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Old January 20, 2022, 09:37 PM   #1
Metal god
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9th circuit uses strict scrutiny on a 2nd amendment case :-o

https://cdn.ca9.uscourts.gov/datasto...0/20-56220.pdf

This case is from the 2020 Covid lockdowns in CA where many cities and counties were shutting down gun stores and shooting ranges . Well maybe we still have a chance here on the left coast .

SUMMERY
Quote:
In assessing the appropriate level of scrutiny, the panel
held that the district court erred by determining that
Jacobson v. Massachusetts, 197 U.S. 11 (1905), applied to
Appellees’ Second Amendment claim. The panel held that
Jacobson, which addressed a substantive due process
challenge to a state statute requiring smallpox vaccinations,
did not apply here because Jacobson did not concern the
specific, constitutionally enumerated right at issue, and
essentially applied rational basis review.

The panel declined
to determine whether the Orders were categorically unconstitutional and instead, because the Orders failed to
satisfy any level of heightened scrutiny, based its decision
on the traditional tiered scrutiny analysis.
The panel held that the Orders’ burden on the core of the
Second Amendment warranted strict scrutiny—which the
Orders failed to satisfy because they were not the least
restrictive means to further Appellees’ interest, especially
when compared to businesses that had no bearing on
fundamental rights, yet nevertheless were allowed to remain
open. The panel distinguished this case from Silvester v.
Harris, 843 F.3d 816 (9th Cir. 2016), which applied
intermediate scrutiny in assessing California’s 10-day
waiting period between purchase and possession of a
firearm. The panel held that the Orders at issue here imposed
a far greater burden than the 10-day delay at issue in
Silvester.

The panel held that the Orders also failed intermediate
scrutiny given that the County failed to provide any evidence
or explanation suggesting that gun shops, ammunition shops,
and firing ranges posed a greater risk of spreading COVID19 than other businesses and activities deemed “essential.”
Nor did Appellees provide any evidence that they considered
less restrictive alternatives for the general public. This could
not survive any type of heightened scrutiny where the
government bears some burden.......................

................Concurring, Judge VanDyke wrote separately to make
two additional points. First Judge VanDyke predicted that
this ruling will almost certainly face an en banc challenge
because that is what always happens when a three-judge
panel upholds the Second Amendment in this Circuit.

Second, Judge VanDyke stated that this Circuit’s Second
Amendment framework is exceptionally malleable and
essentially equates to a rational basis review. Judge
VanDyke figured there was no reason why he shouldn’t
write an alternative draft opinion that would apply this
Circuit’s test in a way more to the liking of the majority
court. That way, he could demonstrate just how easy it was
to reach any desired conclusion under the current
framework, and the majority of the court could get a jumpstart on calling this case en banc. To better explain the
reasoning and assumptions behind this type of analysis,
We've had a bunch of favorable 3 judge panel rules over the last few years . Maybe this one sticks but my guess is this will go en-banc . At minimum they will strike down the strict scrutiny aspect of this ruling .
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Last edited by Metal god; January 21, 2022 at 01:58 PM.
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Old January 21, 2022, 03:30 AM   #2
DaleA
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I found it very telling that they let bike stores stay open while gun stores shut down.

https://www.msn.com/en-us/news/us/fe...?ocid=msedgntp
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Old January 21, 2022, 07:00 AM   #3
zukiphile
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Thanks for posting that. Vandyke's concurrence is very entertaining.
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Old January 21, 2022, 11:32 AM   #4
natman
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Judge Van Dyke described the current situation with the 9th Circuit and California gun laws wonderfully in his dissent of the en banc overturn of Duncan v Bonta:

By my count, we have had at least 50 Second Amendment challenges since Heller—significantly more than any other circuit—all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us—from storage restrictions to waiting periods to ammunition restrictions to conceal carry bans to open carry bans to magazine capacity prohibitions—the common thread is our court’s ready willingness to bless any restriction related to guns. Respectfully, Judge Hurwitz’s claim that our judges’ personal views about the Second Amendment and guns have not affected our jurisprudence is simply not plausible. Res ipsa loquitur. [It speaks for itself] Pages 155-156
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Old January 21, 2022, 07:09 PM   #5
DaleA
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Quote:
By my count, we have had at least 50 Second Amendment challenges since Heller
Well, I'll put my 'dumb bunny' ears up and admit I don't understand what they mean by a 'Second Amendment' challenge.

Is a 'Second Amendment' challenge:
A. A request for more, tighter gun control and regulations
or
B. A request that gun control regulations be struck down or relaxed

I'd like to say I appreciate the folk posting these rulings and it's on me that I'm having trouble comprehending this one. To me, challenging the 2nd would me asking for more gun control but that doesn't seem consistent with the rest of the paragraph.
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Old January 21, 2022, 07:35 PM   #6
Metal god
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Quote:
Well, I'll put my 'dumb bunny' ears up and admit I don't understand what they mean by a 'Second Amendment' challenge.
Isn't everything a challenge on appeal ? Whom ever brings the case up to the 9th is challenging the lower courts ruling . Not sure it needs to be specified that the original complaint was or was not unconstitutional it's simply a challenge to the last courts ruling ? When it comes to the 9th , it doesn't seem to matter how , what or who is challenging the last ruling . The 9th always rules in favor of the restrictions in the end either upholding or striking down the last ruling .

Quote:
I'd like to say I appreciate the folk posting these rulings and it's on me that I'm having trouble comprehending this one. To me, challenging the 2nd would me asking for more gun control but that doesn't seem consistent with the rest of the paragraph.
You might be right as to the wording but as of late there has been several cases that went are way . Meaning striking down gun control laws which promptly get over turned with an en banc challenge . FWIW most cases regardless of type are heard by only a 3 judge panel at the 9th . The overwhelming majority of those cases are excepted and become precedent . There can be what's called and en-banc review of the 3 judge ruling . En-banc is when one of the parties ask for that or any judge at the 9th can request a rehearing en-banc which is the full court rehearing to double check the 3 judge ruling was correct .

What he is pointing out is every one of those 50 3 judge rulings that struck down a gun control measure as unconstitutional or upheld a favorable ruling
has been reversed through an en-banc rehearing . Not only does the 9th circuit disproportionately grant en-banc rehearing's in 2nd amendment cases compared to all other types of cases . They have ALWAYS ruled in favor of the state in upholding the gun law/regulation they are reviewing . Not once has the 9th's final ruling ever been in favor of less restrictions in the last 50 cases since heller which "was" are big win .

The biggest quoted line from heller I've seen the 9th use is . ( paraphrasing )The 2nd does not grant any person to carry any weapon , anywhere for any reason . Boy they have latched on to that to say pretty much any restriction is gtg .
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Last edited by Metal god; January 22, 2022 at 07:39 PM.
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Old January 22, 2022, 12:24 PM   #7
natman
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Quote:
Originally Posted by DaleA View Post
Well, I'll put my 'dumb bunny' ears up and admit I don't understand what they mean by a 'Second Amendment' challenge.
He doesn't mean a challenge to the Second Amendment, although I can see how it could easily be interpreted that way.

He means a challenge to an existing law based on the Second Amendment.
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Old January 22, 2022, 01:24 PM   #8
Metal god
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Quote:
He means a challenge to an existing law based on the Second Amendment.
See now that's how you say something with out writing three paragraphs trying to say the same thing . lol
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Old January 22, 2022, 04:00 PM   #9
DaleA
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Ah Ha! Thanks for the explanation guys. This is one of the many reasons I really like this site.
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