9th Circuit Issues Important Gun-Rights Decision

By Charles Nichols

Gun and Gavel
9th Circuit Issues Important Gun-Rights Decision
AmmoLand Gun News
AmmoLand Gun News

California –-(Ammoland.com)- It took nearly two years but this morning the 9th Circuit Court of Appeals issued a decision written by ninety year old judge Harry Pregerson which created a framework in the 9th Circuit for deciding Second Amendment cases.

The court of appeals adopted a “Two Step Inquiry” (1) If the challenged law burdens conduct protected by the Second Amendment then (2) courts are directed to apply an appropriate level of scrutiny.

This is an important decision because when the US Supreme Court decided District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) the cases involved bans. The High Court did not describe a framework for the courts to use to evaluate laws that fell short of outright bans as was the case in Heller and McDonald.

Until today, the cases decided in the 9th Circuit did not articulate a framework because they either involved persons the court said fall outside the scope of the Second Amendment (e.g., convicted felons) or “arms” which the court likewise said fall outside the scope of the Second Amendment (e.g., bombs) or persons using firearms to further their criminal enterprise (e.g, drug dealers), etc. In cases such as this, the court decided that it was not necessary to articulate a framework to use in deciding the cases. In other words, these were “Open and Shut” cases.

What This Portends for the Concealed Carry and Open Carry cases?

There are close to a dozen concealed carry cases either pending in the 9th Circuit Court of Appeals or are currently being decided in the lower 9th Circuit District Courts. Unfortunately, the concealed carry cases have several insurmountable mountains to climb. First, the US Supreme Court said that its decision in Heller did not invalidate prohibitions on concealed carry and when the Supreme Court applied the Second Amendment to the states via the 14th Amendment in McDonald it also applied the Heller decision to the states. The US Supreme Court in Heller said that Open Carry is the right guaranteed by the Constitution.

So the concealed carry cases are unlikely to even reach, let alone pass, the first step of the “Two Step Inquiry.” For nearly two hundred years state courts have said that concealed carry is not a right. Two recent Supreme Court decisions say concealed carry is not a right as have every Federal Court of Appeals to decide the question. Since there are only two ways to carry a firearm, openly or concealed, that leaves the two Open Carry cases, Nichols V. Brown and Young v. Hawaii to be decided under the “Two Step Inquiry” framework.

“Step 1” – Does the challenged law burden conduct protected by the Second Amendment?

The US Supreme Court said that Open Carry perfectly captures the meaning of the Second Amendment right to Keep and Bear Arms and both California and Hawaii ban Open Carry. So both Open Carry cases pass “Step 1.”

“Step 2” – Having passed “Step 1,” courts are directed to apply an appropriate level of scrutiny.

There are three levels of scrutiny; rational basis, intermediate scrutiny and strict scrutiny. “Rational Basis” basically means the government wins except in rare circumstances such as the law being “irrational” or “arbitrary.” The Supreme Court in Heller took rational basis off the table so that leaves intermediate and strict scrutiny.

Intermediate Scrutiny – Sliding Scale

Intermediate Scrutiny is a sliding scale that courts apply to “regulations” of fundamental rights that fall short of a ban. For example, if you as an individual want to walk up and down the sidewalk wearing a t-shirt with some political or religious message then you are free to do so. If there were a local law requiring a permit for you to do so then it would likely be overturned even under the low end of “intermediate scrutiny.” However, If you and a hundred friends want to walk up and down the same sidewalk then you might have to comply with a law requiring you to get a permit and that law would normally be subject to the sliding scale of “intermediate scrutiny.” The greater the restrictions placed on getting a permit, the greater the burden on the government in justifying the law.

However, once a law passes a certain threshold then “strict scrutiny” applies and the restrictions on your fundamental rights have to be narrowly tailored and the government needs a very good reason to justify that restriction.

Under both intermediate and strict scrutiny the burden of proof is on the government to justify those restrictions.

There is an exception however, when the government bans a protected right, as does California and Hawaii which both ban the bearing arms for the purpose of self-defense, then it is unnecessary for the court to decide what level of scrutiny to apply. Bans on fundamental rights are always unconstitutional regardless of the level of scrutiny.

