Kelly Ann McDougall v. County of Ventura

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY ANN CHAKOV MCDOUGALL, No. 20-56220
an individual and Trustee; JULIANA
GARCIA, an individual; SECOND D.C. No.
AMENDMENT FOUNDATION; 2:20-cv-02927-
CALIFORNIA GUN RIGHTS CBM-AS
FOUNDATION; FIREARMS POLICY
COALITION, INC.,
Plaintiffs-Appellants, OPINION
v.
COUNTY OF VENTURA; BILL AYUB;
WILLIAM T. FOLEY; ROBERT LEVIN;
VENTURA COUNTY PUBLIC HEALTH
CARE AGENCY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted October 18, 2021
Pasadena, California
Filed January 20, 2022
Before: Andrew J. Kleinfeld, Ryan D. Nelson, and
Lawrence VanDyke, Circuit Judges.
2 MCDOUGALL V. COUNTY OF VENTURA
Opinion by Judge VanDyke;
Concurrence by Judge Kleinfeld;
Concurrence by Judge VanDyke
SUMMARY *
Second Amendment
The panel reversed the district court’s order dismissing,
for failure to state a claim, an action alleging that Ventura
County’s COVID-19 public health orders mandating a 48-
day closure of gun shops, ammunition shops, and firing
ranges violated plaintiffs’ Second Amendment rights.
The panel first held that the Orders’ 48-day closure of
gun shops, ammunition shops, and firing ranges burdened
conduct protected by the Second Amendment, based on a
historical understanding of the scope of the Second
Amendment right.
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
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MCDOUGALL V. COUNTY OF VENTURA 3
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 COVID-
19 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 Kleinfeld stated that he concurred in
the result but wrote separately for two reasons. First, there
was no need to reach the question of whether strict scrutiny
applied, so he would not. While strict scrutiny may be
appropriate, as the majority concluded, nevertheless, the
panel should not make more law than was necessary to
decide the case. Second, Judge Kleinfeld wished to expand
4 MCDOUGALL V. COUNTY OF VENTURA
upon the absence of justification in the record for what the
County did. There was 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.
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.
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 jump-
start on calling this case en banc. To better explain the
reasoning and assumptions behind this type of analysis,
MCDOUGALL V. COUNTY OF VENTURA 5
Judge VanDyke’s alternative draft contains footnotes that
offer further elaboration.
COUNSEL
Raymond M. DiGuiseppe (argued), The DiGuiseppe Law
Firm P.C., Southport, North Carolina; Joseph G.S. Greenlee,
Firearms Policy Coalition, Sacramento, California; Ronda
Baldwin-Kennedy, Law Office of Ronda Baldwin-Kennedy,
Agoura Hills, California; for Plaintiffs-Appellants.
Christine Renshaw (argued), Assistant County Counsel;
Jeffrey Barnes, Chief Assistant County Counsel; Office of
the County Counsel, Ventura, California; for Defendants-
Appellees.
OPINION
VANDYKE, Circuit Judge:
“[T]he right of the people to keep and bear Arms,” U.S.
Const. amend. II, means nothing if the government can
prohibit all persons from acquiring any firearm or
ammunition. But that’s what happened in this case. Under
California’s highly regulated framework for firearms, law-
abiding citizens can only obtain firearms and ammunition by
arriving in-person to government-approved gun and
ammunition shops. And after purchasing a firearm, they
must wait a minimum of ten days to obtain it (and sometimes
much longer). When COVID hit, Ventura County,
California issued a series of public health orders
(collectively, Orders) that mandated a 48-day closure of gun
shops, ammunition shops, and firing ranges. They did this
6 MCDOUGALL V. COUNTY OF VENTURA
while allowing other businesses like bike shops to remain
open. The Orders also prohibited everyone from leaving
their homes other than for preapproved reasons, which did
not include traveling to gun or ammunition shops or firing
ranges outside the County.
The Orders therefore wholly prevented law-abiding
citizens in the County from realizing their right to keep and
bear arms, both by prohibiting access to acquiring any
firearm and ammunition, and barring practice at firing
ranges with any firearms already owned. These blanket
prohibitions on access and practice clearly burden conduct
protected by the Second Amendment and fail under both
strict and intermediate scrutiny. We therefore reverse and
remand to the district court. 1
1
As described below, the County has since withdrawn its blanket
prohibitions. Although Appellees do not raise the issue of mootness on
appeal, “[w]e have an independent duty to consider sua sponte whether
a case is moot.” Students for a Conservative Am. v. Greenwood,
391 F.3d 978 (9th Cir. 2004) (citation omitted). In this case, Appellants
sought nominal damages, which “provide the necessary redress for a
completed violation of a legal right.” Uzuegbunam v. Preczewski, 141 S.
Ct. 792, 802 (2021). Under Uzuegbunam, therefore, the fact that
Appellants sought damages precludes a mootness claim. See id. But
even if Appellants had not sought nominal damages, the Orders provided
for perpetual extensions, so it cannot be said that there “is no reasonable
expectation . . . that the alleged violation will recur” and “interim relief
or events have completely and irrevocably eradicated the effects of the
alleged violation.” Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018)
(citation and internal quotation marks omitted); see also Tandon v.
Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam) (“[E]ven if the
government withdraws or modifies a COVID restriction in the course of
litigation, that does not necessarily moot the case.”). The mootness
exception for wrongs that have been terminated and are unlikely to recur
therefore does not apply. See Fikre, 904 F.3d at 1037.
MCDOUGALL V. COUNTY OF VENTURA 7
BACKGROUND
Appellants Kelly Ann Chakov McDougall, 2 Juliana
Garcia, Second Amendment Foundation, Inc., California
Gun Rights Foundation, and Firearms Policy Coalition, Inc.
(collectively, Appellants) appeal the district court’s
dismissal of their complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). 3 They claim that the district court
erred in concluding that they failed to sufficiently state a
plausible claim that the Orders violated their Second
Amendment rights. To fully understand the Orders’ impact
on Appellants’ Second Amendment rights, some
background on California’s regulatory framework is
necessary. 4
A. California’s Extensive Regulatory Framework for
Firearms
As we have previously acknowledged, “California has
extensive laws regulating the sale and purchase of firearms.”
2
After the parties filed their briefs, Plaintiff Donald McDougall
passed away and his counsel moved to substitute Kelly Ann Chakov
McDougall in his place. We grant the Motion for Substitution of Party
(ECF 36).
3
Appellant Garcia is a County resident. Garcia desired to purchase
a firearm but was unable to acquire a Firearm Safety Certificate or
purchase a firearm and ammunition due to the Orders. The remaining
appellants are non-profit organizations who have numerous members
similarly situated to Garcia.
4
See Teixeira v. County of Alameda, 873 F.3d 670, 691 (9th Cir.
2017) (en banc) (Tallman, J., concurring in part and dissenting in part)
(“The impact of this county ordinance on the fundamental rights
enshrined in the Second Amendment cannot be viewed in a vacuum
without considering gun restrictions in California as a whole.”).
8 MCDOUGALL V. COUNTY OF VENTURA
Silvester v. Harris, 843 F.3d 816, 818 (9th Cir. 2016). Under
California law, individuals can only complete the sale, loan,
or transfer of a firearm through a licensed firearm dealer
(gun shops). See Cal. Penal Code §§ 27545; 28050. After
purchasing, individuals must wait ten days before receipt of
the firearm. See Cal. Penal Code §§ 26815, 27540. 5
With limited exceptions, individuals must also acquire or
otherwise transfer and take possession of ammunition from
duly licensed firearm and/or ammunition retailers
(ammunition shops). See Cal. Penal Code §§ 16151, 30312,
30342, 30370; see also Rhode v. Becerra, 445 F. Supp. 3d
902, 912 (S.D. Cal. 2020). 6
Eligible persons must also obtain a valid Firearm Safety
Certificate to acquire firearms, see Cal. Penal Code § 26840,
which involves taking a written test “generally at
participating firearms dealerships and private firearms
training facilities.” 7 In addition to taking a written test,
5
Limited exceptions exist for certain purchases, including peace
officers and special permit holders. Cal. Penal Code §§ 26950, 26965.
6
While the district court in Rhode preliminarily enjoined
background checks for ammunition sales pursuant to California Penal
Code §§ 30370(a)–(d) and § 30352, see Rhode, 445 F. Supp. 3d at 910,
957, a motions panel of this court stayed the injunction pending appeal.
Rhode v. Becerra, No. 20-55437, 2020 WL 9938296 at *1 (9th Cir. May
14, 2020). A merits panel of this court then ordered the appeal to be held
in abeyance pending the issuance of the mandate in Duncan v. Becerra,
No. 19-55376. Rhode v. Rodriquez, No. 20-55437 (9th Cir. Mar. 19,
2021), ECF No. 82. In any event, the parties do not dispute that the
Orders prevented County residents from engaging in ammunition
transactions.
7
Becoming A DOJ Certified Instructor And Maintaining Current
DOJ Certified Instructor Certification, STATE OF CALIFORNIA
MCDOUGALL V. COUNTY OF VENTURA 9
eligible persons must also “perform a safe handling
demonstration . . . . in the presence of a DOJ Certified
Instructor[,] . . . [which] are generally performed at the
firearms dealership.” 8
Once someone lawfully acquires a firearm, California
law generally prohibits them from openly carrying a
handgun in public places. Cal. Penal Code § 26350. And
those lawfully in possession of a handgun can only carry it
while concealed with a license—which can only be obtained
(if at all, see Peruta v. County of San Diego, 824 F.3d 919,
942 (9th Cir. 2016) (en banc)), by completing an in-person
firearms training class that involves “live-fire shooting
exercises on a firing range.” Cal. Penal Code §§ 25400,
26150(a)(4), 26165(a)(3).
The closure of gun shops, ammunition shops, and firing
ranges therefore eliminates the only lawful means to acquire
firearms and ammunition within the County, as well as law-
abiding County residents’ ability to carry handguns in
public. As Appellants alleged in their operative Complaint: 9
If firearms and ammunition could be
purchased online like other constitutionally
DEPARTMENT OF JUSTICE (last visited Sept. 10, 2021),
https://oag.ca.gov/firearms/fscinfo.
