California Right To Carry
Regular Member
If you haven't heard by now, my lawsuit (Nichols v. Brown) is the only lawsuit seeking to overturn California's 1967 Loaded Open Carry ban as well as seeking to overturn the two recently enacted bans on unloaded Open Carry. The NRA and SAF on the other hand are busily trying to preserve both that ban and California's Gun Free School Zone Act of 1995.
Today, SCOTUS denied the cert petition in US v. Chovan. The Chovan case, for the first time in this circuit, established a Framework for evaluating Second Amendment cases using the two-step historical inquiry adopted by most of the circuits including the 7th which struck down the Illinois ban on carrying loaded and unloaded firearms regardless of whether they were carried openly or concealed. The two-step framework is also used in the D.C., Circuit where Palmer v. D.C., is slowly crawling up the ladder.
The "two-step" Framework under Chovan should be called a three-step test or a two point five test because the first step was actually in two parts.
The two parts of step one were: 1) Does the law implicate what the Chovan court calls the "core right" - "the right of law-abiding, responsible citizens to use arms in defense of hearth and home?" If the law does not implicate the core Second Amendment right, but it does place a substantial burden on the Second Amendment then we move on to step two.
In step two, courts are directed to apply an appropriate level of scrutiny. Chovan precludes rational basis review even for those persons who do not fall within the "core right" (e.g., persons convicted of domestic violence misdemeanors). The level of scrutiny (intermediate or strict) in the Second Amendment context should depend on "the nature of the conduct being regulated and the degree to which the challenged law burdens the right." "More specifically, 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 Chovan court mistakenly believed that the ban on possession of firearms by persons convicted of domestic violence was not permanent and so applied intermediate scrutiny to the law. Fortunately, the intermediate scrutiny applied in Chovan was closer to the real thing. The 2nd and 3rd Circuits in Kachalsky and Drake applied less than rational basis review and called it intermediate scrutiny. Under intermediate (and strict) scrutiny the burden of proof is on the government. The government simply cannot say we need the law and that's that.
Unlike all of the California concealed carry cases currently before the 9th Circuit Court of Appeals or making their way up, mine is the only case which alleges that my "core right" to use firearms in my defense of hearth and home is denied. This is so because the liberal, leftist California courts have long since negated the residential property exception for those properties not fully enclosed by a tall fence or other barrier.
And so I satisfy both parts of the first step. As to step two, even California Attorney General Harris referred to the laws I am challenging as bans and so that isn't in dispute. A ban is always a "substantial burden" even for rights which are not fundamental under the law.
Under the Chovan framework, in order for me to win and have the loaded and unloaded open carry bans overturned, all that is necessary is for the 3 judge panel assigned to my case (who aren't known yet) to conclude that the Second Amendment right, as historically understood by the Framers of the Second Amendment in 1791 entailed the right to step outside the door of one's home onto his front step or porch with a loaded firearm.
Given that Chovan is now the binding prior precedent in the 9th Circuit, it shouldn't be too much longer (by court time) before a decision in Peruta's en banc petition is made. It is highly likely that the petition will be granted, the decision vacated and reheard en banc. Peruta created an in-circuit split which can only be resolved via an en banc court.
Charles Nichols – President of California Right To Carry
http://CaliforniaRightToCarry.org
Today, SCOTUS denied the cert petition in US v. Chovan. The Chovan case, for the first time in this circuit, established a Framework for evaluating Second Amendment cases using the two-step historical inquiry adopted by most of the circuits including the 7th which struck down the Illinois ban on carrying loaded and unloaded firearms regardless of whether they were carried openly or concealed. The two-step framework is also used in the D.C., Circuit where Palmer v. D.C., is slowly crawling up the ladder.
The "two-step" Framework under Chovan should be called a three-step test or a two point five test because the first step was actually in two parts.
The two parts of step one were: 1) Does the law implicate what the Chovan court calls the "core right" - "the right of law-abiding, responsible citizens to use arms in defense of hearth and home?" If the law does not implicate the core Second Amendment right, but it does place a substantial burden on the Second Amendment then we move on to step two.
In step two, courts are directed to apply an appropriate level of scrutiny. Chovan precludes rational basis review even for those persons who do not fall within the "core right" (e.g., persons convicted of domestic violence misdemeanors). The level of scrutiny (intermediate or strict) in the Second Amendment context should depend on "the nature of the conduct being regulated and the degree to which the challenged law burdens the right." "More specifically, 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 Chovan court mistakenly believed that the ban on possession of firearms by persons convicted of domestic violence was not permanent and so applied intermediate scrutiny to the law. Fortunately, the intermediate scrutiny applied in Chovan was closer to the real thing. The 2nd and 3rd Circuits in Kachalsky and Drake applied less than rational basis review and called it intermediate scrutiny. Under intermediate (and strict) scrutiny the burden of proof is on the government. The government simply cannot say we need the law and that's that.
Unlike all of the California concealed carry cases currently before the 9th Circuit Court of Appeals or making their way up, mine is the only case which alleges that my "core right" to use firearms in my defense of hearth and home is denied. This is so because the liberal, leftist California courts have long since negated the residential property exception for those properties not fully enclosed by a tall fence or other barrier.
And so I satisfy both parts of the first step. As to step two, even California Attorney General Harris referred to the laws I am challenging as bans and so that isn't in dispute. A ban is always a "substantial burden" even for rights which are not fundamental under the law.
Under the Chovan framework, in order for me to win and have the loaded and unloaded open carry bans overturned, all that is necessary is for the 3 judge panel assigned to my case (who aren't known yet) to conclude that the Second Amendment right, as historically understood by the Framers of the Second Amendment in 1791 entailed the right to step outside the door of one's home onto his front step or porch with a loaded firearm.
Given that Chovan is now the binding prior precedent in the 9th Circuit, it shouldn't be too much longer (by court time) before a decision in Peruta's en banc petition is made. It is highly likely that the petition will be granted, the decision vacated and reheard en banc. Peruta created an in-circuit split which can only be resolved via an en banc court.
Charles Nichols – President of California Right To Carry
http://CaliforniaRightToCarry.org
