Another Amazing and Likely Short-Lived Victory in the 9th Circuit

 McDougall v. County of Ventura (9th Cir. 2022):

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 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.

This is a twofer: a "specific, constitutionally enumerated right" must be evaluated using strict scrutiny and also use of less than strict scrutiny in Jacobson for requiring vaccinations cannot be used if such an order violates an enumerated right.  Would a person's sincere religious objections to vaccination defeat Jacobson?  Freedom of exercise of religion would certainly fit.  The government would need a less restrictive method to solve the problem than mandatory vaccination.