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New Lawsuit Challenges San Jose Ordinance That Would Effectively Price Guns out of the Hands of Citizens

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A poll tax was not an American invention. It was a holdover from the crown. After the Civil War, it was used in southern states to keep blacks from voting. States claimed the motive wasn’t to keep citizens from the polls, rather, to collect revenue. In truth, it was designed to “hurt” and place a right out of the reach of citizens.

Harper v Virginia Bd of Elections found poll taxes unconstitutional via the 14th Amendment.

The Second Amendment was a wholly American invention.  A right of citizens to keep and bear arms was unprecedented in the Eighteenth Century. The founders had fought a long war against the crown and prevailed only because private citizens carried private arms into war to shake the crown’s yoke. There is a common misperception that the Second Amendment was the second amendment proposed. It wasn’t, but it ended up following the First Amendment, and perhaps by providence.

Following a mass shooting by a disgruntled rail worker who killed 9 then turned the gun on himself, the San Jose City Council passed, by a 10-1 vote, an ordinance that is the equivalent of a poll tax on legal guns. The proposed tax (called a “gun harm reduction fee”) would generate income for the city that the city would then funnel to nonprofit anti-gun advocacy groups. The ordinance also requires gun owners to buy private “liability” insurance. The City of San Jose intends to make it very expensive to own a gun. How that makes a city safer is the mystery.

The ordinance has now been challenged with a lawsuit filed in federal court yesterday, requesting injunctive relief and a declaratory judgment. The Dhillon Law Firm, for plaintiffs  NATIONAL ASSOCIATION FOR GUN RIGHTS, INC., a non-profit corporation, and MARK SIKES have sued the City of San Jose and the city manager. Lead counsel for this lawsuit is Harmeet Dhillon.

The lawsuit offers several arguments, all compelling and on point. In summary:

  1. The ordinance, via the gun tax, requires gun owners to fund heretofore unknown private advocacy groups thus compelling each gun owner to fund speech guns owners likely don’t agree with. No citizen is compelled to fund political speech they disagree with. The Complaint states: “The Defendants may not require Plaintiffs to pay fees to non-profits when those fees are going to be used to fund activities of ideological or political nature with which Plaintiffs disagree. See Keller v. State Bar of California, 496 U.S. 1, 13 (1990).”
  2. Laws pertaining to gun ownership are preempted, not just by the United States Constitution, but by California’s Penal Code as well. In short, the city has no right to regulate gun ownership.
  3. The strongest argument is, of course, founded on the Second Amendment. The seminal case is District of Columbia v Heller, followed by United States v. Masciandaro, which cited Heller. The ordinance is intended to make gun ownership onerous, prohibitive, and expensive.

The Complaint further states:

“[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, Ill., 561 U.S. 742, 778 (2010).

Even in the face of “the problem of handgun violence in this country,…the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

 “The upshot of [Heller and McDonald] is that there now exists a clearly-defined fundamental right to possess firearms for self-defense within the home.” United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011).”

The Complaint also quotes  Minneapolis Star and Tribune, in which the court said:

“A tax that burdens rights protected by the [Constitution] cannot stand unless the burden is necessary to achieve an overriding governmental interest.”

Before the ordinance was passed by the city council, Mayor Sam Liccardo said:

“When we think about the horrible mass shootings, I don’t pretend to know that we could have stopped it or not. But if in fact, we could have delivered some mental health services, there may have been a chance, “That’s the point of this [legislation].”

The point of the ordinance, in reality, is to price gun ownership out of the hands of law-abiding private citizens with a “poll tax” on guns. The injunction should be granted but it is far from guaranteed. San Jose resides in the 9th District Court of Appeals, thus if the injunction is granted it is likely that San Jose will appeal to the ultra-liberal Court of Appeals.

The NYC Second Amendment infringement case you're not hearing about

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Cavalier Knight lives in New York City. He currently holds an FFL issued by the ATF and has his Class III endorsement. Knight’s business, as noted in his own words on his webpage, specializes “in providing quality firearms and tactical ballistic protection.” The items Knight mostly focuses on selling would be plate carriers and ballistic armor, although he has bigger aspirations. He’s a registered vendor able to sell goods and conduct commerce with the City of New York. Even though Knight has his federally issued FFL, he can’t deal in firearms in New York City. This situation he’s in intrigued me, so we had a chat.