The case decided today was US v. Chovan (11-50107). Mr. Chovan had been convicted of misdemeanor domestic violence which results in a lifetime ban on the possession of firearms under Federal law unless the conviction is expunged, pardoned or otherwise set-aside. In California, once the period of probation has expired, a person has the right to have his misdemeanor conviction expunged. Mr. Chovan did not have his conviction expunged and was therefore charged with possession of a firearm in violation of Federal law.


Charles Nichols is the President of California Right To Carry, a non-profit California association of Second Amendment advocates. Mr. Nichols filed a Federal Civil Rights Lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public.

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In states such as California, and others which are rapidly closing on California, the state does not care what decisions are made by SCOTUS, the 9th, or any other court which does not rule in favor of the state. The commie progressives of the state have an agenda and will impose it regardless. And they will use the tax dollars of those opposed to pay for any litigations. Fortunately for the state, the courts of California lean so far to the left that they have infected the entire legal system.


Franklin Benjamin

SCOTUS, in USA v. Chovan, has now (Oct. 6, 2014) DENIED certiorari (Court refuses to hear the case), letting stand the 9th Circuit’s decision upholding the validity of the “Lautenberg Amendment” to the “Omnibus Consolidated Appropriations Act of 1997” 18 U.S.C. § 922(g)(9) which bans for life firearms possession to anyone convicted of the MISDEMEANOR of “domestic violence.” That’s right folks the U.S. Supreme Court by refusing to hear Chovan’s case, has now, let Lautenberg stand, in effect saying that the Lautenberg Amendment is law of the land; and that in cases of a conviction for MISDEMEANOR (not FELONY) domestic… Read more »


So the relation between the earlier case where the court required the domestic violence to be an actual act of violence rather than mere touching of a battery, is in what status?
It would be helpful to have the cases compared to establish trends


The message is very clear: If you want to legally possess a firearm, don’t commit the crime of domestic violence. It’s really not that hard.


I don’t know if this will be posted near the comment I wanted to address, so I’ll summarize that comment here. The person basically said “if you want to own a gun, don’t commit domestic violence.” The problem is that a lot of people get charged and convicted of domestic violence without ever having committed a crime. Frequently the charges will start off as a list of 5 or more insanely serious charges, and then the prosecutor will offer a reduced charge to induce defendants to accept a plea agreement. I personally was charged with kidnapping, battery by strangulation, battery:… Read more »


Standard Operating Procedure.

This follows the path of the state (CA) wherein the state passes gun controls and bans weapons, and imposes other regulations so that people will find themselves in violation. Thus the state can take away the 2A rights of the individual or plea bargain and get the defendant to surrender their firearms rather than face prison. They seek to turn the law abiding into criminals to justify denying their rights.

James Guill

This is small comfort coming from the most liberal and loony circuit! At the least, there will be great differences in the circuits from the discretion implied under step two. Any law regarding firearms should trigger step one.

US Army (retired)

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.” — Thomas Jefferson “No free man shall ever be debarred the use of arms. When governments fear the people, there is liberty. When the people fear the government, there is tyranny. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort,… Read more »

Mark Are

When are WE the people going to take the reigns of government back from those who “think” they have power over us? We can refuse to convict ANYONE including so called felons ( a felon is someone in a cage) for having a firearm. I for one would look at the circumstances if I was on a jury. Was the “felon” using the firearm to commit a crime? Or was he someone who had run afoul of some paper requirement or maybe smoked a bit of an herb that had been convicted of a “felony” and was using the gun… Read more »


And the hands of legitimate gun owners are tied even tighter as the courts and judges continue debate on the 2nd Amendment.


“The people’s right to keep and bear arms SHALL NOT BE INFRINGED.”
So what the heck do our elected representatives not understand?


I will never get where these nincompoop judges envision the Constitution authorizing government to deny any right to any person for any reason except the right to vote, as it alone is specifically authorized. Is there a section of the Bill of Rights written in invisible ink that I have to hold over a candle flame to see where such authority has been granted?