California county's pandemic gun store closures get new review by 9th Circuit

An AR-15 upper receiver nicknamed "The Balloter" is seen for sale at Firearms Unknown, a gun store in Oceanside, California, U.S., April 12, 2021. REUTERS/Bing Guan
  • 9th Circuit to rehear en banc case challenging Ventura County's gun shop closure orders
  • Judge wrote unusual "alternative" opinion criticizing 9th Circuit's 2nd Amendment approach

(Reuters) - A federal appeals court on Tuesday said it would reconsider a decision by a panel of three Republican-appointed judges holding that a California county's mandates forcing gun shops to close to combat the COVID-19 pandemic were unconstitutional.

The 9th U.S. Circuit Court of Appeals' decision to rehear the case was predicted by the author of the court's January ruling, who in an unusual move had penned an "alternative" opinion to prove his criticisms of the court's approach to the 2nd Amendment.

U.S. Circuit Judge Lawrence VanDyke, an appointee of former Republican President Donald Trump, at the time wrote that orders Ventura County adopted at the pandemic's onset in March 2020 barred people from realizing their right to keep and bear arms.

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He reached that decision in a lawsuit by would-be gun owners and gun-rights advocacy groups including the Second Amendment Foundation which said the county's rules violated the U.S. Constitution's 2nd Amendment.

VanDyke, a frequent critic of 9th Circuit's precedents, in a concurring opinion to his own ruling acknowledged that most judges in the liberal-leaning circuit would disagree with his decision and predicted the court would take the case en banc.

He called the circuit's approach to 2nd Amendment challenges "exceptionally malleable" and authored an alternative opinion favoring Ventura County to "demonstrate just how easy it is to reach any desired conclusion under our current framework."

An unnamed judge last month called for a vote to determine whether the case should be reheard en banc, and on Tuesday, Chief U.S. Circuit Judge Mary Murguia, an appointee of former Democratic President Barack Obama, said the court had voted to do so.

While in other circuits an en banc court consists of all active judges, in the 9th Circuit, the nation's largest federal appellate court, the chief judge and 10 other random judges hear the case. Oral arguments are expected in late June.

"Judge VanDyke was right in his prediction that this case would go up on en banc review," Raymond DiGuiseppe, a lawyer for the plaintiffs, said in a statement. "He was also right in his opinion on the important legal issues that the case presents."

A Ventura County spokesperson did not respond to a request for comment.

The cases in McDougall v. Ventura County, 9th U.S. Circuit Court of Appeals, No. 20-56220.

For the plaintiffs: Raymond DiGuiseppe of The DiGuiseppe Law Firm

For Ventura County: Assistant County Counsel Christine Renshaw

For Los Angeles County: Paul Beach of Lawrence Beach Allen & Choi

(NOTE: This story has been updated with a comment from the plaintiffs' lawyer.)

Read more:

California counties' pandemic gun store closures unconstitutional, court rules

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.