January 25, 2022
By Mark Chesnut
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit has ruled that an order closing gun stores and shooting ranges in Los Angeles and Ventura counties during the early part of the Covid pandemic was unconstitutional.
The lawsuit, McDougall v. Ventura County, was supported by several pro-gun organizations, including Gun Owners of America and the National Rifle Association, after the shutdown order was made back in 2020. At that time, a district court ruled that the forced closure of gun stores, ammunition shops and firing ranges didn’t violate the plaintiff’s constitutional rights.
However, the 9th Circuit didn’t agree, instead finding that the closure did violate law-abiding citizens’ right to keep and bear arms since buyers can only buy guns by going in person to gun retailers.
Writing for the court, Judge Lawrence VanDyke said that “… there is no reason that the loss of Second Amendment freedoms even for ‘minimal periods of time’ would not likewise constitute irreparable injury. This is especially true in the Second Amendment context, where the need for armed protection in self-defense can arise at a moments’ notice and without warning. People don’t plan to be robbed in their homes in the dead of night or to be assaulted while walking through city streets. It is in these unexpected and sudden moments of attack that the Second Amendments’ rights to keep and bear arms becomes most acute.”
VanDyke also expressed displeasure in the way the closure was handled for gun shops compared to other types of businesses.
“The governments’ designation of ‘essential’ businesses and activities reflects a government-imposed devaluation of Second Amendment conduct in relation to various other non-Constitutionally protected activities during times of crises, irrespective of any of the unique dangers presented by firearms, ammunition or firing ranges,” he wrote. “Such devaluation directly undermines the strong protections the Constitution was designed to protect, even through the ‘various crises of human affairs.’ Not only did Appellees fail to provide any evidence or explanation suggesting that gun shops, ammunition shops and firing ranges posed a greater risk of spreading Covid-19 than other businesses and activities deemed ‘essential,’ but they also failed to provide any evidence that they considered less restrictive alternatives for the general public.”
In a concurring opinion, Judge Andrew Kleinfeld wrote: “… the County bears the burden of establishing a ‘reasonable fit’ between its purpose of slowing the spread of the virus and its prohibition of sales of and practice at gun ranges with guns and ammunition. That purpose is legitimate, but the legitimacy of the purpose is not enough to abridge a constitutional right.”
Defendants have not yet announced whether they intend to appeal the decision to the full 9th Circuit court or to the U.S. Supreme Court.
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for the past 20 years.