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,
