Even though Los Angeles County Sheriff Alex Villanueva has reluctantly agreed that gun stores can open in his jurisdictions, a lawsuit challenging his earlier closures is still winding its way through the federal court system, and Monday afternoon U.S. District Judge Andre Birotte ruled against the Second Amendment organizations that brought the suit, refusing their request for a temporary injunction and setting up the possibility that Villanueva could once again order gun stores to close.
In his decision, Birotte declared that Los Angeles County and the state of California were within their emergency powers to close gun stores, ruling that the orders should be viewed under an intermediate standard of judicial scrutiny. That muddy middle legal ground allows for judges like Birotte to sign off on almost any gun control law that doesn’t amount to a complete and permanent ban on entire classes of firearms. As the judge wrote in his order denying the temporary injunction:
In applying intermediate scrutiny to the County and City Orders, the Court must consider (1) whether the government’s stated objective is significant, substantial, or important, and (2) whether there is a reasonable fit between the challenged regulation and the asserted objective. See Chovan, 735 F.3d at 1139. The City’s and County’s stated objective—reducing the spread of COVID-19, a highly dangerous and infectious disease—undoubtedly constitutes an important government objective. Moreover, because this disease spreads where “[a]n infected person coughs, sneezes, or otherwise expels aerosolized droplets containing the virus,” (Dkt. No. 21) 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. Accordingly, Plaintiffs fail to demonstrate a likelihood of success on the merits of the Second Amendment claim against the County and City Orders.
The ruling by the Obama-appointed judge isn’t all that surprising, honestly. Courts around the country have been relying on intermediate scrutiny for years in order to uphold gun control laws, which is one reason why gun owners are hopeful that the U.S. Supreme Court’s upcoming decision in NYSRPA v NYC will declare that strict scrutiny, or the highest level of judicial review, is warranted when it comes to laws dealing with our right to keep and bear arms.
In his order, Birotte never really explained why he believes that firearms retailers are non-essential businesses, especially given the fact that individuals hoping to purchase a firearm for the first time would be barred from doing so if gun stores are not allowed to open. In that respect, orders shutting down gun stores are just as bad, if not worse, than the handgun ban in Washington, D.C. that was struck down by the Supreme Court in Heller.
Birotte’s ruling doesn’t put an end to the litigation, which will undoubtably be appealed to the 9th Circuit. It does, however, raise the possibility that Sheriff Villanueva will once again reverse course and order gun stores shuttered, depriving residents of Los Angeles County the ability to purchase firearms and ammunition for self-defense during a state of emergency.