{"id":31868,"date":"2022-01-27T19:37:50","date_gmt":"2022-01-27T19:37:50","guid":{"rendered":"https:\/\/onlygunsandmoney.com\/?p=31868"},"modified":"2022-01-27T19:45:39","modified_gmt":"2022-01-27T19:45:39","slug":"best-concurring-opinion-evah","status":"publish","type":"post","link":"https:\/\/onlygunsandmoney.com\/?p=31868","title":{"rendered":"Best Concurring Opinion Evah!"},"content":{"rendered":"<div class='__iawmlf-post-loop-links' style='display:none;' data-iawmlf-post-links='[{&quot;id&quot;:3297,&quot;href&quot;:&quot;https:\\\/\\\/cdn.ca9.uscourts.gov\\\/datastore\\\/opinions\\\/2022\\\/01\\\/20\\\/20-56220.pdf&quot;,&quot;archived_href&quot;:&quot;&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[],&quot;broken&quot;:false,&quot;last_checked&quot;:null,&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:1707,&quot;href&quot;:&quot;https:\\\/\\\/www.fjc.gov\\\/history\\\/judges\\\/vandyke-lawrence-james-christopher&quot;,&quot;archived_href&quot;:&quot;https:\\\/\\\/web-wp.archive.org\\\/web\\\/20260322010727\\\/https:\\\/\\\/www.fjc.gov\\\/history\\\/judges\\\/vandyke-lawrence-james-christopher&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[{&quot;date&quot;:&quot;2026-04-15 19:54:05&quot;,&quot;http_code&quot;:200},{&quot;date&quot;:&quot;2026-04-19 11:29:57&quot;,&quot;http_code&quot;:503},{&quot;date&quot;:&quot;2026-04-23 23:40:47&quot;,&quot;http_code&quot;:200},{&quot;date&quot;:&quot;2026-04-27 16:32:03&quot;,&quot;http_code&quot;:200}],&quot;broken&quot;:false,&quot;last_checked&quot;:{&quot;date&quot;:&quot;2026-04-27 16:32:03&quot;,&quot;http_code&quot;:200},&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:3298,&quot;href&quot;:&quot;https:\\\/\\\/abovethelaw.com\\\/2021\\\/12\\\/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents&quot;,&quot;archived_href&quot;:&quot;&quot;,&quot;redirect_href&quot;:&quot;http:\\\/\\\/abovethelaw.com\\\/2021\\\/12\\\/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents\\\/&quot;,&quot;checks&quot;:[],&quot;broken&quot;:false,&quot;last_checked&quot;:null,&quot;process&quot;:&quot;done&quot;}]'><\/div>\n<p>Judge Lawrence VanDyke wrote the <strong><a href=\"https:\/\/cdn.ca9.uscourts.gov\/datastore\/opinions\/2022\/01\/20\/20-56220.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">court&#8217;s opinion in <em>McDougall v. Ventura County<\/em> (California)<\/a><\/strong>. It was a recent 9th Circuit Court of Appeals decision that found Ventura County&#8217;s public health order closing of gun shops, ammo stores, and shooting ranges for 48 days violated the Second Amendment. <\/p>\n\n\n\n<p>Judge VanDyke was <strong><a href=\"https:\/\/www.fjc.gov\/history\/judges\/vandyke-lawrence-james-christopher\" target=\"_blank\" rel=\"noreferrer noopener\">appointed to the 9th Circuit by President Donald Tru<\/a><\/strong>mp. He had previously served as the Solicitor General for both the states of Montana and Nevada as well as Assistant Solicitor General for Texas. VanDyke earned undergraduate and graduate degrees in engineering before attending Harvard Law School. <\/p>\n\n\n\n<div class=\"wp-block-image\"><figure class=\"aligncenter\"><img decoding=\"async\" src=\"https:\/\/www.gannett-cdn.com\/presto\/2019\/09\/23\/PGRF\/74283bef-36a0-45bf-95c8-b5ed847858a9-Lawrence-VanDyke.jpg?auto=webp&amp;crop=418,236,x0,y0&amp;format=pjpg&amp;width=1200\" alt=\"VanDyke gets appeals court seat despite Cortez Masto, Rosen protest\"\/><\/figure><\/div>\n\n\n\n<p>Judge VanDyke did something quite unusual. He actually wrote a concurring opinion to the court&#8217;s opinion that he himself had written. <\/p>\n\n\n\n<p>Why, you ask, would a judge write a concurring opinion to his own opinion? VanDyke, knowing that virtually all Second Amendment wins in the 9th Circuit get overturned <em>en banc<\/em> by the court, wanted to point out the absurdity of those opinions by giving the court a draft <em>en banc<\/em> opinion.