9th Circuit judge writes opinions for and against constitutionality of pandemic gun-store closings

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A federal appeals judge took two positions on pandemic gun-store closings Thursday with the aim of making a point about his court’s “exceptionally malleable” approach to the Second Amendment.

The judge is Judge Lawrence VanDyke of the 9th U.S. Circuit Court of Appeals at San Francisco.

In his Jan. 20 opinion for the panel, VanDyke revived a Second Amendment lawsuit challenging the 48-day closing of gun stores, ammunition shops and firing ranges in Ventura County, California.

VanDyke’s opinion said the closings violated the Second Amendment when evaluated under strict scrutiny and intermediate scrutiny.

He took the opposite position in an “alternative draft opinion.” The intent, he said tongue in cheek, was to help colleagues who would find no Second Amendment violation in a near certain en banc review.

Law.com, Reuters and the Associated Press have coverage.

VanDyke began his concurrence this way:

“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 9th Circuit, this ruling will almost certainly face an en banc challenge. …

“My second point is related to the first. As I’ve recently explained, 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.”

To assist his “hard-working colleagues,” VanDyke said he would 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.”

The alternative draft rejected strict scrutiny in favor of intermediate scrutiny. But VanDyke included footnotes that took digs at the alternative analysis.

One example: “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.”

Another example was a footnote to a sentence saying there wasn’t a severe burden on anyone’s ability to exercise Second Amendment rights. The footnote said: “‘Severe’ is a very strong word, and a real workhorse when italicized.”

VanDyke concluded his concurrence, dubbed a “fauxpinion by the Volokh Conspiracy, with two words: “You’re welcome.”

In another Jan. 20 opinion, the same panel held that a gun-store closure order in Los Angeles County, California, violated the Second Amendment, citing the reasons set forth in the Ventura County case.

The Ventura County case is McDougall v. County of Ventura. The Los Angeles County case is Martinez v. Villanueva.

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