My issue is I’ve had an FFL since about 2011. When I first went to get it, they denied it because they said I didn’t have the State Firearm Dealer’s License from the City. And I didn’t have a location. But, you can’t get the State Firearm Dealer’s License unless you have an FFL first. And, the ATF allows you to keep inventory at offsite storage locations, and you can go to gun shows and do stuff in e-commerce. So you don’t really need a store, so they [ATF] reversed my FFL [denial] and ended up giving it to me. But the City of New York’s thing is they have this caveat where they won’t issue the State Firearm Dealer’s License to you unless you have a physical store.

Immediately the situation made me think of the laws in New Jersey being akin to this, where there was a crack-down on so-called “kitchen table” dealers. These anti-freedom jurisdictions get off on subverting the freedoms and liberties of the citizens they’re supposed to be serving. What difference does it make if a dealer sells a firearm on his kitchen table or from across a glass cabinet in a store? I once visited an impressive in-home FFL and his basement was a Mecca of firearms.

This requirement is just flat out discrimination. This is an economic sanction of sorts. Like everything else in a corrupt system, if you don’t have the money, you can’t come to play.

To make sure we were on the same page, I asked Knight where in New York City he was, remembering the five boroughs all fall under the same crappy laws. He told me smack dab in the middle of the viper pit (my words, not his), Manhattan. 

I could count on two fingers the number of locations I’ve personally visited in Manhattan where I laid my hands on firearms. One being the Beretta Gallery, a location that’s difficult to call a “gun dealer” in the sense of what most of America knows as a “gun dealer”. The Beretta Gallery is very-much-so like a shotgun museum of sorts. I implore people who do decide to wade through the muck and filth of the City to visit that location. The other location was an exclusive establishment that I’m just not going to talk about. But how many FFLs are there really in New York City?

According to the ATF, the entire State of New York has 2,105 registered FFLs of all types. Knight’s FFL is one of nine in the entirety of New York, NY, Manhattan, aka the Big (spoiled) Apple. This requirement that all FLLs must have a brick and mortar location before they’re issued a license by the city is absurd. Even worse; this requirement, is not actually in the law according to Knight.

There’s no requirement for a physical store under the law, penal law, federal law. Because I’m an FFL, I can just go to gun shows, never sell over the counter. I can sell through the mail order, never sell over the counter sale, to do e-commerce, never do a transfer. I don’t have to do any of that. I can pick which one I want. I said “You can’t take the parts that I can do and just stick me in the store.”

Where does this leave Knight? His only option left is a court challenge. Knight mentioned he’d been an FFL since around the year 2011. Keeping that in mind, his story is actually pretty long, winding, and might make your head spin. We’re going to cut to what litigation he’s involved in today.

On July 8, 2021 Knight filed his most recent brief in the Appellate Division, First Judicial Department Case No. 2020-04746. His brief presented six questions, with the some of the more compelling being:

(1) Can Appellees use “Title 38 – R.C.N.Y. and/or NYC Administrative Code” to prohibit “Federal Firearms Licensees 01” from selling firearms in “intrastate” and/or “interstate” commerce via “mail-order” and/or “e-commerce?” Although it is an Article III economic “injury-in-fact,” and violates the “(Dormant) Commerce Clause,” “Title 18 – U.S.C. § 923, and “Title 42 – U.S.C. § 1983.”

(2) Can Appellees prohibit “Federal Firearms Licensees 01” from engaging in “intrastate” commerce at “gun shows?” By refusing to issue a state “Firearms Dealer’s License” to “applicants” because they do not possess a “brick & mortar” store in the City of New York? In violation of “Title 27 – C.F.R. § 478.100(a)(1)” and/or “NYS PL §§ 400.00(1)(n)-(8).”

(3) Can Appellees mandate that all “Federal Firearms Licensees 01” must possess a “brick & mortar” store in the City of New York? As a prerequisite to apply for a state “Firearms Dealer’s License” to sell “handguns and/or ammunition” and/or “Carry Business License” to “handle” inventory? In violation of “NYS PL §§§ 400.00(1)(n)-(2)(f)-(8).”

Those are great questions to ask. This is clearly another regulatory scheme. The matter of the City not issuing a State license unless the applicant fulfills whatever arbitrary requirement set forth by bureaucrats is one ripe for judicial review. Racketeering and corruption truly go hand in hand in the City.

When I asked Knight who was representing him I was surprised to learn he’s doing this pro se, which makes the 87 page complaint look even more impressive. Finances are a factor in Knight’s decision to represent himself, but that’s not the only reason. As it turns out, once upon a time Knight did have a lawyer in his first case with the City.