8
California Firearms Laws Summary, CALIFORNIA DEPARTMENT
OF JUSTICE at 4 (2016), https://oag.ca.gov/sites/all/files/agweb/pdfs/fire
arms/pdf/cfl2016.pdf. Pawn shops and immediate family members are
exempt from the safe handling demonstration requirement. Id.9
Given that Appellants have appealed the district court’s dismissal
of their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),
we accept Appellants’ well-pleaded allegations of material fact as true.
See Judd v. Weinstein, 967 F.3d 952, 955 (9th Cir. 2020).
10 MCDOUGALL V. COUNTY OF VENTURA
protected artifacts, such as paper, pens, ink,
and technology products that facilitate
speech, then individuals could simply
purchase what they need and have the items
delivered to their doorsteps. But because of
an onerous and complicated federal, state,
and local regulatory scheme, people in
California cannot exercise their Second
Amendment right to keep and bear arms
without going in person to such . . .
businesses—at least once for ammunition
and at least twice for firearms.
B. County Orders
It was against this extensive regulatory backdrop that the
County began issuing public health orders in March of 2020
in response to the COVID-19 pandemic.
On March 17, 2020, the County ordered, among other
things, that all County residents ages 75 and older “shelter in
their place of residence” until April 1. These senior citizens
could only leave their residences “to seek medical care,
nutrition, or to perform essential work in healthcare or
government.” These narrow exceptions did not include the
acquisition of firearms and ammunition, or practice
therewith. “Violation of or failure to comply with [the]
Order [constituted] a misdemeanor punishable by fine,
imprisonment, or both . . . .”
Three days later, on March 20, the County supplemented
its March 17 Order by mandating that “[a]ll persons
currently living within [the] County . . . stay at their places
of residence, as required by the Governor’s Executive Order
N-33-20, subject to the exemptions set forth in this Order”
MCDOUGALL V. COUNTY OF VENTURA 11
(emphasis added). 10 People of all ages could leave their
residences only to exercise or work around their residences
(e.g., gardening). And people not subject to the stay-at-
home mandate from the March 17 Order could also leave
their residence solely to engage in “Essential Activities and
Essential Governmental Functions or Services or to operate
or work at Essential Businesses.”
The March 20 Order limited the permitted “Essential
Activities” to only five categories, which the parties agree
did not include the purchase of firearms and ammunition, or
practice therewith. 11 To emphasize the strict nature of the
stay-at-home mandate, the March 20 Order continued, “[a]ll
travel . . . except for Essential Travel and Essential
Activities[] is prohibited.” 12 It further reiterated that only
“travel into or out of the County to perform Essential
Activities, operate Essential Businesses or to maintain or
10
On March 19, Governor Gavin Newsom signed Executive Order
N-33-201, directing all California residents to “stay home or at their
place of residence except as needed to maintain continuity of operations
of the federal critical infrastructure sectors.”
11
The five categories of “Essential Activities” included:
(1) “engag[ing] in activities or perform[ing] tasks essential to [the]
health and safety” of individuals or their family and household members,
(2) “obtain[ing] necessary services or supplies for themselves and their
family or household members,” (3) “engag[ing] in outdoor activit[ies],”
(4) “perform[ing] work providing products and services at an Essential
Business or to otherwise carry out activities specifically permitted in this
Order, including Minimum Basic Operations;” and (5) “car[ing] for a
family member or pet in another household.”
12
While “Essential Travel” included “[t]ravel engaged in interstate
commerce and otherwise subject to the provisions of the Commerce
Clause of the United States Constitution,” Appellees have not argued that
this provision included the ability to acquire firearms or practice with
them outside the County.
12 MCDOUGALL V. COUNTY OF VENTURA
provide Essential Governmental Functions or Services [was
allowed].”
The March 20 Order also mandated that “[a]ll businesses
with a facility in the County, except Essential Businesses,
are required to cease all activities at facilities located within
the County except Minimum Basic Operations.” But it
“strongly encouraged” “[a]ll Essential Businesses . . . to
remain open.” “Essential Businesses” included businesses
like hardware stores and laundromats, but not gun shops,
ammunition shops, or firing ranges. Notably, the March 20
Order did not provide any explanation for its designation of
“Essential Businesses.”
The March 20 Order concluded that it would remain in
effect until April 19, or “until it is extended, rescinded,
superseded or amended in writing by the Health Officer.”
And “violation of or failure to comply with th[e] Order [wa]s
a misdemeanor punishable by fine, imprisonment, or both.”
Eleven days later, on March 31, the County
supplemented and extended the March 20 Order by, among
other things, limiting “the activities of . . . Essential
Businesses . . . to the provision of those goods and services
essential to the overall intent of the . . . Orders.” For
example, farmers’ markets could sell food and beverages,
but not clothing or jewelry. It also added that “a violation of
the . . . Orders by a business may subject the business to
liability under the state’s unfair competition law as well as
other civil and criminal penalties.” The March 31 Order did
not reference gun shops, ammunition shops, or firing
ranges—despite an advisory memorandum that had been
recently issued by the United States Department of
Homeland Security, Cybersecurity & Infrastructure Agency
(CISA) listing all those who work in supporting the
operation of firearm or ammunition product manufacturers,
MCDOUGALL V. COUNTY OF VENTURA 13
retailers, importers, distributors, and shooting ranges as
“essential critical infrastructure workers.”
Nine days after the March 31 Order, on April 9, the
County supplemented its previous Orders by prohibiting
gatherings of two or more people outside a single household
or living unit. It also added three new businesses to the
“Essential Businesses” list: bicycle repair and supply shops
(for online sales only), residential real estate services, and
auto dealerships (also only online sales). Like the March 20
Order, the April 9 Order omitted any rationale as to its
designation of these three, but only these three, as newly
added “Essential Businesses.”
On April 20, in a new order, the County reaffirmed many
of its previous prohibitions but added new provisions. For
example, the April 20 Order loosened the requirements for
previously designated “Essential Businesses” by allowing
in-store bicycle sales. And it expanded the list of “Essential
Businesses” by adding “[b]oat yards and other businesses
that provide for safety, security and sanitation of boats stored
at docks and marinas.” Gun shops, ammunition shops and
firing ranges remained off the “Essential Businesses” list,
and the County still omitted any explanation as to its
selection of “Essential Businesses.” It also expanded the list
of “Essential Activities” to include, among other things,
golfing (while not requiring golfing groups to be from the
same household).
The April 20 Order, did, however, accommodate people
“who initiated the purchase of a firearm at a store located
within the County before March 20, 2020 (i.e., the day
firearm stores were ordered to be closed . . .).” For those
purchasers only, it allowed for limited actions “necessary to
complete the firearm purchase.” These actions must “occur
by appointment only, and only the purchaser and one person
14 MCDOUGALL V. COUNTY OF VENTURA
on behalf of the store shall be present.” But for the rest of
the general public who hadn’t purchased a firearm before
March 20, “[t]he firearm store shall remain closed.” It
provided no explanation as to why the general public could
not purchase firearms or ammunition by appointment as
well.
Almost three weeks later, on May 7, the County
indicated in a new order that various businesses could
reopen. Although the May 7 Order did not explicitly refer
to gun shops, ammunition shops, or firing ranges, the
County’s frequently asked questions (FAQs) indicated that
“[w]ith the elimination of the essential business model in the
local health order, and reliance on the State health order
model for critical infrastructure, the Sheriff and local health
officer have determined that the gun stores may fully open
to the public provided they implement and register site-
specific prevention plans . . . .” The May 7 Order further
defined Essential Activities, in part, as activities necessary
“[t]o otherwise carry out activities specifically permitted in
this . . . Order.” 13
Thus, from March 20 to May 7, 2020—a total of
48 days—the Orders mandated the closure of gun shops,
ammunition shops, and firing ranges throughout the County
to the general public, including Appellants. The closure
prohibited County residents from leaving their homes to
acquire any firearms or ammunition and maintain
proficiency in the use of firearms at firing ranges. Violations
13
But the May 7 Order still prohibited certain senior citizens from
leaving their residence unless it was “necessary to seek medical care or
exercise or nutrition or to perform essential work . . . .” The parties,
however, limit the relevant time period at issue in this case to 48 days,
from March 20 to May 7, 2020.
MCDOUGALL V. COUNTY OF VENTURA 15
of these Orders could subject a person to criminal sanctions
and civil liability. The County repeatedly reaffirmed these
prohibitions, while simultaneously allowing businesses like
hardware stores, laundromats, bicycle shops, and even boat
yards to open, and allowing people to leave their homes for
activities like golfing. The County never explained its
rationale behind the designations of businesses and activities
deemed “Essential.” The Orders therefore denied anyone
who did not possess both a firearm and ammunition on
March 19, 2020, from exercising their fundamental rights
protected by the Second Amendment until at least May 7. 14
C. Procedural History
Appellants filed a lawsuit on March 28, in the midst of
the issuance of the first few orders, alleging claims under
42 U.S.C. § 1983 and naming the County as a defendant. 15
In the operative complaint, Appellants alleged that
Appellees’ “orders, directives, policies, practices, customs,
and enforcement actions” violated their rights under the
Second Amendment (Second Amendment claim).
After the district court denied two temporary restraining
orders (TROs), Appellees filed a motion to dismiss. In
evaluating the motion, the district court concluded that
14
As explained further below, because California imposes a
minimum 10-day waiting period on the purchase of firearms, if a County
resident had not initiated a firearm purchase before March 20, as a
practical matter she was strictly prohibited from obtaining a firearm from
March 20 until May 17—almost two months.
15
In the operative First Amended Complaint, Appellants named the
County of Ventura, Ventura County Sheriff Bill Ayub, Ventura County
Public Health Care Agency Director William T. Foley, Ventura County
Public Health Medical Director and Health Officer Robert Levin, and the
Ventura County Public Health Care Agency (collectively, Appellees).
16 MCDOUGALL V. COUNTY OF VENTURA
Appellants failed to state a claim under both Jacobson v.
