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« FPC wins two lawsuits over COVID-19 gun store shut downs | Main | Gun ownership diversifying »

9th Circuit panel ruling on covid shutdowns of gun stores

Posted by David Hardy · 21 January 2022 07:07 PM

McDougal v. County of Ventura is the case. The ruling itself is nice, but the real amusement is in Judge VanDyke's concurrence in the opinion (which, as he notes, he also wrote).

"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." "Our circuit has ruled on dozens of Second Amendment cases, and without fail has ultimately blessed every gun regulation challenged, so we shouldn't expect anything less here."

"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....

"it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former. 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."

2 Comments | Leave a comment

Hillary's jock strap | January 21, 2022 11:18 PM | Reply

Footnotes are fun :)

11 I know this sounds a lot like rational basis review. After all, if a government interest would be “achieved [more] effectively absent the [challenged] regulation,” it’s hard to see how that regulation would survive even rational basis scrutiny. But trust us, this is heightened scrutiny. So very heightened.

Flight-ER-Doc | January 22, 2022 8:47 AM | Reply

Too bad the rule of law does not apply to the third-world shithole of California.

The next time they can do this, they will.

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