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\"><p>Given both of these realities\u2014that (1) no firearm-related ban or regulation ever ultimately fails our circuit\u2019s Second Amendment review, and (2) that review is effectively standardless and imposes no burden on the government\u2014it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former. Those who know our court well know that all of our judges<br>are very busy and that it\u2019s a lot of work for any judge to call a panel decision en banc. A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion. Since our court\u2019s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn\u2019t write an alternative draft opinion that<br>will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win for everyone.<\/p><\/blockquote>\n\n\n\n<p>The real beauty of VanDyke&#8217;s concurrence lies within the footnotes where he gives his snarkiness free rein.<\/p>\n\n\n\n<p>You have gems like this:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\"><p>We refer to strict scrutiny as a theoretical matter\u2014a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.<\/p><\/blockquote>\n\n\n\n<p>And this:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\"><p>Here\u2019s the deal: Whenever we think the history helps us in upholding the challenged regulation, we\u2019re happy to rely on it in step one of our test. See, e.g., Young, 992 F.3d at 784\u2013826. But most of the time the<br>history either doesn\u2019t help us uphold the gun regulation, is indeterminate, or is just really hard to evaluate. So usually we just skip over step one of our \u201ctwo-step\u201d test by assuming the challenged regulation burdens Second Amendment-protected conduct. But that\u2019s okay, because the real beauty of our two-step test is its amazing flexibility at the various stages of step two in balancing the government\u2019s asserted interest versus the claimed impact on the \u201ccore\u201d of the Second Amendment.<\/p><\/blockquote>\n\n\n\n<p>And another one:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\"><p>The first prong is always met in Second Amendment cases. Guns are dangerous, after all, so the government\u2019s interest in ameliorating such danger is always important. At first we were worried this case<br>might be a problem, because the regulations here don\u2019t really have any nexus to the dangerousness of guns. But COVID-19 is dangerous too, so that substitutes in nicely.<\/p><\/blockquote>\n\n\n\n<p>And his concluding footnote:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\"><p>Again, it doesn\u2019t matter much what we say here. Once we\u2019re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it\u2019s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.<\/p><\/blockquote>\n\n\n\n<p>VanDyke ends his concurrence by saying&#8221; You&#8217;re welcome.&#8221; I&#8217;m sure this won&#8217;t endear him to some of his fellow judges on the 9th Circuit but I don&#8217;t think he gives a damn. From what I can tell, VanDyke&#8217;s dissents  have really <strong><a href=\"https:\/\/abovethelaw.com\/2021\/12\/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents\/\" target=\"_blank\" rel=\"noreferrer noopener\">irritated <\/a><\/strong>the liberals on the court for which I say, &#8220;Good!&#8221;.<\/p>\n<div style=\"margin-top: 0px; margin-bottom: 0px;\" class=\"sharethis-inline-share-buttons\" ><\/div>","protected":false},"excerpt":{"rendered":"<p>Judge Lawrence VanDyke wrote the court&#8217;s opinion in McDougall v. Ventura County (California). It was a recent 9th Circuit&hellip;<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":2,"footnotes":""},"categories":[1],"tags":[484,5144,5933,19],"class_list":["post-31868","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-9th-circuit","tag-covid-19","tag-mcdougall-v-ventura-county","tag-second-amendment"],"_links":{"self":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/31868","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=31868"}],"version-history":[{"count":5,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/31868\/revisions"}],"predecessor-version":[{"id":31875,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/31868\/revisions\/31875"}],"wp:attachment":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=31868"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=31868"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=31868"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}