McKay v. Hutchens is essentially a clone of the NRA/CRPA Federal lawsuit brought against the San Diego Sheriff (Peruta v. San Diego) only this time against the Orange County Sheriff.

The motion for a preliminary injunction against the Orange County Sheriff's policy of not accepting "self-defense" was denied. The district court case was stayed pending an appeal. The appeal was fully briefed, argued and taken under submission for a decision on 10/7/2013.

Less than a month after improperly attempting to enter my Open Carry appeal (Nichols v. Brown) as an Amicus and successfully persuading an assistant clerk to stay my appeal, the three judge panel of Pregerson, McLane and Tallman stayed the McKay appeal pending a decision in US v. Chovan, Peruta v. San Diego, Richards v. Prieto and Baker v. Kealoha. This was on 11/12/2013. Karma.

The en banc petition for Chovan was denied, which means that McKay now awaits the outcome of Peruta/Richards/Baker. More likely just Peruta and Richards because Hawaii provides for the issuance of licenses to carry a handgun openly or concealed and so the manner of carry in Baker is not at issue.

Those four cases having been decided, the NRA/CRPA filed a motion to lift the stay and to issue a memorandum opinion in McKay on 4/7/2014.

On 4/23/2014, the court denied the motion. Judges Pregerson and McLane voted against the motion, Judge Tallman for the motion.

The threshold for obtaining a preliminary injunction is "likelihood of success" which is less than that required to grant a motion for judgment on the pleadings or a motion for summary judgment.

The implication is that Judges Pregerson, McLane and the dissenting judge in Peruta (Thomas) are likely to vote to reverse the Peruta decision. One cannot say for sure how Tallman would vote from the en banc panel because Peruta was the appeal of a motion for summary judgment which presumes that one side has proven his case.

Technically, an en banc panel consists of at least four judges. A "full court" panel consists of all actives judges. A 9th Circuit en banc panel consists of the Chief Judge for the 9th Circuit (Currently Alex Kozinski) and ten active judges randomly selected. There are currently 43 Circuit Judges in the 9th CCA in addition to the Chief Judge. Sixteen are senior judges who are not eligible to vote for an en banc rehearing of Peruta/Richards/Baker nor would they serve on an en banc panel. This leaves 27 active judges to form the pool from which the ten judges for the en banc panel will be randomly chosen.

It is possible that none, one, two or all three of the judges from Peruta/Richards/Baker will be selected to be on the en banc panel.

US v. Chovan was an important decision. It established the framework for evaluating Second Amendment cases in the 9th Circuit which makes it the "prior precedent" all subsequent three judge panels must follow unless overturned by an en banc hearing or by the US Supreme Court. The only option left for Chovan is the granting of a cert petition by SCOTUS which is highly unlikely. The framework established by Chovan is the "two step" historical analysis framework used in the 7th Circuit to strike down the Illinois ban on carrying loaded firearms in public. Fortunately, the court did not adopt the "substantial burden" framework from the 2nd Circuit which was, for a time, the framework in the 9th Circuit as a result of a 3 judge panel decision in Nordyke v. King. Under the "substantial burden" framework, only those laws which present a substantial burden on the Second Amendment right are evaluated using heightened scrutiny. The three judges who endorsed the substantial burden framework were O’Scannlain, Alarcón and Gould. Telling from the decision was Judge Gould's concurrence to which O'Scannlain said "Judge Gould’s framework could also be read as applying mere rational basis scrutiny to every gun-control regulation." By contrast, Judge Gould wrote a sterling concurrence in the 4/20/2009 Nordyke decision which incorporated the Second Amendment before SCOTUS did in Heller. Judge Alarcón joined with Judge O’Scannlain in his opinion.

A case of the pot calling the kettle black if you ask me.

O’Scannlain was one of the three judges on the Peruta panel. If you read his decision in Peruta carefully you will notice that he is applying his own, vacated, substantial burden test instead of applying the two-step inquiry framework from Chovan.

Because Peruta/Richards/Baker did not follow the Chovan decision, it created an in-circuit split and increases the likelihood that one of Peruta/Richards/Baker cases will be heard before an en banc court. It only takes an en banc hearing of one of them to affirm or reverse all three decisions. Technically, it could also reverse the framework adopted in Chovan. I think that is highly unlikely given that the Chovan framework is the one used in most of the Federal Circuits as well as the D.C. Circuit.

Of course if the Drake v. Jerejian case is granted cert. I can pretty much guarantee that the 9th CCA will stay every Second Amendment case before it pending a decision.

Drake's fate is in the hands of SCOTUS this afternoon when it comes up for a second time on a vote as to whether or not to grant cert.

Charles Nichols – President of California Right To Carry

"[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.