Federal 9th Circuit Rules Against CA County’s Pandemic Closure of Gun Stores

P. Gardner Goldsmith | January 21, 2022
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In a two-to-one ruling full of important touchstones, a panel of the Ninth Circuit Federal Court of Appeals ruled January 20 against Ventura County, California’s “pandemic” 2020 closure of gun and ammunition stores -- businesses that the county government had deemed “non-essential.”

Judges Lawrence Vandyke and Andrew Kleinfeld reversed the pro-lockdown ruling of the U.S. District Court for the Central District of California in the case of McDougall v. County of Ventura, and their ruling not only reminds the interminably – likely intentionally – blind authoritarians in politics, media, and academia that the inherent right to keep and bear arms not only is supposedly protected by the Second Amendment to the US Constitution, but also that such a right includes the right to freely acquire or offer a firearm.

As the court summary notes:

The panel reversed the district court’s order dismissing, for failure to state a claim, an action alleging that Ventura County’s COVID-19 public health orders mandating a 48- day closure of gun shops, ammunition shops, and firing ranges violated plaintiffs’ Second Amendment rights. The panel first held that the Orders’ 48-day closure of gun shops, ammunition shops, and firing ranges burdened conduct protected by the Second Amendment, based on a historical understanding of the scope of the Second Amendment right.

Here we have to engage in the obligatory reminder to the judges and their clerks that the right to self-defense (as it is with ALL rights) preexists the Second Amendment, and their phrasing should be “Second Amendment-protected right.”

And the murk thickens. As often happens, even in rulings that appear to uphold the Second Amendment, the rhetoric of the court and the actual substance of their arguments don’t match.

For example, summarizing Judge Kleinfeld, the court said:

Neither pandemic nor even war wipes away the Constitution.

Which looks beautiful.

But, in fact, Kleinfeld and Vandyke didn’t do the simple thing and look at the text of the Second Amendment as normative and unassailable – something the court statement noted above implies they did. Instead, they set up a system of arbitrary “check-points,” based on their government-based idea of “whether strict scrutiny applied.”

Remember that.

 

 

A portion of the Bill of Rights that clearly prohibits all government interference in the right to keep and bear arms can, according to this arbitrarily assumptive mindset, be attenuated, based on their belief that “strict scrutiny” of the Constitution is or is not appropriate.

Isn’t that kind of the point of the Founders having actually written the so-called “rules” for the government, in the first place?

If it is not to be taken strictly all the time, what use is it? Why bother having written rules?

The fatuous use of that lever, deciding if this or that portion of the US Constitution should be read “strictly”, is offensive to the very document that established the government for which these men work – all at taxpayer expense.

And, thus, we see Judge Kleinfeld taking this position as he and Vandyke digested the argument of Ventura County:

Second, Judge Kleinfeld wished to expand upon the absence of justification in the record for what the County did. There was no evidence whatsoever in the record to show why the particular inclusions and exceptions relating to firearms, ammunition, and shooting ranges reasonably fit the purpose of slowing the spread of the COVID-19 virus. The only document the County pointed to as justification was the edict itself, in which its Health Officer recited in the ‘Whereas’ clauses that ‘social isolation is considered useful’ for this purpose. The County provided no evidence and no justification for why bicycles could be purchased and delivered, for example, but firearms could not even be picked up at the storefront, or for why such outdoor activities as walking, bicycling, and golfing were allowed, but acquiring and maintaining proficiency at outdoor shooting ranges was not. The County has simply neglected to make a record that could justify its actions.

But, as one can see, if Ventura County HAD provided evidence and justification as to why there were differences, or if the County had banned all the other voluntary activities and closed those other shops, would the Court THEN have said that the County attack on the right to keep and bear arms was just, proper, and “Constitutional?”

Judge Kleinfeld also dismissed the argument of the County that the 1905 Supreme Court Decision in the case Jacobson v Massachusetts (allowing the state to fine a reverend who would not allow them to inject him with a vaccine) applied, because, the clerk noted, “Jacobson did not concern the specific, constitutionally enumerated right (to keep and bear arms) at issue, and essentially applied rational basis review.”

No mention that the Jacobson decision was wholly unconstitutional itself, and allowed the State of Massachusetts to claim the power to punish people who never committed any crime against another person (contrary to the Fifth, Sixth, and Eighth Amendments), to claim the power to check someone’s “vaccination status” (contrary to the Fourth Amendment), and claim the power to pretend that the interests of the state are “compelling” and take precedent over the rights of the individual.

And no mention that the Jacobson decision led to the appalling 1927 “Buck v. Bell” decision, which, again, imagined a “compelling state interest” and a god of “public health” to crush the rights of individual women and allow states to forcibly sterilize them.

For his part, Kleinfeld’s partner in the majority offered slightly more potent defenses of the rights at stake:

’[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.

But, of course, he watered down that statement by allowing for the erroneous concept of “immediate scrutiny”, writing:

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.

Further, the assumption that ANY shops can be closed by the state – be it by the legislature or by Governor Gavin Newsom’s Executive Orders – flies in the face of something that these judges are supposed to recognize: the Contract Clause, found in Article One, Section Ten, which states, in part, that no state may impair “the obligation of contracts.”

This means that ANY state interference with the fulfillment of private voluntary contracts – be they agreements between employees and employers, or sellers and buyers – is utterly forbidden by the text of the document that gives these judges their jobs.

And yet, perversely, some commentators might depict these two men as the “defenders of rights” in this dark affair.

This ruling reminds us that agents of the state repeatedly claim the power to determine whether your rights are "essential" or "non-essential," and, often, government “judges” offer pyrrhic victories that actually are threats to Natural Law.

Americans might want to tear off the blinders and look at the details of these rulings, because doing so allows them to see that celebration is not in order.

 

Related:  Intellectual Ammunition Pt 3: Armed With Logic and A Mistake by SCOTUS | MRCTV

 

 

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