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“Prophet Without Honor”: Sean Brady on Judge VanDyke’s Controversial 2nd Amendment Prediction
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“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining appellate attorneys Tim Kowal and Jeff Lewis, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.
(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)
McDougall involved Covid-19 orders shutting down gun ranges. The McDougall decision found Governor Newsom’s executive orders violated the Second Amendment.
Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.
But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But the three attorneys agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.
Sean Brady’s biography and LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Other items discussed in the episode:
- McDougall v. Cnty. of Ventura, 23 F.4th 1095 (9th Cir. Jan. 20, 2022).
- Louis Menand, American Studies.
- DC v. Heller, 552 US 1035 (2007).
- McDonald v. City of Chicago, 561 U.S. 742 (2010).
- Duncan v. Becerra, 742 F. App’x 218 (9th Cir. 2018).
- Peruta v. California, 137 S. Ct. 1995, 1997 (2017).
- Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021).
- Tim Kowal, “The Doomsday Provision,” the term coined by Judge Kozinski.
- NPR, “
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