that right is subject to strict scrutiny; all other laws are subject to intermediate scrutiny.”
VanDyke interjected in a footnote:
“We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.”
|
|
|
LAWRENCE VANDYKE Ninth Circuit Judge
|
Two-Step Procedure
The circuit has adopted a two-step inquiry, asking whether there is a burden imposed on Second Amendment rights and, if so, what level of scrutiny should be applied. VanDyke said in a footnote:
“[U]sually we just skip over step one of our ‘two-step’ test by assuming the challenged regulation burdens Second Amendment-protected conduct. But that’s okay, because the real beauty of our two-step test is its amazing flexibility at the various stages of step two in balancing the government’s asserted interest versus the claimed impact on the ‘core’ of the Second Amendment.”
Proceeding in his discussion to “Step Two,” he remarked in a “thought bubble”:
“It is important to recognize that all the real work in our Second Amendment test is done right here. First, notice how much discretion this test gives us judges! There is so much flexibility in deciding whether anything short of an outright permanent ban (which nobody is dumb enough to enact anymore) places a ‘severe burden’ on the Second Amendment. We can always point to stuff that isn’t banned in concluding this particular regulation isn’t a ‘substantial burden.’ And second, once we’ve concluded that a challenged regulation does not place a ‘substantial burden on Second Amendment rights,’ it’s really game over. A regulation that we’ve already determined does not substantially burden the Second Amendment can be upheld easy-peasy under our watered-down intermediate scrutiny test.”
Pretended Conclusion
After mimicking arguments he anticipates will be made in an en banc opinion affirming the dismissal by District Court Judge Consuelo B. Marshall of the Central District of California, VanDyke reached the feigned conclusion “that the Orders do not severely burden any Second Amendment right implicating the core of the Second Amendment, so intermediate scrutiny is appropriate.” He sighed in a footnote:
“Whew. Hard work done. It’s all downhill from here!”
After proclaiming an affirmance, the wag told colleagues of a more liberal bent who were the purported beneficiaries of his draft:
“You’re welcome.”
Majority Opinion
In the majority opinion, VanDyke opined that the right to bear arms under the Second Amendment “means nothing if the government can prohibit all persons from acquiring any firearm or ammunition.”
He continued:
“When COVID hit, Ventura County, California issued a series of public health 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 bailing practice at firing ranges with any firearms already owned. These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment….”
While expressing the view that strict scrutiny applies. VanDyke concluded that the orders also failed to withstand intermediate review.
Kleinfeld’s Opinion
Senior Judge Andrew J. Kleinfeld, concurring in the result, expressed the view that it was unnecessary to determine what level of scrutiny applied. He also decried the “arbitrariness” of Ventura County banning some activities while allowing others, saying:
“The dramatically broad County Health Officer’s edict established that anyone in the County could be arrested and put in jail for myriad activities outside the home or for engaging in commercial transactions other than those explicitly excepted from the edict, yet the County offers no evidence nor even any argument for the apparently arbitrary list of exclusions….The government’s argument seems to be that so Ions as it satisfies the first step of intermediate scrutiny, showing some legitimate purpose, it has no burden under the second step, to establish a reasonable fit with that purpose. If that were correct, the County could order the closure of Mexican restaurants but make an exception for French restaurants, because the arbitrariness of that distinction would not matter any more than the distinction between bicycling and shooting at outdoor gun ranges. Such arbitrariness is not the law.”
He went on to provide this assessment:
“On the record before us, all we have is a series of orders allowing some retailing of hardware and other consumer products but not firearms or ammunition, and allowing some outdoor activities such as golfing and bicycling but not shooting at outdoor firing ranges. Nothing in the record explains why. The County has simply neglected to make a record that could justify its actions. Neither pandemic nor even war wipes away the Constitution.”
The case is McDougall v. County of Ventura, 20-56233.
Concurring Opinions
The authoring of a concurring opinion by the justice who wrote for the court or for the majority, once unheard of, has become a practice in California that is not uncommon. The approach was employed by California Supreme Court Justice Stanley Mosk, now deceased, in the 1978 case of Hawkins v. Superior Court. He wrote the majority opinion, and in a concurring opinion, he noted:
“My opinion prepared for the court concludes that the current indictment procedures violate traditional standards of equal protection. I am, of course, in agreement with the majority of my colleagues on that issue.
“Nevertheless I am taking the liberty of explaining why, if ours were not a collegial body and mine was the responsibility alone, I would apply a new and refined test.”
However, VanDyke has conceivably devised a new technique: the author of a majority opinion penning what amounts to a parodic dissent.
Copyright 2022, Metropolitan News Company