Massachusetts, 197 U.S. 11 (1905), and our circuit’s
traditional Second Amendment analysis. When evaluating
Appellants’ claims under the traditional tiered-scrutiny
analysis, the district court first assumed that the Orders
burdened Second Amendment conduct, and then determined
that the Orders “do not substantially burden the core right of
the Second Amendment” so “intermediate scrutiny is
appropriate.” Applying intermediate scrutiny, the district
court ultimately concluded that the Orders constituted a
“reasonable fit between the County’s objective of slowing
the spread of COVID-19 and the temporary closure of non-
essential businesses, including firearms retailers.” The
district court therefore granted the motion to dismiss.
Appellants appeal that order and judgment.
STANDARD OF REVIIEW
“We review de novo an order granting a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim, accepting as true all well-pleaded
allegations of material fact and construing those facts in the
light most favorable to the non-moving party.” Judd,
967 F.3d at 955. “[D]ismissal is affirmed only if it appears
beyond doubt that [the] plaintiff can prove no set of facts in
support of its claims which would entitle it to relief.” City
of Almaty v. Khrapunov, 956 F.3d 1129, 1131 (9th Cir. 2020)
(citation, internal alternations, and quotation marks omitted).
“It is axiomatic that the motion to dismiss for failure to state
a claim is viewed with disfavor and is rarely granted.”
McDougal v. County of Imperial, 942 F.2d 668, 676 n.7 (9th
Cir. 1991) (citation, internal alterations, and quotation marks
omitted).
MCDOUGALL V. COUNTY OF VENTURA 17
DISCUSSION
As noted above, this case asks us to decide whether the
Orders’ closure of gun shops, ammunition shops, and firing
ranges—which effectively prohibited any lawful acquisition
of firearms and ammunition within the County for at least
48 days—violates the Second Amendment. The Second
Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
Const. amend. II. Like most circuits, “we have adopted a
two-step inquiry for assessing whether a law violates the
Second Amendment.” Mai v. United States, 952 F.3d 1106,
1113 (9th Cir. 2020); see also Jackson v. City and County of
San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). “This test
(1) asks whether the challenged law burdens conduct
protected by the Second Amendment and (2) if so, directs
courts to apply an appropriate level of scrutiny.” Mai,
952 F.3d at 1113 (citation and internal quotation marks
omitted). “[T]his inquiry bears strong analogies to the
Supreme Court’s free-speech caselaw.” Jackson, 746 F.3d
at 960.
As discussed below, the Orders’ effective prohibition on
all access to and the practice of firearms at firing ranges
throughout the County clearly burdens conduct protected by
the Second Amendment. And because Jacobson does not
concern the specific, constitutionally enumerated right at
issue here, and essentially applied rational basis review, it
does not apply. Instead, the severity of the Orders’ burden
warrants strict scrutiny—which the Orders fail to satisfy
because they are not the least restrictive means to further
Appellees’ interest, especially when compared to businesses
that have no bearing on fundamental rights, yet nevertheless
were allowed to remain open. And even if intermediate
18 MCDOUGALL V. COUNTY OF VENTURA
scrutiny was the appropriate standard of review, Appellees
failed to show how the Orders satisfied it given their
complete omission of any explanation as to why gun shops,
ammunition shops, and firing ranges posed any more of a
risk than other non-Constitutionally protected activities that
were deemed “essential” and allowed to remain open.
1. The Orders Burden Conduct Protected by the Second
Amendment.
We must first decide whether the Orders’ 48-day closure
of gun shops, ammunition shops, and firing ranges “burdens
conduct protected by the Second Amendment, based on a
historical understanding of the scope of the Second
Amendment right.” Jackson, 746 F.3d at 960 (citations,
internal alteration, and quotation marks omitted). “To
determine whether a challenged law falls outside the
historical scope of the Second Amendment, we ask whether
the regulation is [1] one of the presumptively lawful
regulatory measures identified in Heller, or [2] whether the
record includes persuasive historical evidence establishing
that the regulation at issue imposes prohibitions that fall
outside the historical scope of the Second Amendment.” Id.
(internal citations and quotation marks omitted). The
“presumptively lawful regulatory measures identified in
Heller” are “well-defined and narrowly limited.” Id.
(citation and internal quotation marks omitted).
Neither of these two threshold inquiries are met here.
First, no party argues that a 48-day closure of all gun shops,
ammunition shops, and firing ranges in the County is one of
Heller’s “presumptively lawful regulatory measures.” Id.
Nor could they, as nothing in Heller suggests that a complete
and total ban on the commercial sale of all arms and
ammunition implicates the “well-defined and narrowly
MCDOUGALL V. COUNTY OF VENTURA 19
limited” presumptively lawful categories. See id.; see also
District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008).
Second, the record does not include persuasive historical
evidence establishing that the Orders impose prohibitions
that fall outside the Second Amendment’s historical scope.
See Jackson, 746 F.3d at 960, 962; see also Teixeira,
873 F.3d at 682 (“[D]etermining the scope of the Second
Amendment’s protections requires a textual and historical
analysis of the amendment.” (citation omitted)). Instead,
Heller’s exhaustive textual and historical Second
Amendment analysis—as well as our court’s own caselaw—
reveal that the ability to acquire firearms and ammunition,
and maintain proficiency in their use at firing ranges, falls
well within the Second Amendment’s historical scope. See
Heller, 554 U.S. at 582 (“[T]he most natural reading of ‘keep
Arms’ in the Second Amendment is to ‘have weapons.’”);
id. at 594 (“[Colonists] understood the right to enable
individuals to defend themselves.”); id. at 617–18 (“[T]o
bear arms implies something more than the mere keeping; it
implies the learning to handle and use them[;] . . . it implies
the right to meet for voluntary discipline in arms, observing
in doing so the laws of public order.” (quoting from judge
and professor Thomas Cooley’s 1880 work, General
Principles of Constitutional Law); id. at 619 (“Some general
knowledge of firearms is important to the public welfare;
because it would be impossible, in case of war, to organize
promptly an efficient force of volunteers unless the people
had some familiarity with weapons of war.” (quoting B.
Abbott, Judge and Jury: A Popular Explanation of the
Leading Topics in the Law of the Land 333 (1880)));
Teixeira, 873 F.3d at 686 (“The British embargo and the
colonists’ reaction to it suggest . . . that the Founders were
aware of the need to preserve citizen access to firearms in
light of the risk that a strong government would use its power
20 MCDOUGALL V. COUNTY OF VENTURA
to disarm the people.”). Indeed, a complete ban on the
ability to acquire arms and ammunition, and the closure of
all firing ranges, renders the right to keep and bear arms
“hardly . . . worth the paper it consumed.” Heller, 554 U.S.
at 609 (citation omitted).
While Appellees cite Silvester in arguing that California
has a “long history of delaying possession of firearms
without impinging on the Second Amendment,” California’s
historical delays were far shorter than the 48-day mandated
closure at issue here—which actually amounts to a 58-day
delay for the possession of firearms when California’s
mandatory 10-day waiting period between purchase and
possession is added to the County’s 48-day ban. See
Silvester, 843 F.3d at 823–24. Also important is the fact that
unlike Silvester—which had clearly established timelines for
the delays—the delays here were indefinite and fluid. And
even in Silvester we assumed without deciding that the
challenged 10-day waiting period as applied to appellants in
that case fell within Second Amendment’s historical scope.
Id. at 826–27. Appellees’ lack-of-burden argument fails.
“Because [the Orders] . . . are not part of a long historical
tradition of proscription,” we “conclude that [the Orders]
burden[] rights protected by the Second Amendment.”
Jackson, 746 F.3d at 963 (internal citation and quotation
marks omitted).
2. The Orders Fail Under Any Level of Heightened
Scrutiny.
Because we determine that the Orders burden conduct
protected by the Second Amendment, we “proceed to the
second step of the Second Amendment inquiry to determine
the appropriate level of scrutiny.” Id. at 960. “When
ascertaining the appropriate level of scrutiny, just as in the
First Amendment context, we consider: (1) how close the
MCDOUGALL V. COUNTY OF VENTURA 21
law comes to the core of the Second Amendment right and
(2) the severity of the law’s burden on the right.” Id. at 960–
61 (citation and internal quotation marks omitted). “In
weighing the severity of the burden, we are guided by a
longstanding distinction between laws that regulate the
manner in which individuals may exercise their Second
Amendment right, and laws that amount to a total prohibition
of the right.” Pena v. Lindley, 898 F.3d 969, 977 (9th Cir.
2018).
“The result is a sliding scale. A law that imposes such a
severe restriction on the fundamental right of self defense of
the home that it amounts to a destruction of the Second
Amendment right is unconstitutional under any level of
scrutiny.” Silvester, 843 F.3d at 821 (pointing to Heller as
an example). “A law that implicates the core of the Second
Amendment right and severely burdens that right warrants
strict scrutiny.” Id. “If a challenged law does not implicate
a core Second Amendment right, or does not place a
substantial burden on the Second Amendment right, the
court may apply intermediate scrutiny.” Id. (citation,
internal alteration, and quotation marks omitted). But
rational basis review is not appropriate. See U.S. v. Chovan,
735 F.3d 1127, 1137 (9th Cir. 2013). In determining the
appropriate level of heightened scrutiny, “we are . . . guided
by First Amendment principles.” Jackson, 746 F.3d at 961.
Given that Jacobson does not concern a specific,
constitutionally enumerated right and essentially applied
rational basis review, Jacobson does not apply. Instead, the
Orders’ severe burden on the core of the Second Amendment
right warrants strict scrutiny. And because the Orders are
not the least restrictive means available, they fail to satisfy
strict scrutiny’s high standard. But even if intermediate
22 MCDOUGALL V. COUNTY OF VENTURA
scrutiny applied, Appellees have failed to satisfy their
burden of showing a reasonable fit.
a. Jacobson Does Not Apply.
Over 115 years ago, the Supreme Court in Jacobson
addressed whether a state statute requiring smallpox
vaccinations violated “the inherent right of every freeman to
care for his own body and health in such way as to him seems
best.” 197 U.S. at 26. The defendant in Jacobson structured
his claim as a substantive due process challenge emanating
from the Fourteenth Amendment; no specific enumerated
right was at issue. 16 Id. at 14, 25–26. The Court began by
discussing the government’s general police power, noting
that “[t]he mode or manner in which [local administrations
choose to safeguard public health and safety] . . . is within
the discretion of the state, subject, of course . . . only to the
condition that no rule prescribed by a state . . . shall
contravene the Constitution of the United States, nor infringe
any right granted or secured by that instrument.” Id. at 25.
