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Appellate Court Rules LA, Ventura Counties Violated 2nd Amendment During Pandemic

‘This is what happens when authoritarian governments used COVID as an excuse to attack Second Amendment rights’

By Evan Symon, January 21, 2022 2:42 am

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled on Thursday that Los Angeles County and Ventura County violated the second amendment during the COVID-19 pandemic in 2020 by shutting down gun and ammunition stores, reversing an earlier District Court ruling.

In 2020, both counties had marked gun and ammunition stores as non-essential during the early days of the pandemic, having them legally shut down to help control the spread of COVID-19.

Court cases were immediately filed against both counties as a result of the order on behalf of gun stores, as well as other businesses marked as non-essential. While LA County’s closure only lasted 11 days, Ventura County’s went on for 48 days, leading many to seek weapons and ammo outside the County.

While some groups such as County gun clubs and the NRA filed suits over this action, the largest case was formed by the Second Amendment Foundation, the California Gun Rights Foundation, and the Firearms Policy Coalition. In their suit, they sued Ventura County, Los Angeles County, and other groups including the Ventura County Public Health Care Agency.

McDougall v. Ventura County was heard first in lower courts in 2020 and 2021, with the U.S. District Court ultimately ruling against Kelly Ann McDougall and the gun group plaintiffs.

“The closure of non-essential businesses, including firearms and ammunition retailers, reasonably fits the City’s and County’s stated objectives of reducing the spread of this disease,” wrote U.S. District Judge Andre Birotte Jr.

Non-plussed, the gun groups appealed to the U.S. Circuit Court of Appeals where the case was argued last year in Pasadena.

However, instead of agreeing with the lower courts, the three-judge panel said that their previous rulings on the matter did indeed violate the second amendment, and that gun stores were in fact not covered under the non-essential business shutdown orders.

“The Second Amendment means nothing if the government can prohibit all persons from acquiring any firearm or ammunition,” said Appellate Court Judge Lawrence Van Dyke in his ruling on Thursday. “But that’s what happened in this case.

“Because buyers can obtain guns only by personally going to gun stores in California, Ventura County’s 48-day closure of gun shops, ammunition shops and firing ranges wholly prevented law-abiding citizens in the County from realizing their right to keep and bear arms.

“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.”

9th Circuit reverses District Court decision

Firearms groups as well as second amendment activists celebrated the ruling on Thursday, with many noting that the lawsuit was expected due to the infringement of second amendment rights.

“This is what happens when authoritarian governments used COVID as an excuse to attack Second Amendment rights,” said Firearms Policy Coalition vice president of programs Adam Kraut in a statement.

Legal experts also noted, that with the Appellate court victory, the ruling can stand as precedent in case of another large business shutdown in the future.

“As long as it isn’t overturned by the whole Appellate Court or the Supreme Court, California can’t close down gun stores like this again, not even during another pandemic,” said Enrico Moro, a New York lawyer who has been involved in firearms cases across the country in the past, to the Globe on Thursday. “You can write it up to protection or the need to hunt or what have you. But the bottom line is restricting weapon and ammo sales like that simply breaks the second amendment. And with more of a conservative bend in courts in recent years, especially the Supreme Court, trying to appeal this will be tough to say the least.”

However, County officials have said that they would be evaluating what to do next following their loss on Thursday, possibly appealing it to the entire 9th Circuit to review or petitioning it to the U.S. Supreme Court.

“Ventura County believes the case was correctly decided at the District Court level and is disappointed with the three-judge panel’s decision,” said county spokeswoman Ashley Bautista in an email to the press. “Officials are reviewing the decision and evaluating our options and next steps.”

A decision on whether to pursue further legal action is expected in the coming weeks.

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