Zealous advocates for pandemic restrictions ought to pay careful attention to a recent federal court ruling if they want to understand why many Americans are so leery of their endless and inconsistent public-health directives. Officials often used their newfound emergency powers to impose policies they never could accomplish through the normal channels.
In March 2020, officials in Ventura County banned residents from purchasing firearms or ammunition, or going to shooting ranges, for 48 days under emergency stay-at-home orders that restricted commerce to government-declared “essential” businesses. Neighboring Los Angeles County imposed similar orders that lasted 11 days. The counties — governed largely by gun-control-supporting officials — declared that gun stores were not essential.
In California, the only legal way to purchase a firearm or ammunition is by showing up in person at a licensed gun dealer (even for private person-to-person sales), which meant that county officials suspended residents’ Second Amendment rights during that period. Given the open-ended nature of the emergency orders, local and state officials could have curtailed such rights much longer, so gun-rights groups filed a federal lawsuit. It was important to put some limits on these emergency restrictions.
Lower courts sided with the counties, with one judge in the Los Angeles situation finding that “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.” While gun stores are by no means the most important form of commerce, unlike restaurants and appliance stores they happen to enjoy some special constitutional protections.
Fortunately, a three-judge panel of the 9th Circuit Court of Appeals understood the obvious problem. “‘[T]he right of the people to keep and bear Arms,’ U.S. Constitutional Amendment 2, means nothing if the government can prohibit all persons from acquiring any firearm or ammunition,” wrote Judge Lawrence VanDyke, in the Ventura County ruling. “But that’s what happened in this case.”
In a separate but similar ruling, the judges found that Los Angeles County’s rules “burdened conduct protected by the Second Amendment…. While the 11-day mandated closure at issue here is shorter than the 48-day closure … 11 days instantly becomes 21 days when adding California’s 10-day waiting period for acquiring firearms.”
The judges also importantly noted that “the orders clearly indicated could be perpetually extended if the county so decided” and that “severely burdens the core of the Second Amendment right at a time of crisis, precisely when the need to exercise that right becomes most acute (emphasis added).”
This is no small matter. Shutting any private business is a troubling matter, but the gun-store edicts were more akin to suspending speech during a crisis. The court made that very point, as it quoted from the appellants’ argument in the Ventura County case:
If firearms and ammunition could be purchased online like other constitutionally 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.
During the same time period, Gov. Gavin Newsom was busy governing by edict. Republican Assemblyman Kevin Kiley, R-Rocklin, published a 138-page document detailing the governor’s 53 executive orders and 400 instances of him unilaterally using his newfound executive powers to change the law. Some of the orders were arguably legitimate or at least directly tied to health-related issues, but many were the embodiment of government overreach.
It’s an obvious fact that all government officials will gleefully exert any new powers. This applies to Republicans, too, although Democrats have been most zealous in using the pandemic to achieve their ends. Not to downplay the seriousness of COVID-19, but one of the reasons we’ll continue enduring the pandemic’s “new normal” is that government officials also are reluctant to relinquish any new rulemaking authority they are given (or have taken).
Why go back to the days of having to pass far-reaching measures legislatively rather than via edict? That’s no fun. Fortunately, the courts have reined in a few of the egregious abuses, but there’s certainly a pressing need for more judicial oversight, as we saw in the 9th circuit. As Aesop wrote, “Any excuse will serve a tyrant.” And COVID-19 provided a handy excuse.
Steven Greenhut is Western region director for the R Street Institute. Write to him at email@example.com.