“A local enactment or regulation,” the Court continued,
“even if based on the acknowledged police powers of a state,
must always yield in case of conflict with the exercise by the
general government of any power it possesses under the
Constitution, or with any right which that instrument gives
or secures.” Id. (emphasis added).
After discussing well-established principles of police
power, the Court reasoned that “the [state] legislature . . .
16
See Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,
70 (2020) (Gorsuch, J., concurring) (“Jacobson claimed that he
possessed an implied ‘substantive due process’ right to ‘bodily integrity’
that emanated from the Fourteenth Amendment and allowed him to
avoid not only the vaccine but also the $5 fine (about $140 today) and
the need to show he qualified for an exemption.” (citation omitted)).
MCDOUGALL V. COUNTY OF VENTURA 23
required the inhabitants of a city or town to be vaccinated
only when, in the opinion of the board of health, that was
necessary for the public health or the public safety.” Id. at
27. Given the general deference afforded to the legislature,
the Court determined that legislative action is only
unconstitutional “if a statute purporting to have been enacted
to protect the public health, the public morals, or the public
safety, has no real or substantial relation to those objects, or
is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law.” Id. at 31. Because the
state statute at issue satisfied neither of these two prongs, the
Court concluded that the statute did not “invade[] any right
secured by the Federal Constitution.” Id. at 31, 38. Multiple
jurists and legal commentators have likened this analysis by
the Jacobson Court to what we now call rational basis
review. 17
In the intervening century since Jacobson, the Supreme
Court has repeatedly determined that some level of
heightened scrutiny applies when evaluating laws
implicating specific, enumerated constitutional rights. See
Heller, 554 U.S. 628 n.27 (“[The rational basis test] could
not be used to evaluate the extent to which a legislature may
regulate a specific, enumerated right, be it the freedom of
17
See, e.g., Roman Cath. Diocese, 141 S. Ct. at 70 (Gorsuch, J.,
concurring) (“Although Jacobson pre-dated the modern tiers of scrutiny,
this Court essentially applied rational basis review to . . . Jacobson’s
challenge . . . .”); League of Indep. Fitness Facilities & Trainers, Inc. v.
Whitmer, 814 F. App’x 125, 129 (6th Cir. 2020) (inferring that Jacobson
presented a rational basis review); Erwin Chemerinsky & Michele
Goodwin, Civil Liberties in a Pandemic: The Lessons of History,
106 Cornell L. Rev. 815, 829 (2021) (“From the perspective of today, it
is striking how much Jacobson used the language of rational basis
review, although that as a formal test was not formulated until much later
by the Supreme Court.”).
24 MCDOUGALL V. COUNTY OF VENTURA
speech, the guarantee against double jeopardy, the right to
counsel, or the right to keep and bear arms.”). Regarding the
Second Amendment, the Supreme Court has explicitly
determined that rational basis review does not apply,
reasoning that “[i]f all that was required to overcome the
right to keep and bear arms was a rational basis, the Second
Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would
have no effect.” Id. Our court has reiterated that “[l]aws
burdening Second Amendment rights must withstand more
searching scrutiny than rational basis review.” Mai,
952 F.3d at 1115 (citation omitted).
The Supreme Court has also repeatedly affirmed that
heightened-scrutiny requirements still apply during times of
crises. In several recent cases evaluating public health
orders issued in response to the COVID pandemic, the
Supreme Court applied strict scrutiny and ignored Jacobson
entirely. See Tandon, 141 S. Ct. at 1296; S. Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716, 717–18
(2021) (Statement of Gorsuch, J.); Roman Cath. Diocese,
141 S. Ct. at 67. The only writing from the Court pertaining
to COVID-related government orders that relied on
Jacobson was Chief Justice Roberts’s lone concurrence in
South Bay United Pentecostal Church v. Newsom, 140 S. Ct.
1613, 1613 (2020) (Roberts, C.J., concurring in the denial of
application for injunctive relief), but even he has distanced
himself from Jacobson in more recent writings. See Roman
Cath. Diocese, 141 S. Ct. at 75–76 (Roberts, C.J.,
dissenting). And when evaluating other public health orders
issued in response to COVID-19, this court has similarly
ignored Jacobson and applied the tiered-scrutiny analysis.
See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d
1228, 1234 (9th Cir. 2020). This makes sense: As the
Supreme Court has repeatedly indicated, national crises do
MCDOUGALL V. COUNTY OF VENTURA 25
not water down the application of Constitutional rights—
instead, the need to protect those rights is especially acute
during those times. See S. Bay United Pentecostal Church,
141 S. Ct. at 718 (Statement of Gorsuch, J.) (“Even in times
of crisis—perhaps especially in times of crisis—we have a
duty to hold governments to the Constitution.”).
Jacobson’s rational basis review of a substantive due
process claim therefore renders it inapplicable here.
“Jacobson . . . . involved an entirely different mode of
analysis, an entirely different right, and an entirely different
kind of restriction.” Roman Cath. Diocese, 141 S. Ct. at 70
(Gorsuch, J., concurring). Where Jacobson concerned a
substantive due process claim that traditionally warrants
rational basis review absent suspect classifications, id.,
Appellants bring a Second Amendment claim that
traditionally warrants heightened scrutiny. Even Jacobson
itself correctly recognized that police powers “must always
yield in case of conflict . . . with any right which [the
Constitution] gives or secures.” 197 U.S. at 25. And where
the challenged restriction at issue in Jacobson allowed for
viable alternatives to avoid the alleged harm, see Roman
Cath. Diocese, 141 S. Ct. at 71 (Gorsuch, J., concurring), the
Orders at issue here effectively imposed a 48-day complete
ban on acquiring firearms and ammunition, and practicing
with firearms at firing ranges. “Nothing in Jacobson
purported to address, let alone approve, such serious and
long-lasting intrusions into settled constitutional rights.” Id.
Jacobson is inapplicable both on the facts and the law. 18
18
Moreover, since Roman Catholic Diocese, several courts have
followed the Supreme Court’s lead and ignored Jacobson in analyzing
the constitutionality of public health orders. See, e.g., Agudath Israel of
Am. v. Cuomo, 983 F.3d 620, 635 (2d Cir. 2020) (“[The] reliance on
26 MCDOUGALL V. COUNTY OF VENTURA
b. We Do Not Decide That the Orders Are
Categorically Unconstitutional.
Although we determine that the Orders warrant
heightened scrutiny, we decline to determine whether the
Orders are categorically unconstitutional. See Silvester,
843 F.3d at 821 (“A law that imposes such a severe
restriction on the fundamental right of self defense of the
home that it amounts to a destruction of the Second
Amendment right is unconstitutional under any level of
scrutiny.”). A 48-day closure of all gun shops, ammunition
shops, and firing ranges throughout the County—which
effectively forecloses all available means to acquire firearms
and ammunition and practice with firearms at firing
ranges—would seem to “amount[] to a destruction of the
Second Amendment right,” and therefore be categorically
unconstitutional. Jackson, 746 F.3d at 961 (citation and
internal alteration omitted); see also Heller, 554 U.S. at 630(determining that D.C.’s “requirement . . . that firearms in
the home be rendered and kept inoperable at all times . . . .
makes it impossible for citizens to use them for the core
lawful purpose of self-defense and is hence
Jacobson was misplaced.”); Calvary Chapel Dayton Valley, 982 F.3d at
1232 (applying strict scrutiny to First Amendment claims); Northland
Baptist Church of St. Paul, MN v. Walz, 530 F. Supp. 3d 790, 811
(D. Minn. 2021) (“Based on the Supreme Court’s recent application of
traditional tiers of constitutional scrutiny in Roman Catholic Diocese, the
Court concludes that Jacobson does not replace the traditional tiers of
constitutional scrutiny.”). And our determination here that Jacobson
does not apply when evaluating fundamental rights aligns with at least
one sister circuit that has reached a similar conclusion. See Agudath
Israel of Am. v. Cuomo, 983 F.3d 620, 635 (2d Cir. 2020) (“Jacobson
predated the modern constitutional jurisprudence of tiers of scrutiny, was
decided before the First Amendment was incorporated against the states,
and did not address the free exercise of religion.” (citation and internal
quotation marks omitted)).
MCDOUGALL V. COUNTY OF VENTURA 27
unconstitutional.”). But because the Orders fail to satisfy
any level of heightened scrutiny, we base our decision on the
traditional tiered scrutiny analysis.
c. Strict Scrutiny Applies.
Because Jacobson does not apply, we must determine
which level of heightened scrutiny applies. As we have
previously determined, “[a] law that [1] implicates the core
of the Second Amendment right and [2] severely burdens
that right warrants strict scrutiny.” Silvester, 843 F.3d
at 821. Both of these requirements are met here.
First, the Orders “implicate[d] the core of the Second
Amendment right” because they foreclosed the ability to
acquire arms and ammunition and maintain proficiency in
the use of firearms—rights which an en banc panel of this
court has repeatedly acknowledged are “necessary to the
realization of the core right to possess a firearm for self-
defense.” Teixeira, 873 F.3d at 677; see also id. (“As with
purchasing ammunition and maintaining proficiency in
firearms use, the core Second Amendment right to keep and
bear arms for self-defense wouldn’t mean much without the
ability to acquire arms.” (emphases added) (citation and
internal quotations omitted)); see also id. at 680 (“[G]un
buyers have no right to have a gun store in a particular
location, at least as long as their access is not meaningfully
constrained.” (emphasis added)); id. at 682 (“Commerce in
firearms is a necessary prerequisite to keeping and
possessing arms for self-defense . . . .”). 19 If these rights are
19
In Teixeira, an en banc panel of our court determined, among
other things, that the plaintiffs failed to state a claim that a county zoning
ordinance prohibiting firearm sales in certain areas “impedes any
resident of [that county] who wishes to purchase a firearm from doing
28 MCDOUGALL V. COUNTY OF VENTURA
“necessary to the realization of the core Second Amendment
rights,” id. at 677, then a fortiori they must “implicate[] the
core of the Second Amendment right.” Silvester, 843 F.3d
at 821.