Oh, let me get back to the beginning, you must have this part of it. In my 2014 application, which I was denied. And I had my lawyer that did an appeal of the denial. My lawyer was John Chambers. Come to find out my investigating officer [was] Richard Ochetal. He was the officer that turned state’s evidence on the NYPD scamming for selling carry business licenses. My lawyer…listen, my lawyer who filed my appeal of my disapproval, he got arrested and indicted in the same scam. He went to jail for a year. My lawyer John Chambers, named John Chambers, he went to jail for one year and lost his law license. Oh I’m like, like how is my NYPD investigator and my lawyer, both conspiring to sell carry business licenses to anybody who can afford it, yet you won’t issue one to an FFL?

Knight’s case is not a “carry” case per se. Knight’s case is more or less an interstate (and intrastate) commerce case, where the City is limiting his ability to conduct the lawful commerce he’s federally licensed to do. His plans included keeping the firearms at a location outside of the City of New York in New Jersey, where people are lawfully allowed to store them for the purpose of safe keeping. The situation Knight is in isn’t even one where the City of New York can make some claim that he shouldn’t be able to keep his inventory in his home office, because that’s not his intention.

The biggest kicker to this scheme/scam that the City of New York is playing on Knight? Requiring Knight to pay all the up-front costs of establishing a brick-and-mortar store before acting on his license application. 

…how are you going to force me to open a store, which is a cost prohibitive in the City of New York before I can even apply for the license that allows me to conduct business? What happens if you deny my license? What happens to my door? Yeah, that’s illegal. They can’t make me open a store before I even have the license.

On December 7, 2021 Knight got the notice that his petition was denied. Reading through the order, it seems details of the case were conflated by the judge. From the denial:

Petitioner’s challenge to respondents’ denial of his application for a carry business firearms license, which would allow him to carry concealed handguns in public places (Penal Law § 400.00[2][c]-[f]; 38 RCNY 5-23[b]), is not ripe for review. Although petitioner contends that he requires a concealed firearm for purposes of maintaining his business – through which he sells firearms, among other things – he has not applied for a New York firearm dealer’s license, and respondents have not issued any final and binding determination on any such application (see Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520-521 [1986], cert denied 479 US 985 [1986]). Nor does it avail petitioner to argue that filing such an application would be futile, as he offers no support for that contention (see e.g. Matter of Guddemi v Rozzi, 210 AD2d 479, 480 [2dDept 1994], appeal dismissed 85 NY2d 966 [1995], lv denied 86 NY2d 706 [1995]).

The whole core of Knight’s case surrounded the denial of being issued a State license. Perhaps the system is well-aware of the quagmire they’re in? Can’t bring on destruction of the whole machine, can we? What’s next? Where does this leave Knight?

And I think that’s two things going to happen here. Either, I’m going to submit this paper to the New York State Court of Appeals. And they might turn around and do the same thing they did in a Supreme Court case where we couldn’t take our guns out the city and go change the laws when I get close to the goal, they might issue my license to moot the case.

If they issue it, I’ll take my license. But I will still ask the court, can they pursue the parts of my case that are not affected by this because I don’t technically have a charity case. I have an interstate commerce case, which is a cousin to a carry license. It just so happened to be the City requires me to need this license. But what I’m doing, but they won’t issue it, which on the back end inhibits interstate commerce. So I would push for the other parts of the case to proceed. Because they’re not…they’re not going to just pay me off like that. Even though I made a statement. No, you’re not going to just pay me off and I’m disappearing..I just get my license and no other FFL ever knows this is happening.

This is the case you’re not hearing about. The case of Cavalier Knight, pro se, fighting New York City. When he went in armed with a lawyer, he found out afterwards that his representation was wrapped up in one of the biggest corruption scandals concerning the Second Amendment with those he was challenging for being corrupt.

Talk about strange bedfellows. I don’t know if we should be calling Hollyweird to pitch a story or a civil rights attorney! What do we think the new mayor of New York City would think of this egregious situation in his city? What’ll come of Knight and his case? We don’t know. However, what I can tell you is that we’ll be following his story because someone has to. Wishing Mr. Knight a victorious journey as he forges on.

Massachusetts AG candidate wants 2nd Amendment repealed

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Massachusetts’ current Attorney General is no fan of the right to keep and bear arms, but she looks like a Second Amendment stalwart compared to one of the Democrats vying to replace her.

