Right to Bear Arms Affirmed in Major Ruling

Californians are celebrating a Ninth Circuit ruling that found Ventura County officials violated citizens’ constitutionally protected Second Amendment rights when they shuttered gun stores and shooting ranges in the early days of the COVID-19 lockdowns.

On January 20, 2022, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously ruled in the case of McDougall v. County of Ventura that county public health orders banning gun shops, ammunition shops and firing ranges were unconstitutional.

Circuit Judges Andrew Kleinfeld, Ryan D. Nelson, and Lawrence VanDyke issued a reversal of a District Court’s earlier dismissal of allegations that the coronavirus restrictions prohibited citizens from exercising their right to bear arms, which includes purchasing guns and ammunition, as well as the use of shooting ranges.

In a written opinion, the Donald Trump-appointed Judge VanDyke stated that “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.”

He continued, “[T]hese blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.”

The panel maintained that the County could not justify its decision to close gun and ammunition stores when other businesses “that had no bearing on fundamental rights” were allowed to stay open. Furthermore, the County “had no evidence 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 Orders failed to satisfy any level of heightened scrutiny,” wrote VanDyke, after an examination of the County’s orders via a legal review process known as “scrutiny analysis.”

Co-counsel for the plaintiffs Raymond DiGuiseppe, who argued the case in the Ninth Circuit proceedings, stated that “the facts are the Ventura County defendants made it a crime for individuals to patronize and operate firearm and ammunition retailers, and worse, these government officials banned travel for firearms and ammunition as ‘non-essential.’ Those are precisely the kinds of actions our Constitution was designed to protect against.”

In a statement obtained by Reuters, Ashley Bautista, a spokesman for Ventura County, called the panel ruling “disappointing” and said the County was evaluating what steps to take next.

Lawyer Ronda Kennedy represented plaintiff Donald McDougall, a Ventura resident who passed away before the final judgment was reached, though he remained a client throughout the history of the case represented by a trustee of his estate. Joining McDougall in the case was Ventura resident Juliana Garcia, as well as the Second Amendment advocacy groups Firearms Policy Coalition (FPC), Second Amendment Foundation (SAF) and California Gun Rights Foundation (CGF).

Defendants included Ventura County Sheriff William Ayub; William T. Foley, director of the Ventura County Public Health Care Agency; Robert Levin, public health medical director and health officer for Defendant County of Ventura, and the County of Ventura.

The first complaint against the County was filed by Kennedy and DiGuiseppe in March 2020, when the health orders took effect. In May 2020, days before the court was scheduled to hear arguments for a preliminary injunction against the County’s ban, the County filed a motion to reopen the gun shops and ammunition dealers.

“County of Ventura officials were either outrageously ignorant or arrogant to think they had the authority to redefine fundamental, individual rights.”

Brandon Combs

“Ultimately, they have already admitted in court that they violated constitutionally enumerated rights,” commented Adam Kraut, FPC director of legal strategy, as the county moved to reopen.

At that time, FPC president Brandon Combs remarked that “the County of Ventura officials were either outrageously ignorant or arrogant to think they had the authority to redline fundamental, individual rights. They should remember that they are just local officials on a power trip, not dictators, and we will continue to seek justice for their abusive constitutional violations.”

Alan M. Gottlieb, SAF founder and executive vice president, also spoke out, stating that “this legal action was and remains about winning firearms freedom one lawsuit at a time. The County choosing to re-open firearm and ammunition transactions rather than face our motion in court is a victory for gun owners and the Second Amendment.”

Lawyers for the plaintiffs would go on to file two more rounds of appeals in the Ninth Circuit, accusing the County of unjust misconduct, with the FPC filing an additional, separate lawsuit against the County for its ban of shooting ranges.

In a phone interview with the Conejo Guardian, Kennedy said the Ninth Circuit panel of judges “made the right decision,” adding that “it’s a shame that it cost the County of Ventura taxpayers all of that money to come to that conclusion.”

DiGuiseppi wrote in a text that “the decision in McDougall undoubtedly was the right outcome.”

Kennedy went on to sharply criticize the Ventura County Board of Supervisors for enforcing the orders in the first place and for not standing up and defending constitutional rights.

“I fought for this county and will continue to fight for this country,” she said. Kennedy is currently running for U.S. Congress in California’s 30th district against Democrat Adam Schiff.

“They [public health officials and the Board of Supervisors] made it a crime to leave the county to purchase a gun from another county,” remarked Kennedy. “The county deemed gun stores non-essential, so if you left the county to purchase a gun you would be guilty of leaving for a non-essential purpose and therefore committing a misdemeanor.”

Elsewhere, in a separate federal lawsuit, Martinez v. Villanueva, the Ninth Circuit panel ruled similarly that Los Angeles County also violated the Second Amendment when it barred gun stores from operating for 11 days during the onset of COVID.

In that case, defendants filed a motion for a 14-day extension for filing a petition for a rehearing. Defendants in McDougall, however, have not filed a motion for extension. When reached for comment, assistant county counsel Christine Renshaw said she could not discuss the case as “litigation is still pending.” It is unclear what she meant by her statement, as McDougall appears to be case closed.