Second, the Orders’ mandated closure of all gun shops
and firing ranges throughout the County “severely burdens
that right” by foreclosing altogether County residents’
ability to acquire firearms or ammunition or maintain
proficiency in their use at firing ranges. As noted above,
under California’s extensive firearm regulations, the Orders
prohibited County residents from the only lawful means of
acquiring firearms and ammunition—and then prohibited
those residents from leaving their homes to acquire those
items elsewhere. This court has already observed that “an
so.” 873 F.3d at 673. In evaluating the claim, the panel repeatedly
referred to the right to access firearms, ammunition, and firing ranges
when reasoning that the zoning ordinance did not meaningfully impede
on those rights. Id. at 677–78. In emphasizing the zoning ordinance’s
lack of burden on the Second Amendment, the panel contrasted the
Seventh Circuit’s decision in Ezell v. City of Chicago, 846 F.3d 888 (7th
Cir. 2017), where “Chicago’s zoning regulations . . . so severely limited
where shooting ranges may locate that no publicly accessible shooting
range . . . existed in Chicago.” Teixeira, 873 F.3d at 679 (citation,
internal alterations, and quotation marks omitted). “No analogous
restriction on the ability of . . . [c]ounty residents to purchase firearms
can be inferred from the complaint in this case.” Id. The panel therefore
concluded that “gun buyers have no right to have a gun store in a
particular location, at least as long as their access is not meaningfully
constrained.” Id. at 680 (emphasis added).
Under Teixeira’s rationale, this case is more like the Ezell cases than
Teixeira. The Orders prevented all County residents from acquiring
firearms and ammunition and maintaining the proficiency of their use at
firing ranges. Just as in the Ezell cases, the Orders therefore squarely
prohibited the very type of meaningful access that the Teixeira en banc
panel warned against. See id. at 680, 688.
MCDOUGALL V. COUNTY OF VENTURA 29
overall ban on gun sales would be untenable under Heller,
because a total prohibition would severely limit the ability of
citizens to acquire firearms,” Teixeira, 873 F.3d at 688 (first
emphasis added) (citation omitted)—which obviously
triggers strict scrutiny. As Judge Tallman noted in Teixeira,
“[a]ll would agree that a complete ban on the sale of firearms
and ammunition would be unconstitutional.” Teixeira,
873 F.3d at 693 (Tallman, J., concurring in part and
dissenting in part). Consistent with this court’s prior
hypothetical discussion of the very type of “complete ban”
at issue here, strict scrutiny applies.
In arguing against the application of strict scrutiny,
Appellees primarily rely on Silvester and its holding that
California’s 10-day waiting period between purchase and
possession of a firearm warranted intermediate scrutiny. In
determining the applicable level of scrutiny, the Silvester
panel reasoned that the contested regulation “simply requires
[the plaintiffs] to wait the incremental portion of the waiting
period that extends beyond the completion of the
background check.” 843 F.3d at 827. “The waiting period
[also] does not prevent any individual from owning a firearm
. . . .” Id. Given the “very small” effect of the waiting period
on the plaintiffs—who had already passed the background
check within the ten days—and the fact that “[t]here is . . .
nothing new in having to wait for the delivery of a weapon,”
the Silvester panel determined that the challenged regulation
did not place a “substantial burden on a Second Amendment
right” and therefore warranted intermediate scrutiny. Id.
But Silvester is inapplicable here for at least three
reasons. First, Silvester concerned no more than a 10-day
waiting period—nearly five times shorter than the Orders’
48-day effective ban on firearm and ammunition sales at
issue here. And for County residents who had not yet
30 MCDOUGALL V. COUNTY OF VENTURA
purchased a firearm before the Orders took effect, the 48-
day ban here was actually exacerbated by the 10-day waiting
period itself, resulting in a total ban of a 58 days—essentially
two months. Moreover, the delay at issue in Silvester was
finite—the plaintiffs only challenged the “incremental
period” between the passing of a background check and
possessing the purchased firearm, which only amounted to
no more than 10 days. But here, each Order promised that it
would remain effect until a certain date (which the County
extended) or “until it is extended, rescinded, superseded, or
amended in writing by the Health Officer.” 20 In other words,
the ban on protected Second Amendment activities would
continue until the government said it didn’t. The 10-day
waiting period at issue in Silvester was therefore much less
restrictive than the uncertain but eventual 48-day ban at issue
here.
Second, the appellants in Silvester already possessed at
least one firearm they could use for self-defense. They were
seeking to avoid the 10-day waiting period when purchasing
subsequent firearms. 843 F.3d at 818–19. But the Orders at
issue here prevented County residents who owned no firearm
at all before March 20, 2020, from obtaining any firearm
whatsoever for effectively two months, right in the middle
of a global crisis. Denying the ability to acquire a firearm
and ammunition at all is fundamentally different from
waiting a short time to receive an additional firearm. There
is a very real difference between a short, defined waiting
period to purchase an additional firearm, versus a two-
20
While Appellees also argue that the Orders were “in effect for a
finite period—from March 20 through May 7,” it is only when reviewing
the Orders with the benefit of hindsight that it appears finite. The text of
the Orders allowed for perpetual extensions.
MCDOUGALL V. COUNTY OF VENTURA 31
month ban on purchasing any firearm, ammunition, or
otherwise exercising your Second Amendment rights.
Third, Silvester’s rationale turned on the government’s
claimed interest in a “cooling off” period, which is not at
issue here. Here, the Orders were the County’s response in
a temporary time of crisis. Appellees urge that the
temporary nature somehow diminishes the burden on the
Second Amendment, but “[b]oth this court and the Supreme
Court have repeatedly held that the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Klein v. City of San
Clemente, 584 F.3d 1196, 1207–08 (9th Cir. 2009) (citation
and internal quotation marks omitted). Because First
Amendment principles guide the analysis of the burden’s
severity in the Second Amendment context, see Jackson,
746 F.3d at 961, 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. As Heller noted, the Second Amendment is
designed to preserve and foster “the right of self-
preservation,” which “permit[s] a citizen to repel force by
force when the intervention of society in his behalf, may be
too late to prevent an injury.” Heller, 554 U.S. at 595
32 MCDOUGALL V. COUNTY OF VENTURA
(internal alterations and quotation marks omitted) (quoting 1
Blackstone’s Commentaries at 145–146, n.42 (1803)). 21
The acute need for Second Amendment rights during
temporary crises was well-understood by our Founders. See
Teixeira, 873 F.3d at 686 (acknowledging that the Second
Amendment was “meant to be a strong moral check against
the usurpation and arbitrary power of rulers, and as a
necessary and efficient means of regaining rights when
temporarily overturned by usurpation.” (emphasis added)
(citation omitted)). Modern society agrees, as firearm and
ammunition sales have soared during the recent pandemic. 22
But if the government suspends these rights during times of
crises, the Second Amendment itself becomes meaningless
when it is needed most—especially to the victims of attacks.
The Orders imposed a far greater burden than the 10-day
delay at issue in Silvester. Their effective ban on the
21
This is particularly true in these turbulent times of rising crime
rates and mass police resignations due to low morale and the onslaught
of legislative reform. See, e.g., Eric Westervelt, Cops Say Low Morale
And Department Scrutiny Are Driving Them Away From The Job, NPR
(June 24, 2021), https://www.npr.org/2021/06/24/1009578809/cops-
say-low-morale-and-department-scrutiny-are-driving-them-away-from-
the-job (“In many places, police morale has plunged and retirements and
resignations have soared. . . . And the timing of these staffing problems
couldn’t be worse: multiple cities are seeing startling increases in
shootings and murders . . . .”).
22
Martha Bellisle, Ammunition shelves bare as U.S. gun sales
continue to soar, AP News (July 31, 2021), https://apnews.com/article/
sports-business-health-coronavirus-pandemic-gun-politics-86e61939eb
4ae1230e110ed6d7576b70 (“The COVID-19 pandemic, coupled with
record sales of firearms, has fueled a shortage of ammunition in the
United States that’s impacting law enforcement agencies, people seeking
personal protection, recreational shooters and hunters—and could deny
new gun owners the practice they need to handle their weapons safely.”).
MCDOUGALL V. COUNTY OF VENTURA 33
acquisition of firearms and ammunitions, and closure of all
firing ranges where County residents can safely maintain
their proficiency in the use of firearms, severely burdens the
core of the Second Amendment right. Strict scrutiny applies.
d. The Orders Fail Under Strict Scrutiny.
The Orders cannot survive strict scrutiny. “Under that
standard, the regulation is valid only if it is the least
restrictive means available to further a compelling
government interest.” Berger v. City of Seattle, 569 F.3d
1029, 1050 (9th Cir. 2009) (en banc).
The Orders attempt to “[s]tem[] the spread of COVID-
19,” which “is unquestionably a compelling interest.”
Roman Cath. Diocese, 141 S. Ct. at 67. But the recent
Supreme Court COVID cases compel the conclusion that the
Orders are not the least restrictive means to further this
compelling interest. The complete closure of all gun shops,
ammunition shops, and firing ranges is “far more restrictive
than any COVID-related regulations that have previously
come before the [Supreme] Court,” as those cases only
concerned regulations limiting the capacity at activities that
implicated fundamental rights, not an outright ban of those
activities altogether. Roman Cath. Diocese, 141 S. Ct. at 67
(citing Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct.
2603 (2020) (directive limiting in-person worship services
to 50 people); S. Bay United Pentecostal Church, 140 S. Ct.
at 1613 (Executive Order limiting in-person worship to
25% capacity or 100 people, whichever was lower)).
“[T]here are [also] many other less restrictive rules that
could be adopted to minimize the risk” of allowing gun
shops, ammunition shops, and firing ranges to remain open.
Roman Cath. Diocese, 141 S. Ct. at 67. Among other things,
the County could have opened gun shops, ammunition
shops, and firing ranges on an appointment-only basis, just
34 MCDOUGALL V. COUNTY OF VENTURA
like it eventually did for people who purchased a firearm
before the Orders took effect. See id. (determining that the
public health orders failed to satisfy strict scrutiny in part
because “[n]ot only is there no evidence that the applicants
have contributed to the spread of COVID-19 but there are
many other less restrictive rules that could be adopted to
minimize the risk”).