Maura Healey, who used her position as A.G. to impose a sweeping gun ban based on her new interpretation of the state’s decades-old ban on so-called assault weapons, is now running for governor in this year’s elections, and among the attorneys and politicians hoping to become the state’s next Attorney General is Shannon Liss-Riordan, a Boston-based labor attorney and advocate for repealing the Second Amendment.

Liss-Riordan’s call for repeal came less than three years ago, when she was mounting a failed campaign to become the Democratic candidate for U.S. Senate in 2020. In the wake of high-profile shootings in El Paso, Texas and Dayton, Ohio, the candidate said that nothing less than the eradication of the right to keep and bear arms would suffice to keep Americans safe.

“Politics as usual in Washington has been devastating for the victims of gun violence and their families. I am tired of half steps, old ideas and fake urgency around the problem we face: the presence of guns in our communities. Enough is enough. It is time we take real action and repeal the Second Amendment,” Liss-Riordan said in a statement.

“I agree with the late Justice John Paul Stevens: the Second Amendment is ‘a relic of the 18th century.’ We need leaders in Washington who understand that, and have the courage and the will to fight to repeal the Second Amendment,” she added.

Ironically, David Guarino, a political consultant for several Massachusetts Democrats, including Maura Healey, bashed Liss-Riordan’s statement at the time, calling it a “new low bar for primary voter pandering with ideas going nowhere,” which also is a pretty good description of Liss-Riordan’s Senate campaign. The labor lawyer formally declared her challenge to incumbent Ed Markey in May of 2019, but withdrew from the Democratic primary in January of 2020 after raising a little more than $1.1-million, which included a $1-million dollar loan to the campaign by Liss-Riordan herself.

Will she be any more successful in her quest to become the next Attorney General in Massachusetts? Once again, the biggest challenge is likely going to come from her primary opponents, because at the moment not a single Republican has stepped up to announce their own candidacy.

It’s been more than 50 years since a Republican served as AG in Massachusetts, which I’m sure weighs heavily on any potential conservative candidate. Still, with at least one of the Democratic candidates on the record in support of repealing the right of the people to keep and bear arms, it would be great if there was someone in Massachusetts who was willing to challenge that terrible and tyrannical idea on the campaign trail. After all, in 2018 just 37% of Massachusetts Democrats agreed with Liss-Riordan, and support for repealing the Second Amendment was under 30% among all Massachusetts voters, which certainly suggests an opening for a Republican candidate if Liss-Riordan captures her party’s nomination.

Maybe Liss-Riordan’s current campaign will suffer from the same failure-to-launch as her aborted 2020 Senate bid, but I doubt that any of her primary opponents are going to be much better when it comes to protecting and preserving the Second Amendment. It may be an uphill fight to elect a Republican as Massachusetts’ next AG, but it’s definitely a political battle worth having given what’s at stake.

Data shows there’s more diversity at a gun range than a university faculty lounge

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“Gun-ownership in America is diversifying, because of safety fears,” says a headline over at The Economist. As those of us in the Second Amendment community have known for a while, the sociopolitical climate since the start of the pandemic – egregious criminal–coddling behavior by the state, releasing dangerous prisoners because of COVID, nationwide “fiery but mostly peaceful” riots, rising violent crime, looting / shoplifting, hate crimes, falling trust in law enforcement – contributed to a sudden surge in gun purchases by groups historically not inclined to own them. The Economist reported the following:

Of the 7.5m Americans who bought firearms for the first time between January 2019 and April 2021—as gun-buying surged nationwide—half were female, a fifth black and a fifth Hispanic, according to a recent study by Matthew Miller of Northeastern University and his co-authors. 

The 7.5 million number may well be a low estimate; one estimate from the NSSF is that there were 8.4 million new gun owners in 2020 alone. As I’ve written before in these pages, adding up numbers for 2020 and the first half of 2021 points to a potential 11.6 million first-time gun owners. The team here at Bearing Arms has written a lot about growing diversity in the Second Amendment community. We see this not only in data collected nationally and over the long-term, but also experience it first-hand at gun ranges. (As an immigrant who grew up without guns and didn’t touch one well into his adult life, I’m living proof of this demographic shift myself.)

