…[9th Circuit Judge Lawrence] VanDyke concluded in the majority opinion for a three-judge panel, Ventura County’s policy [closing gun stores during the pandemic] plainly did not pass muster under “strict scrutiny,” which requires that a law be “narrowly tailored” to further a “compelling government interest.” Nor could the policy survive the less demanding “intermediate scrutiny,” which requires a “reasonable fit” between a law and an “important” or “substantial” government goal.
The two other panel members agreed with VanDyke that Ventura County’s suspension of Second Amendment rights was unconstitutional. But VanDyke predicted that most of his colleagues on the 9th Circuit would reach a different conclusion after agreeing to review the decision.
“Our circuit has ruled on dozens of Second Amendment cases,” VanDyke noted, “and without fail has ultimately blessed every gun regulation challenged, so we shouldn’t expect anything less here.” Those decisions include several in which the 9th Circuit overruled three-judge panels on issues such as the right to bear arms in public and the right to own magazines that hold more than 10 rounds.
Since VanDyke thought it was inevitable that the 9th Circuit would eventually uphold Ventura County’s [pandemic] shutdown of gun stores and ranges, he offered a 12-page “alternative draft opinion” to help achieve that foreordained result. His satire combines excessive deference to public health powers with blithe disregard for the right to arms—tendencies that the 9th Circuit has repeatedly displayed in previous cases.
As VanDyke sees it, the 9th Circuit creates the illusion of careful consideration by using a “two-step framework” that first examines the historical scope of the Second Amendment and then settles on a standard of review. This approach somehow always leads the court to apply intermediate scrutiny in a way that amounts to a “rational basis” test, a highly deferential standard that the Supreme Court has said is inappropriate in cases dealing with specifically enumerated constitutional rights.