Metropolitan News-Enterprise


Wednesday, March 9, 2022


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Ninth Circuit Judge VanDyke’s Prediction Comes True

Court to Hear Gun-Ban Case En Banc


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday validated the prediction by Circuit Judge Lawrence VanDyke that a rehearing by the court sitting en banc would be granted in a case that had been heard by a three-judge panel in which he wrote that a 48-day closure of gun shops and firing ranges, in response to the COVID-19 pandemic, was constitutionally impermissible.

An order announced that by vote of the non-recused active members of the court, the opinions filed on Jan. 20 were vacated.

VanDyke prediction came in a concurring opinion in which he said:

“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.”

Second Point

His second point was that the Ninth Circuit “can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review.” He remarked:

“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.”

VanDyke provided a tongue-in-cheek draft of an opinion upholding the 48-day ban by Ventura County which his majority opinion had overturned, concluding the discourse by telling his colleagues:“You’re welcome.”

Burdens Protected Conduct

In his majority opinion, VanDyke declared that strict scrutiny should be applied, but that orders shuttering gun shops while allowing other businesses such as bike shops to stay open, “clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.”

Joining in VanDyke’s majority opinion was Judge Ryan D. Nelson. Senior Judge Andrew J. Kleinfeld wrote a concurring opinion in which he disassociated himself from VanDyke’s call for the application of strict scrutiny—saying that “we need not reach the question.” He declared:

“If, under intermediate scrutiny…, a child molester cannot be prohibited from accessing social media sites, because such a prohibition excessively restricts access to legitimate speech, then a fortiori a legitimate gun purchaser cannot have his constitutional right to acquire firearms and ammunition, and to develop and maintain proficiency with them at outdoor shooting ranges, suspended indefinitely under a ‘broad stroke’ prohibition riddled with exceptions for other quite similar activities, without more from the government other than the assertion that ‘the law must be this broad’ to serve its purpose.”

The case is McDougall v. County of Ventura, 20-56220.

Los Angeles Case

Decided on the same day as McDougall was a challenge to an 11-day closure order in Los Angeles County. In a memorandum opinion, VanDyke and Nelson said:

“[A]n 11-day total ban on law-abiding citizens’ ability to practice with firearms at firing ranges or acquire firearms and ammunitions at allwhich the Orders clearly indicated could be perpetually extended if the County so decided—severely burdens the core of the Second Amendment right at a time of crisis, precisely when the need to exercise that right becomes most acute.”

That case is Martinez v. Villanueva, 20-56233.


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