For 48 days in the spring of 2020, Ventura County, California, effectively prohibited the purchase of firearms or ammunition. It also barred people who already owned firearms from visiting gun ranges to hone their skills and prevented them from taking the steps necessary to obtain carry permits, which are legally required in California to exercise the right to bear arms outside the home. The county did all of this in the name of controlling COVID-19, although it simultaneously allowed many other activities that posed similar or greater risks of virus transmission.
Yesterday a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled that Ventura County’s decision to ban a wide range of firearm-related activities for a month and a half violated the Second Amendment. Applying essentially the same analysis in another case decided yesterday, the same panel ruled that Los Angeles County likewise violated the Second Amendment when it shut down gun stores for 11 days early in the pandemic.
The right to keep and bear arms, Judge Lawrence VanDyke observes in McDougall v. County of Ventura, “means nothing if the government can prohibit all persons from acquiring any firearm or ammunition….These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.”
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In a concurring opinion, Judge Andrew Kleinfeld emphasizes that Ventura County failed to offer any public health justification for the distinctions it drew. “Generally in the Anglo-American tradition, everything is permitted except what is expressly prohibited,” he notes. “The Health Officer’s orders instead prohibited everything except what they expressly permitted. The scope of the exceptions is thus critical to the orders’ constitutionality.” Yet there was no apparent rhyme or reason to those exceptions:
The exceptions included leaving one’s residence for outdoor activities such as bicycling and later golfing, but not shooting at outdoor gun ranges. Delivery of any “household consumer products” was excepted, but not delivery, even at the door of a licensed dealer, of guns or ammunition. “Hardware stores” were excepted, but apparently not if the hardware consisted of firearms or ammunition. Subsequent emendations to the orders allowed people to shop in person for cars and bicycles, and to take possession of firearms previously purchased and paid for….There is 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.