9 Circuit Decision Sets the Analytical Framework for Second Amendment Challenges

Second Amendment and the 'Standard of Review'
9 Circuit Decision Sets the Analytical Framework for Second Amendment Challenges

San Diego, CA –-(Ammoland.com)- On November 18th 2013, the Ninth Circuit Court of Appeal ruled on a case that seems to finally answer the question that so many other cases have been raising: what standard of review should apply when considering Second Amendment cases?

In United States v. Chovan, the defendant sought to overturn a criminal conviction under the federal law barring those convicted of misdemeanor domestic violence from possessing firearms. The criminal defendant argued that by permanently depriving him of the right to bear arms based on a misdemeanor conviction (rather than a felony), the law unconstitutionally infringes on the Second Amendment.

The Court upheld the defendant’s conviction, finding there was no Second Amendment violation.

The decision on the specific law challenged in the Chovan case certainly affects many individuals who are in a similar situation, but the Ninth Circuit’s opinion also has broader implications for all Second Amendment challenges.

At long last, the court has articulated a framework for analyzing Second Amendment challenges in general.

When considering constitutional challenges, courts must often determine what “standard of review” to apply in evaluating whether the challenged law is constitutional. Not all laws warrant the same degree of scrutiny by courts. To put it simply, some types of constitutionally protected conduct are more protected than others. For example, in the First Amendment context a law regulating political speech commands a higher level of scrutiny than a law affecting commercial speech (“strict scrutiny” is required for the former, while only “intermediate” for the latter).

Before the Chovan case, the standard of review applicable in the Second Amendment context had not been established in the Ninth Circuit. Relying heavily on other courts that have already decided the issue, the Chovan court ruled that “the level of scrutiny should depend on (1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on the right.” The court further explained that it reads the U.S. Supreme Court’s decision in the landmark Heller case as saying “the core of the Second Amendment is ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’ “ So the closer a law comes to regulating in-home self-defense and the more severe its burden on Second Amendment protected activity, the higher the standard of review required must be.

Whether this standard will prove to be a positive for firearm rights remains to be seen, but at least it properly places the burden on the government to justify laws that impact Second Amendment rights. That is something other courts have been reluctant to do.

The Chovan decision is likely to have an impact on various NRA-supported cases currently awaiting decision in the Ninth Circuit, including Peruta v. County. of San Diego (a challenge to the San Diego Sheriff’s restrictive CCW-issuance policy) and Jackson v. San Francisco (a challenge to San Francisco’s requirement that handguns be locked away within the home and its prohibition on the sale of self-defense (hollow-point) ammunition), as well as other cases currently before the lower courts of the Ninth Circuit.

It is hard to predict exactly how Chovan will affect these cases; Mr. Chovan is likely to seek en banc review of the opinion by the entire Ninth Circuit court. If such review is granted, the en banc panel could choose to adopt the standard, alter it, or throw it out and adopt an entirely new standard or no standard at all. Even if the Chovan standard survives review, it is a new test that judges are not familiar with. There is little guidance for judges in deciding how severe a burden must be to warrant a higher standard of review, especially when the right affected is not part of the “core” described by the Chovan court.

In any event, NRA / CRPA attorneys have submitted letters to the Ninth Circuit in Peruta and Jackson with their views on why Chovan means victory for gun rights in both cases. Hopefully, there will be decisions issued in these cases in the near future that align with positions in these letters.

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The 2ndA says; “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” So it does not state “law-abiding people”. One reason it is stated as “the people” could be that a tyrannical government creates criminals out of it’s subjects to better control them. We think of law abiding as decent caring honest people. So we accept the alteration of the 2ndA to exclude those that don’t have the society or communities safety and well being at heart. Hence, our ‘reasonableness’ and the… Read more »


I know this is controversial, but last time I checked the 2nd Amendment it did say “the right of the law-abiding people.” How about the “analytical framework” being what the dang thing actually says???

Charles Nichols

It took the NRA lawyer a whole month to figure that out.