The Orders’ discriminatory impact on gun and
ammunition shops also emphasizes that they were not “the
least restrictive means available to further a compelling
government interest.” Berger, 569 F.3d at 1050. Just like in
Roman Catholic Diocese, the Orders allowed “essential”
businesses like bicycle repair shops and hardware stores to
remain open but forced venues that provide access to core
fundamental liberties—in this case, Second Amendment
rights—to close. See Roman Cath. Diocese, 141 S. Ct. at 69
(Gorsuch, J., concurring) (noting that New York City’s
designation of “essential businesses” included hardware
stores and bicycle repair shops, among other businesses). In
this somewhat unique scenario where governments are
grappling with a global pandemic, the risk of gun shops,
ammunition shops, and firing ranges remaining open have
nothing to do with the dangers typically associated with
firearms. Instead, just as in the recent Supreme Court
COVID cases involving religious liberty, all activities open
to the public in the County essentially pose the same risk of
furthering the spread of COVID by way of facilitating
continued public interaction. See Tandon, 141 S. Ct. at 1296
(“Comparability is concerned with the risks various
activities pose, not the reasons why people gather.”). And
there is nothing in the record suggesting that gun shops,
ammunition shops, or firing ranges posed a higher risk of
spreading COVID than, say, bicycle shops or hardware
stores.
MCDOUGALL V. COUNTY OF VENTURA 35
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. Such devaluation
directly undermines the strong protections the Constitution
was designed to protect, even through the “various crises of
human affairs.” McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316, 415 (1819) (emphasis omitted). The Orders’
discriminatory denigration of fundamental liberties reveals
that they are not the least restrictive means available, further
demonstrating their inability to survive strict scrutiny.
Roman Cath. Diocese, 141 S. Ct. at 67.
Ultimately, the issue boils down to the County’s
designation of “essential” versus “non-essential” businesses
and activities. While courts should afford some measure of
deference to local policy determinations, “the enshrinement
of constitutional rights necessarily takes certain policy
choices off the table.” Heller, 554 U.S. at 636. When a
government completely bans all acquisition of firearms and
ammunition by closing gun shops, ammunition shops, and
firing ranges, it’s one of those off-limits policy choices
squarely contemplated by Heller. See id. at 630. The Orders
cannot satisfy strict scrutiny.
e. The Orders Also Fail Intermediate Scrutiny.
Even if strict scrutiny did not apply, the Orders would
fail to satisfy intermediate scrutiny. “To satisfy intermediate
scrutiny, the government’s statutory objective must be
significant, substantial, or important, and there must be a
reasonable fit between the challenged law and that
objective.” Mai, 952 F.3d at 1115 (citation and internal
quotation marks omitted). “In considering whether [the
36 MCDOUGALL V. COUNTY OF VENTURA
challenged law] withstands intermediate scrutiny, we must
first define the governmental interest served by [the
challenged law], and determine whether it is substantial.”
Jackson, 746 F.3d at 968–69.
Here, as noted above, the Orders’ stated intent was to
“ensure that the maximum number of persons stay in their
places of residence to the maximum extent feasible, while
enabling essential services to continue, to slow the spread of
COVID-19 to the maximum extent possible.” The overall
intent of slowing the spread of COVID-19 is a substantial
government interest, see Roman Cath. Diocese, 141 S. Ct. at
67, so the Orders satisfy the first prong of intermediate
scrutiny.
But Appellants have failed to show that the Orders
reasonably fit the challenged objective. This circuit has
sometimes loosely applied the “reasonable fit” prong and
only required that the challenged regulation promote a
substantial government interest that would be achieved less
effectively absent the regulation. See, e.g., Mai, 952 F.3d
at 1116 (citation omitted); United States v. Singh, 979 F.3d
697, 725 (9th Cir. 2020) (citation omitted). Still, a majority
of judges in a recent en banc panel also reaffirmed that
reasonable fit in the Second Amendment context is not “less
exacting than [our] application of the standard in other kinds
of cases.” Duncan v. Bonta, 19 F.4th 1087, 1138 (9th Cir.
2021) (en banc) (Berzon, J., concurring). Regardless, there
are several related principles at play here that nonetheless
reveal that the government has failed to meet even the more
lenient version of the “fit” requirement that we have
sometimes applied.
The relevant related principles can be grouped into two
main categories. First, the government “must affirmatively
establish the reasonable fit we require.” See Bd. of Trs. of
MCDOUGALL V. COUNTY OF VENTURA 37
State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). “This
burden is not satisfied by mere speculation or conjecture,”
Edenfield v. Fane, 507 U.S. 761, 770 (1993), but by
“substantial evidence” that the challenged restrictions will
alleviate the harm. Turner Broad. Sys. v. FCC, 512 U.S.
622, 666 (1994). Though this court has not yet addressed
the requisite threshold for “substantial evidence,” it has,
when applying intermediate scrutiny, repeatedly relied on at
least some evidence or explanation from the government that
purportedly relates to and supports the restriction of Second
Amendment rights in particular. See, e.g., Jackson, 746 F.3d
at 965 (discussing evidence related to the particular dangers
associated with gun ownership in support of the city’s gun
regulation). 23 Second, when applying intermediate scrutiny,
courts must consider “less-burdensome alternatives,” City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417
n.13 (1993); and evaluate “exemptions and inconsistencies”
that undercut the reasonableness of the purported fit. See
Greater New Orleans Broad. Assn., Inc. v. United States,
527 U.S. 173, 190 (1999). 24
23
See also Mai, 952 F.3d at 1117; Pena, 898 F.3d at 980; Silvester,
843 F.3d at 828; Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015);
Chovan, 735 F.3d at 1140.
24
While Board of Trustees of State University of New York,
Edenfield, Turner Broadcasting System, Inc., City of Cincinnati, and
Greater New Orleans Broadcasting Association, Inc. address First
Amendment challenges, as noted above, First Amendment principles
inform the application of intermediate scrutiny in the Second
Amendment context—in fact, that’s where the “reasonable fit” test
originally came from. See Mai, 974 F.3d at 1103 (VanDyke, J.,
dissenting from the denial of rehearing en banc) (describing the history
of our Second Amendment intermediate scrutiny test). Moreover, our
sister circuits have considered less burdensome alternatives as relevant
to a proper analysis of restraints imposed on Second Amendment rights.
38 MCDOUGALL V. COUNTY OF VENTURA
Applying these principles, the County has failed to meet
its burden here. Appellees omit any evidence or
argumentation suggesting that the closure of gun shops,
ammunition shops, and firing ranges stems the spread of
COVID any more than the closure of bike shops, hardware
stores, and golfing ranges. Instead, Appellees’ one-sentence
justification on appeal of the Orders’ “reasonable fit” is that
“social isolation is considered useful as a tool to control the
spread of pandemic viral infections.” But this carte-blanche
rationale—that has nothing to do with the actual
fundamental right at issue—is riddled with exemptions and
inconsistencies. If social isolation is the paramount concern,
why allow bicycle shops, hardware stores, and golfing
ranges to remain open? As noted above, it ultimately boils
down to the government’s designation of “essential” and
“non-essential” businesses—but nowhere has the
government here explained why gun stores, ammunition
stores, and firing ranges are “non-essential” businesses while
bicycle shops, hardware stores, and golfing ranges are
“essential.”
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.
It’s not as if alternatives were unavailable: the County
eventually utilized one such alternative for those who had
purchased firearms before March 20 by allowing receipt of
those pre-purchased firearms on an appointment-only basis.
It declined to extend this option to those who had not yet
See, e.g., Heller v. District of Columbia, 801 F.3d 264, 277–78 (D.C. Cir.
2015); Ezell v. City of Chicago, 651 F.3d 684, 709 (7th Cir. 2011).
MCDOUGALL V. COUNTY OF VENTURA 39
purchased a firearm by March 20, however, without any
explanation. Indeed, the only evidence in the record that
specifically pertains to the actual Second Amendment rights
at issue directly undercuts the reasonableness of the fit:
CISA (the federal agency) had specifically identified
“workers supporting the operation of firearm or ammunition
. . . retailers . . . and shooting ranges” as “essential critical
infrastructure workers.” If the government actually has any
burden at all—which our court has repeatedly said it does,
even under intermediate scrutiny—then at a minimum it
means that the government must provide some explanation
that pertains to the specific risks associated with the
fundamental right at issue. It did not do so here, and
therefore failed to meet any burden in showing a reasonable
fit. Instead, it summarily devalued a fundamental right by
deeming businesses essential to the exercise of that right as
“non-essential,” without any proffered rationale whatsoever.
This cannot survive any type of heightened scrutiny where
the government bears some burden.
CONCLUSION
The district court erred in determining that Jacobson
applied to Appellants’ Second Amendment claim, and in the
alternative, that intermediate scrutiny applied. It also erred
in determining that the Orders survived even intermediate
scrutiny. We therefore reverse the district court’s order
granting Appellees’ motion to dismiss and remand for
further proceedings.
40 MCDOUGALL V. COUNTY OF VENTURA
KLEINFELD, Circuit Judge, concurring:
I concur in the result, but write separately for two
reasons. First, we need not reach the question whether strict
scrutiny applies, so I would not. While strict scrutiny may
be appropriate, as the majority concludes, nevertheless we
should not make more law than is necessary to decide the
case. Second, I wish to expand upon the absence of
justification in the record for what the County did.
The Supreme Court and we have held that rational basis
review is not appropriate to a statute (let alone a mere edict
by a county official, as here) challenged under the Second
Amendment. 1 We and other circuits have used First
Amendment analysis as a guide. 2 In Packingham v. North
Carolina, 3 a recent First Amendment challenge to a
prohibition against a registered sex offender accessing social
media sites, the Supreme Court explained that “to survive
intermediate scrutiny, a law must be ‘narrowly tailored to
serve a significant governmental interest.’” 4 The fit between
the governmental objective and the prohibition need not be
perfect, but it must be reasonable. 5 To survive intermediate
scrutiny, the government cannot “burden substantially more
1
See District of Columbia v. Heller, 554 U.S. 570, 628 n.27; Duncan
v. Bonta, __ F.4th __, (9th Cir. Nov. 30, 2021).
