CERT DENIED ON OCTOBER 6, 2014
US v. Chovan was a domestic violence appeal in which the 9th Circuit Court of Appeals adopted a framework for evaluating Second Amendment cases in this circuit. The Chovan Court adopted the “two-step” historical analysis framework which has been adopted in most of the Federal circuits including the 7th Circuit Court of Appeals which overturned Illinois’ ban on carrying loaded firearms in public. A ban identical to one I am challenging here in California.
Chovan’s request for an en banc rehearing was denied and so he filed a cert petition with the US Supreme Court which has been distributed for the September 29th, 2014 SCOTUS conference. The government declined to file a brief in opposition and SCOTUS did not request one. This means that for all intents and purposes the September conference is just a formality. Cert will undoubtedly be denied.
The Peruta v. San Diego concealed carry case created an intra-circuit split as well as a split with every other Federal and State court. As the prior precedent, Chovan was binding on the Peruta Court but two of the three judges in the majority decided to disregard the Chovan precedent. Unless SCOTUS grants Chovan’s cert petition the 9th Circuit must grant the en banc petition in Peruta in order to resolve the intra-circuit split.
Given that the district court held in my Open Carry case that Peruta is binding in my case unlike every other district court judge to date (July 25, 2014) in this circuit, mine will be the first case in which the Court of Appeals will have to resolve the intra-circuit split between Peruta and Chovan if the en banc petition in Peruta is not granted.
Long story short, we likely have many months (if not a couple of years) before we learn whether or not the Second Amendment guarantees our right to step even one foot outside the door of our homes with a firearm. As California law currently stands, it is illegal for most of us to do just that.
Update October 6, 2014 – Chovan’s cert petition was DENIED which means this district can’t dodge #2A questions like the 2nd, 3rd and 4th Circuits have done.
Update October 3, 2014 – Chovan’s cert petition was considered in the September 29, 2014 “Big Conference.” We will not know what was decided until next Monday. It is highly likely that cert was denied because a Brief in Opposition/Response was never requested by SCOTUS nor filed.
Update July 25, 2014 – Chovan’s cert petition was scheduled for the SCOTUS conference of September 29, 2014.
Update July 18, 2014 – Chovan is a very important case. I check the SCOTUS docket every weekday. Unfortunately, it can take several days for a filing to show up on the docket. On July 15th the Federal government filed a “waiver of right of respondent United States to respond.” If SCOTUS does not request a response then Chovan’s cert petition will most certainly be denied.
Update July 2, 2014 – Chovan filed a cert petition with the US Supreme Court on June 26, 2014. Response is due August 1, 2014.
|07/03/2014||62||Received notice from the Supreme Court: petition for certiorari filed on 06/26/2014. Supreme Court Number 14-5032.  (RR)|
Update April 22, 2014 – Great News Again!!! The mandate in US v. Chovan has now been issued. The appellate decision is now final. US v. Chovan is the binding prior precedent in the 9th Circuit Court of Appeals barring an unlikely reversal by the US Supreme Court.
|05/01/2014||61||MANDATE ISSUED.(HP, MDH and CTB)  (EL)|
Update April 22, 2014 – Great News!!! The en banc petition in US v. Chovan was denied today. The Chovan decision adopted the “Two-Step Historical Inquiry” framework from the 7th Circuit Court of Appeals which I have advocated in my Open Carry lawsuit and which the 7th Circuit used to overturn an identically worded Loaded Open Carry ban in Illinois. Attorney General Harris advocated the Second Circuit “No Set of Circumstances”/Rational Review framework, which the district court applied in the denial of my preliminary injunction last year and which the magistrate judge once again recommended in her report and recommendation to the district court judge.
Legally, the district court judge is required to follow Chovan in deciding my case as it was the prior precedent to the Peruta decision. Given that the Peruta decision did not follow the Framework adopted in Chovan, the chances of an en banc rehearing of Peruta is all but guaranteed at this point.
Barring an intervention by the US Supreme Court (i.e., granting of a cert petition). The Chovan decision remains binding in the 9th Circuit Court of Appeals and all subsequent Second Amendment cases must defer to the Chovan decision (including the Peruta/Richards/Baker decisions).
For me to lose on appeal, the 9th CCA would have to find that, as the Framers of the Second Amendment understood the right, there is no right to openly carry a loaded firearm on one’s own property or in those “public places” where hunters are exempt from the three Open Carry bans my lawsuit challenges.
Chovan has 90 days from today to file a cert petition with the US Supreme Court.
|04/22/2014||60||Filed order (HARRY PREGERSON, MICHAEL DALY HAWKINS and CARLOS T. BEA): The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED. No further petitions will be entertained.  (AF)|
This case is more important than Peruta, Richards and all of the concealed carry cases combined. Chovan was the first 9th Circuit Court of Appeals decision which articulated a framework for evaluating Second Amendment challenges. Chovan adopted the “Two-Step Historical Inquiry” framework from the 7th Circuit Court of Appeals, a framework used by most of the Federal Circuits including the D.C. Circuit.
The Chovan decision requires that the lower district courts in the 9th Circuit evaluate a gun control law based on whether or not it burdens the Second Amendment right as it was understood by the Framers of the Second Amendment in 1791. As importantly, that burden does not have to be a “substantial burden.” The decision also requires that the government prove its case beyond the legislature (or Congress) simply enacting a law. Even if the law affects persons who fall outside of the scope of the Second Amendment.
Here is a link to the decision.
|03/18/2014||59||Filed order (HARRY PREGERSON, MICHAEL DALY HAWKINS and CARLOS T. BEA): Appellant’s motion to exceed the type-volume limitation for a petition for rehearing en banc is GRANTED.  (AF)|
The links below require a Federal PACER account.
United States Court of Appeals for the Ninth Circuit
|UNITED STATES OF AMERICA,Plaintiff – Appellee,v.DANIEL EDWARD CHOVAN,Defendant – Appellant.|