Ninth Circuit Trump Appointed Judge Lampoons His Entire Circuit Over Its Treatment of the Second Amendment – Opinion

It is unlikely that court decisions will be the source for humor, but it does happen. Sometimes there are excellent puns or low-key snark, but you don’t find belly-laugh material. Usually.

The Ninth Circuit issued a decision last Friday on Ventura’s complaint. It covered the Second Amendment and the COVID panic. This county shut down gun shops during the COVID panic. This is likely because of the Wuhan virus’s affinity for recreational areas. Several individuals and groups sued in order to reverse the order, which targeted an enumerated right of the U.S. Constitution.

The judge panel that considered the case included Judges Andrew Kleinfield and Ryan Cooper (George W. Bush), as well as Lawrence VanDyke and Donald Trump. They concluded in a relatively straightforward manner that because the Second Amendment is a guaranteed right, any regulation must pass a “strict scrutiny” standard regardless of what the public health nazis wished to impose.

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. For example, the County did not provide any evidence or justification as to why bikes could be bought and delivered but guns could not be picked up at the shopfront. It also didn’t explain why outdoor activities like walking, biking, and shooting were permitted but not acquiring proficiency at outdoor ranges. The County simply failed to provide any record which could support its actions. The Constitution can’t be destroyed by war, pandemic, or any other means.

In fact, the panel also concluded that in addition to failing “strict scrutiny,” the Ventura rule could not meet any known standard of scrutiny. This is good news!

Except for the Ninth Circuit’s treatment of the Second Amendment, the Ninth Circuit has a reputation of being a step-child to Constitutional right. You will find very few cases where an anti-Second Amendment ruling has survived an En banc review. For instance, in 2018, a Ninth Circuit panel consisting of Diarmuid F. O’Scannlain (Ronald Reagan), Richard R. Clifton (George W. Bush), and Sandra S. Ikuta (George W. Bush) ruled that a Hawaii law that limited the right to possess weapons to the confines of one’s own home was overly restrictive (ya think?). The entire Ninth Circuit, however, ruled in violation of Supreme Court precedent that the Hawaii law was okay.

After disposing of the actual case under consideration, Judge VanDyke went on to skewer his own Circuit over its consistent “results-oriented” Second Amendment jurisprudence. His concurrence is here.

Since I wrote the article, I am 100% in agreement with it. However, I want to add two points. This is to simply predict the next step. 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 is based on the fact that a circuit-wide three-judge panel will always uphold the Second Amendment. See, e.g., Young v. Hawaii, 896 F.3d 1044, 1048 (9th Cir. 2018), on reh’g en banc, 992 F.3d 765 (9th Cir. 2021). (en banc). (turning three-judge panel); Peruta. of San Diego, 742 F.3d 1144, 1147 (9th Cir. 2014), on reh’g en banc, 824 F.3d 919 (9th Cir. 2016) (en banc), (same); Duncan. Becerra., 970 F.3d 1133. 1138 (9th Circuit. 2020), on reh’g en banc sub nom. Duncan v. Bonta 19 F.4th1087 (9th Cir. 2021) (en banc) (same). 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. See Duncan 19 F.4th 1165 (VanDyke J., dissident).

Second, my second point is connected 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. See Id. at 1162–63; Mai v. United States, 974 F.3d 1082, 1101 (9th Cir. 2020) (VanDyke, J., dissenting from the denial of rehearing en banc) (“Particularly in [the Second Amendment] context, we have watered down the ‘reasonable fit’ prong of intermediate scrutiny to little more than rational basis review.”). The court usually refers the our legal test to as a 2-step inquiry. United States, v. Chovan 735 F.3d at 1127, 1136 (9th Circuit). 2013), although it may be better understood as a “tripartite binary test with a sliding scale and a reasonable fit”—a test that “only a law professor can appreciate.” Rhode v. Becerra, 445 F. Supp. 3d 902, 930 (S.D. Cal. 2020). These multi-prong assessments, which are interwoven into the framework, provide many off-ramps to judges for upholding any gun-regulation without breaking a sweat. See Duncan, 19 F.4th at 1164–65 (VanDyke, J., dissenting).

Given both of these realities—that (1) no firearm-related ban or regulation ever ultimately fails our circuit’s Second Amendment review, and (2) that review is effectively standardless and imposes no burden on the government—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. First, any judge, or group of judges, must create a call memo. Then, if an en banc call succeeds, the majority must then 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. So I can show just how easy it can be to come up with any result under the current framework and so that our majority can start calling this case En banc. This is a win/win scenario for everyone. To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”). The path is well-worn, and in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit’s stamp of approval.

The Ninth Circuit then has Judge VanDyke write an opinion to invalidate this ruling.

Ventura County, like every other locality in America, had to quickly respond to an unprecedented pandemic. The death toll continued to climb and the county closed its firearm shops and firing ranges temporarily. However, it gradually eased and eventually removed those restrictions as the pandemic permitted. Plaintiffs may disagree with Ventura County’s decisions, but it is not our job—now with the benefit of hindsight—to dictate what Orders we would have found best. Local officials “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” S. Bay United Pentecostal Church, 140 S. Ct. at 1614 (Roberts, C.J., concurring) (citation omitted).

For these reasons, we affirm the district court’s dismissal of Plaintiffs’ complaint for failure to state a claim.

You’re welcome.

There is also this funny footnote.

Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.

I don’t think there is much of a chance that Judge VanDyke will succeed in shaming the entire Circuit into leaving this decision alone, but I have to appreciate his style. These judges really don’t care about freedom or liberty. These judges exist only to increase the power and reach the administrative state. It might not always be possible for them to make changes to their rules, but we shouldn’t act like we have any moral obligation to ignore the fact that they are violating our rights. They should be ridiculed and lampooned, and Judge VanDyke will do that.

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