2
See Duncan v. Bonta, __ F.4th __, (9th Cir. Nov. 30, 2021);
Drummond v. Robinson Twp., 9 F.4th 217, 226 (3d Cir. 2021); Kanter v.
Barr, 919 F.3d 437, 448 (7th Cir. 2019); United States v. Chester,
628 F.3d 673, 682 (4th Cir. 2010).
3
137 S. Ct. 1730 (2017).
4
Packingham, 137 S. Ct. at 1736 (internal citation omitted).
5
See Duncan v. Bonta, __F.4th __, (9th Cir. Nov. 30, 2021).
MCDOUGALL V. COUNTY OF VENTURA 41
speech than is necessary to further the government’s
legitimate interests.” 6 A valid governmental interest (in
Packingham, keeping child molesters from using Facebook
and Twitter to find new victims) is not adequate to insulate
the restriction from all constitutional protections. 7 The State
must “me[e]t its burden to show that th[e] sweeping law is
necessary or legitimate to serve that purpose.” 8 While the
government’s burden of proof is not “unnecessarily rigid,”
the evidence in the record must still “fairly support” the
government’s position. 9 Of course, “we defer to reasonable
legislative judgments.” 10 In the case before us, the
challenged order is not a “legislative judgment,” merely an
edict by a subordinate official within the County executive,
presumably entitled to less deference than a legislative
judgment.
Thus, regardless of whatever deference this edict may
receive, 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. The County must show that
6
Packingham, 137 S. Ct. at 1736. (internal quotation marks and
citation omitted).
7
See Id.8
Id. at 1737.
9
Duncan, __ F.4th at __ (internal quotation marks and citation
omitted).
10
Id.42 MCDOUGALL V. COUNTY OF VENTURA
the evidence in the record establishes a reasonable fit of the
edict to the legitimate purpose.
Since the constitutional challenge in this case was
dismissed for failure to state a claim upon which relief could
be granted, for purposes of decision we must proceed on the
basis of the facts averred in the complaint, together with
documents incorporated by reference or judicially noticed. 11
The challenge arises from a series of orders issued by
Ventura County’s Public Health Medical Director and
Health Officer prohibiting the acquisition of firearms and
ammunition from licensed dealers, even if purchasers had
already paid for them, and prohibiting the operation of firing
ranges necessary for training and practice in the safe use of
firearms. 12
The structure of the orders was to require everyone in the
County to stay within their residence and to require all
businesses to close and to prohibit all travel, but with a series
of exceptions. Generally in the Anglo-American tradition,
everything is permitted except what is expressly prohibited.
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.
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.
11
Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.
2018).
12
First Amended Complaint ¶ 50–55.
MCDOUGALL V. COUNTY OF VENTURA 43
“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. The parties do not
disagree that gun stores and shooting ranges were ordered
closed, on pain of criminal penalties, 13 during the periods at
issue.
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. The
only document the County points to as justification is the
edict itself, in which its Health Officer recites in the
“Whereas” clauses that “social isolation is considered
useful” for this purpose. The County provides 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 State of California Public Health Officer had made
an exception to the statewide order confining people to their
residences for workers needed to “maintain continuity of
operations of the federal critical infrastructure sectors” of the
economy. 14 The federal government had advised that gun
stores should be treated as “essential critical infrastructure,”
but the County offers no justification whatsoever, let alone
13
Id. at ¶ 48–49.
14
Id. at ¶ 37–39.
44 MCDOUGALL V. COUNTY OF VENTURA
evidence, for why it did not so treat gun stores, as the State
exception and federal advisory memorandum did. The
federal guidance, ignored without any stated reason by the
County, deemed “workers supporting the operation of
firearm or ammunition product manufacturers, retailers,
importers, distributors, and shooting ranges” to be within the
“critical infrastructure workforce.”
The dramatically broad County Health Officer’s edict
established that anyone in the County could be arrested and
put in jail for myriad activities outside the home or for
engaging in commercial transactions other than those
explicitly excepted from the edict, yet the County offers no
evidence nor even any argument for the apparently arbitrary
list of exclusions. Nor does the County make any effort, not
by presenting evidence, nor even by presenting argument,
for why such constitutionally protected activities, whether
public speech, or going to church, or purchasing and
practicing with firearms and ammunition, were simply
banned, instead of accommodated with a reasonable fit to the
purpose of slowing the spread of the virus. The
government’s argument seems to be that so long as it
satisfies the first step of intermediate scrutiny, showing some
legitimate purpose, it has no burden under the second step,
to establish a reasonable fit with that purpose. If that were
correct, the County could order the closure of Mexican
restaurants but make an exception for French restaurants,
because the arbitrariness of that distinction would not matter
any more than the distinction between bicycling and
shooting at outdoor gun ranges. Such arbitrariness is not the
law.
MCDOUGALL V. COUNTY OF VENTURA 45
I therefore concur in reversing the district court. If,
under intermediate scrutiny in Packingham, 15 a child
molester cannot be prohibited from accessing social media
sites, because such a prohibition excessively restricts access
to legitimate speech, 16 then a fortiori a legitimate gun
purchaser cannot have his constitutional right to acquire
firearms and ammunition, and to develop and maintain
proficiency with them at outdoor shooting ranges, suspended
indefinitely under a “broad stroke” 17 prohibition riddled
with exceptions for other quite similar activities, without
more from the government other than the assertion that “the
law must be this broad” 18 to serve its purpose. On the record
before us, all we have is a series of orders allowing some
retailing of hardware and other consumer products but not
firearms or ammunition, and allowing some outdoor
activities such as golfing and bicycling but not shooting at
outdoor firing ranges. Nothing in the record explains why.
The County has simply neglected to make a record that could
justify its actions. Neither pandemic nor even war wipes
away the Constitution. 19
15
Packingham, 137 S. Ct. at 1737.
16
Id.17
Id.18
Id.19
See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).
46 MCDOUGALL V. COUNTY OF VENTURA
VANDYKE, Circuit Judge, concurring:
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,
MCDOUGALL V. COUNTY OF VENTURA 47
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 jump-
start 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
48 MCDOUGALL V. COUNTY OF VENTURA
draconic, can earn this circuit’s stamp of approval. Here
goes:
BACKGROUND
The rapid onset of the COVID-19
pandemic disrupted every facet of life across
the globe and has claimed millions of lives.
In the early days of the pandemic, when
information was scarce and panic was
setting in, governments were forced to take
immediate action. Accordingly, the County
of Ventura issued a series of health orders
(“Orders”) to slow the spread of the disease.
These Orders, among other things, required
the immediate closure of all non-essential
businesses, including firearm stores and
firing ranges. The county continually
updated and modified the Orders, and
allowed these businesses to reopen as soon
as it was safe to do so. All told, firearm
stores and ranges were closed for 48 days.
During that time, Plaintiffs sued the county,
alleging that these Orders impermissibly
burdened their Second Amendment rights.
DISCUSSION
A. Legal Framework
The Second Amendment states: “A well
regulated Militia, being necessary to the
security of a free State, the right of the
people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. In the
leading case on the Second Amendment, the
MCDOUGALL V. COUNTY OF VENTURA 49
Supreme Court invalidated a District of
Columbia regulation that banned possession
of handguns in the home and required other
firearms to generally be kept “unloaded and
disassembled or bound by a trigger lock or
similar device.” District of Columbia v.
Heller, 554 U.S. 570, 575 (2008). Two
years later, the Supreme Court incorporated
the Second Amendment against the states
and invalidated a Chicago handgun
possession ban similar to the one in Heller.
McDonald v. City of Chicago, 561 U.S. 742,
750 (2010). But in invalidating the
challenged regulations, both Heller and
McDonald explained that the rights
established by the Second Amendment are
“not unlimited.” Heller, 554 U.S. at 595;
McDonald, 561 U.S. at 786. 1
Our circuit, like most of our sister
circuits, have discerned from Heller and
McDonald a two-step framework for
analyzing Second Amendment claims. At
1
We really like this “not unlimited” language
from Heller, and cite it often and enthusiastically. See,
e.g., Young v. Hawaii, 992 F.3d 765, 782 (9th Cir.
2021) (en banc); Mai v. United States, 952 F.3d 1106,
1113 (9th Cir. 2020); Peruta v. Ctny. of San Diego,
824 F.3d 919, 928 (9th Cir. 2016) (en banc); Silvester
v. Harris, 843 F.3d 816, 819 (9th Cir. 2016); Silvester,
843 F.3d at 829 (Thomas, C.J., concurring); Chovan,
735 F.3d at 1133; United States v. Vongxay, 594 F.3d
1111, 1115 (9th Cir. 2010). One might conclude it is
the driving force in our circuit’s Second Amendment
jurisprudence.
50 MCDOUGALL V. COUNTY OF VENTURA
step one, our court looks to see if the
challenged law burdens conduct protected
by the Second Amendment by examining
the “historical understanding of the scope of
the right.” Silvester, 843 F.3d at 821
(quoting Heller, 554 U.S. at 625). If the law
is outside the historical scope of the Second
Amendment or falls within “presumptively
lawful regulations,” the law is upheld. Id.If the law does implicate conduct
protected by the Second Amendment, then
the court must continue to step two and
determine which level of scrutiny to apply.
See Chovan, 735 F.3d at 1136. The
appropriate level of scrutiny depends on
“(1) ‘how close the law comes to the core of
the Second Amendment right,’ and (2) ‘the
severity of the law’s burden on the right.’”
Id. at 1138 (quoting Ezell v. City of Chicago,
651 F.3d 684, 703 (7th Cir. 2011)). A law
that destroys the Second Amendment right
is unconstitutional under any level of
scrutiny; a law that both implicates the core
of the Second Amendment and severely
burdens that right is subject to strict
scrutiny; 2 all other laws are subject to
intermediate scrutiny. Young, 992 F.3d
at 784.
2
We refer to strict scrutiny as a theoretical
matter—a thought-experiment, really. Our court has
never ultimately applied strict scrutiny to any real-life
gun regulation.