However, diversity is a whole lot more than ethnic bean counting or about the superficial differences – religion, sexual orientation, etc. – among us. What counts the most, in my opinion, is diversity of thought and opinion, and the ability to express those freely without the fear of retaliation or retribution. This is where I think gun owners are simply outstanding; respect for individual freedom, for not treading on someone else lest our freedoms be tread upon, appears to come naturally to lawful gun owners. There is some data on political diversity among gun owners. Anecdotally speaking, the gun owners at my local club cover the gamut from traditional blue-collar tradesmen to Ph.D. holders, from the MAGA coterie to Medicare-for-All supporters.

Contrast that with a typical university faculty lounge and the difference is night and day. There is hard data showing how limited diversity is among university faculty. They may look different, have different national origins or sexual orientations, but politically they are incredibly alike. There’s also plenty of publicly available data that shows how faculty donations to candidates for office is overwhelmingly left-wing. Consider these recent examples: 96% at Harvard University, 97% at Yale University, and 98% at Cornell University. 

Intolerance of divergent viewpoints to the point of active discrimination is shockingly high among university faculty who themselves take advantage of academic freedom when they’re in hot water for expressing something unpalatable to the taxpaying public. Those in the conservative minority outgroup keep their mouths shut and their heads down and go about their business for fear of retaliation.

In contrast to the Ivory Tower, the broad diversity among gun owners means that gun control will have a harder time in the future. The Economist makes the below conclusion based on sales numbers and gun control polling:

The broadening tent is good for manufacturers and bad for gun-control advocates. Owners are more politically active around gun issues than non-owners. Already it may have had an effect. According to polling by Gallup, in 2021 support for stricter laws dropped by five percentage points, to its lowest in seven years.

That’s a reason to celebrate.

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

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As a rule, few things are less likely to be the source of humor than court decisions. Sometimes there are excellent puns or low-key snark, but you don’t find belly-laugh material. Usually.

Last Friday, a panel of the Ninth Circuit published a decision on a complaint arising from Ventura, California, that covered both the COVID panic and the Second Amendment. During the height of the COVID panic, that county ordered firing ranges, and gun shops closed. Presumably, this is because the Wuhan virus has a particular affinity for recreational venues. Several groups and individuals sued to overturn the order as it targeted an enumerated right under the U.S. Constitution.

The panel considering the case consisted of Judges Andrew Kleinfield (George W. Bush), Ryan Cooper (Donald Trump), and Lawrence VanDyke (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. The County provided no evidence and no justification for why bicycles could be purchased and delivered, for example, but firearms could not even be picked up at the storefront, or for why such outdoor activities as walking, bicycling, and golfing were allowed, but acquiring and maintaining proficiency at outdoor shooting ranges was not. The County has simply neglected to make a record that could justify its actions. Neither pandemic nor even war wipes away the Constitution.

In fact, the panel also concluded that in addition to failing “strict scrutiny,” the Ventura rule could not meet any known standard of scrutiny. Good news, right?

Except the Ninth Circuit is notorious for the way it treats the Second Amendment as some sort of red-haired step-child of Constitutional right. As a result, one is hard-pressed to find a case where a pro-Second Amendment decision 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?). Yet, in March 2021, the entire Ninth Circuit ruled that the Hawaii law was totes okay, contrary to Supreme Court precedent.

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. This is from his concurrence.

I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it. But I write separately to make two additional points. The first is simply to predict what happens next. 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 follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit. 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) (overturning the three-judge panel); Peruta v. Cnty. 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 v. Becerra, 970 F.3d 1133, 1138 (9th Cir. 2020), on reh’g en banc sub nom. Duncan v. Bonta, 19 F.4th 1087 (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 at 1165 (VanDyke, J., dissenting).

My second point is related 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.”). Our court normally refers to our legal test as a two-step inquiry, see United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 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). The complex weave of multi-prong analyses embedded into this framework provide numerous off-ramps for judges to uphold any gun-regulation in question without hardly 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. A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must 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. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win 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.

Then Judge VanDyke goes on to write an opinion that the Ninth Circuit can use to overturn this ruling.

Like every locality in the United States, Ventura County was forced to rapidly respond to an unprecedented pandemic. As the death toll for its citizens continued to rise, the county temporarily closed firearm stores and firing ranges, but lessened, and then eventually withdrew, those restrictions when the pandemic allowed. 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.

And there is this hilarious 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. They exist to expand the power and reach of the administrative state. While it might not be possible to change what they rule, we should not act as though we are under any moral or ethical obligation to nod silently as they violate our rights. Instead, they need to be lampooned and ridiculed, and I hope Judge VanDyke makes it his personal cause to do just that.