MCDOUGALL V. COUNTY OF VENTURA 51
B. Application
a. Step One
We begin by first deciding if the Orders
burden conduct historically protected by the
Second Amendment. Such historical
analysis is not easy, “and the courts of
appeals have spilled considerable ink in
trying to navigate the Supreme Court’s
framework.” Pena v. Lindley, 898 F.3d 969,
976 (9th Cir. 2018). Yet history suggests
that delays in taking possession of a firearm
was not considered a substantial burden on
the Second Amendment:
Before the age of superstores
and superhighways, most
folks could not expect to take
possession of a firearm
immediately upon deciding to
purchase one. As a purely
practical matter, delivery took
time. Our 18th and 19th
century forebears knew
nothing about electronic
transmissions. Delays of a
week or more were not the
product of governmental
regulations, but such delays
had to be routinely accepted
as part of doing business.
Silvester, 843 F.3d at 827. Even with this
history as a guide, however, we are unable
to definitively rule on the historical pedigree
52 MCDOUGALL V. COUNTY OF VENTURA
of the county’s Orders. The parties did not
brief the historical contours of regulations
like these, and for good reason. The
complexity and novelty of the challenges
raised by COVID-19 are not easily mapped
onto 18th or 19th century practices and
understandings.
Therefore, we elect to follow the “well-
trodden and ‘judicious course’” of
assuming, rather than deciding, that the
regulation at hand burdens conduct
protected by the Second Amendment. Pena,
898 F.3d at 976 (quoting Woollard v.
Gallagher, 712 F.3d 865, 876 (4th Cir.
2013)); see also Mai, 952 F.3d at 1114–15;
Fyock v. City of Sunnyvale, 779 F.3d 991,
997 (9th Cir. 2015). 3
3
Here’s the deal: Whenever we think the history
helps us in upholding the challenged regulation, we’re
happy to rely on it in step one of our test. See, e.g.,
Young, 992 F.3d at 784–826. But most of the time the
history either doesn’t help us uphold the gun
regulation, is indeterminate, or is just really hard to
evaluate. So usually we just skip over step one of our
“two-step” test by assuming the challenged regulation
burdens Second Amendment-protected conduct. But
that’s okay, because the real beauty of our two-step
test is its amazing flexibility at the various stages of
step two in balancing the government’s asserted
interest versus the claimed impact on the “core” of the
Second Amendment.
MCDOUGALL V. COUNTY OF VENTURA 53
b. Step Two
Assuming without deciding that the
Orders burden conduct protected by the
Second Amendment, we must now
determine which level of scrutiny applies.
Again, this is determined by looking at
“(1) ‘how close the law comes to the core of
the Second Amendment right,’ and (2) ‘the
severity of the law’s burden on the right.’”
Chovan, 735 F.3d at 1138 (quoting Ezell,
651 F.3d at 703). We have explained that
intermediate scrutiny is appropriate “when a
challenged regulation does not place a
substantial burden on Second Amendment
rights.” Silvester, 843 F.3d at 827. 4 Here,
we can’t say the Orders imposed a severe
burden on anyone’s ability to exercise their
4
It is important to recognize that all the real work
in our Second Amendment test is done right here.
First, notice how much discretion this test gives us
judges! There is so much flexibility in deciding
whether anything short of an outright permanent ban
(which nobody is dumb enough to enact anymore)
places a “severe burden” on the Second Amendment.
We can always point to stuff that isn’t banned in
concluding this particular regulation isn’t a
“substantial burden.” And second, once we’ve
concluded that a challenged regulation does not place
a “substantial burden on Second Amendment rights,”
it’s really game over. A regulation that we’ve already
determined does not substantially burden the Second
Amendment can be upheld easy-peasy under our
watered-down intermediate scrutiny test.
54 MCDOUGALL V. COUNTY OF VENTURA
Second Amendment rights. 5 The Orders
only temporarily delayed the sale of
firearms and use of firearms at firing ranges,
which is a far cry from the complete and
permanent ban of handguns as invalidated in
Heller. 6 Moreover, we have already upheld
government regulations that result in the
temporary delay of an individual’s ability to
take possession of firearms under
intermediate scrutiny. See Silvester,
843 F.3d at 827. And here, as in Silvester,
“[t]he regulation does not prevent, restrict,
or place any conditions on how guns are
stored or used after a purchaser takes
possession.” Id. (emphasis added).
Finally, a delay in acquiring a firearm is
hardly a foreign concept to California
residents. As Silvester explained, California
generally requires firearm purchasers to
undergo a background check, in which the
“California DOJ has the authority to delay
the delivery of a firearm for up to thirty days
in order to complete the background check.”
5
“Severe” is a very strong word, and a real
workhorse when italicized.
6
Another one of our favorite tricks. Once you
frame Heller as speaking only to complete and total
bans, it’s easy to side-step its holding. All a judge has
to do is pretend the Supreme Court would have
allowed anything short of DC’s drastic prohibition in
Heller, instead of viewing Heller as easily correcting
an especially egregious constitutional violation.
MCDOUGALL V. COUNTY OF VENTURA 55
Id. at 825 (citing Cal. Penal Code
§ 28220(f)). 7
We conclude therefore that the Orders
do not severely burden any Second
Amendment right implicating the core of the
Second Amendment, so intermediate
scrutiny is appropriate. 8
c. Intermediate Scrutiny
Applying intermediate scrutiny, we
require “(1) the government’s stated
objective to be significant, substantial, or
important; and (2) a reasonable fit between
the challenged regulation and the asserted
objective.” Chovan, 735 F.3d at 1139.
The first prong is certainly met here. 9
The Supreme Court has stated that
7
Sure, the typical delay in Silvester was much
shorter than the almost two-month delay here. But this
is merely a difference in degree, not kind, and we don’t
think the difference is so “severe” as to merit strict
scrutiny.
8
Whew. Hard work done. It’s all downhill from
here!
9
The first prong is always met in Second
Amendment cases. Guns are dangerous, after all, so
the government’s interest in ameliorating such danger
is always important. At first we were worried this case
might be a problem, because the regulations here don’t
really have any nexus to the dangerousness of guns.
But COVID-19 is dangerous too, so that substitutes in
nicely.
56 MCDOUGALL V. COUNTY OF VENTURA
“[s]temming the spread of COVID-19 is
unquestionably a compelling interest,”
Roman Cath. Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 67 (2020), and
petitioners do not claim otherwise. What
petitioners do challenge is that the Orders
are not a reasonable fit with the stated
objective of slowing the spread of COVID-
19, since other stores remained open while
firearm stores and ranges were closed.
But this argument misconstrues
intermediate scrutiny. “The [intermediate
scrutiny] test is not a strict one. We have
said that intermediate scrutiny does not
require the least restrictive means of
furthering a given end.” 10 Silvester,
843 F.3d at 827 (internal citation and
quotation marks omitted). The State is
10
We’ve really gotten a lot of mileage out of this
concept. One might think that because the “first
prong” (government’s important interest) will always
be met in Second Amendment cases (because guns are
inherently dangerous), that the “reasonable fit” part of
the test would take on special significance. But
thankfully the opposite is true. We’ve been able to
water down the “fit” part of the test for Second
Amendment cases to such an extent that many of our
judges have been forced distance our Second
Amendment case law from the First Amendment case
law from which it was supposedly borrowed. See
Duncan, 19 F.4th at 1116 (Graber, J., concurring) (“To
be sure, the First Amendment and the Second
Amendment differ in many important respects
(including text and purpose), and the analogy is
imperfect at best.”).
MCDOUGALL V. COUNTY OF VENTURA 57
required to show only that the regulation
“promotes a substantial government interest
that would be achieved less effectively
absent the regulation.” 11 Id. at 829 (quoting
Fyock, 779 F.3d at 1000).
The Orders, in preventing employees
and customers from interacting indoors
during the COVID-19 pandemic, clearly
promote the county’s interest in slowing the
spread of COVID-19 more than if no such
Orders were issued. Plaintiffs argue that
Ventura County failed to meet this standard
because it did not offer any evidence
connecting the spread of COVID-19 to
firearm retailers or firing ranges. But this
again places too great a burden on the
county. Localities “must be allowed a
reasonable opportunity to experiment with
solutions to admittedly serious problems,”
Jackson, 746 F.3d at 969–70 (internal
citation omitted), and this is even more true
when faced with a global pandemic.
Especially in the beginning days of the
COVID-19 pandemic, the type of hard
evidence Plaintiffs demand was simply not
available, or at a minimum, rapidly
evolving.
11
I know this sounds a lot like rational basis
review. After all, if a government interest would be
“achieved [more] effectively absent the [challenged]
regulation,” it’s hard to see how that regulation would
survive even rational basis scrutiny. But trust us, this
is heightened scrutiny. So very heightened.
58 MCDOUGALL V. COUNTY OF VENTURA
Plaintiffs’ demands are also inconsistent
with our case law. When officials are forced
to “‘act in areas fraught with medical and
scientific uncertainties,’ their latitude ‘must
be especially broad.’” S. Bay United
Pentecostal Church v. Newsom, 140 S. Ct.
1613, 1614 (2020) (Roberts, C.J.,
concurring) (quoting Marshall v. United
States, 414 U.S. 417, 427 (1974)). But this
is not to say Ventura County acted
irrationally. There is a clear and straight-
forward logic underlying the Orders: limit to
the extent possible any interactions that
could facilitate the spread of COVID-19.
These Orders reflected the then-current
scientific understanding of COVID-19, as
reflected in the social distancing
requirements and the closing of non-
essential businesses. And this court has
repeatedly allowed common-sense to
undergird a government’s evidence when
justifying a regulation in the Second
Amendment context. See, e.g., Chovan,
735 at 1135 (citing approvingly the Seventh
Circuit for upholding a challenged
regulation “[i]n light of ‘[b]oth logic and
data’” (quoting United States v. Skoien,
614 F.3d 638, 642 (7th Cir. 2010)))
(emphasis added); Silvester, 843 F.3d at 828
(concluding that the empirical studies
available supported “the common sense
MCDOUGALL V. COUNTY OF VENTURA 59
understanding” behind the waiting period
regulation at issue). 12
* * *
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).
12
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.
60 MCDOUGALL V. COUNTY OF VENTURA
For these reasons, we affirm the district
court’s dismissal of Plaintiffs’ complaint for
failure to state a claim.
You’re welcome.