Chovan Flashcards
Did Bruen overrule Chovan?
• (1) At a minimum, Chovan establishes that the government can’t remove DVMs from the Second Amendment’s protection by analogizing to Heller’s list of presumptively lawful regulatory measures. Bruen couldn’t have changed that, as the majority opinion said nothing about that list and, in fact, said that text and history are the “only” ways to validate a gun restriction.
• (2) The Chovan analysis was carried out at step 1, and Bruen says that the circuits’ first steps are “broadly consistent” with the correct interpretation of the Second Amendment. It heard virtually the same argument that the government makes today: that restrictions on DVMs are part of a “long line of prohibitions and restrictions on the right to possess firearms by people perceived as dangerous or violent.” It reviewed Heller’s “law-abiding” language. And it concluded that DVMs do have at least some Second Amendment rights. At least as to the question whether Mr. Yates falls within the Second Amendment’s scope, Chovan should control.
But Chovan doesn’t review the amendment’s plain text does it?
That’s correct, your honor. But the government arguments for excluding Mr. Yates from the Second Amendment’s scope aren’t rooted in text either. They’re rooted in Bruen’s “law-abiding” language and Heller’s “presumptively lawful” list. But both “law-abiding” language and the “presumptively lawful” list were before this Court in Chovan, and this Court still concluded that DVMs fell within the Second Amendment’s scope.
Didn’t Bruen clarify that only the “law-abiding” have Second Amendment rights?
• No, your honor. And more to the point for the Miller v. Gammie question, there’s at least a reasonable (I think a powerful) argument that Bruen did not adopt that limitation, so the notion that DVMs have Second Amendment rights isn’t clearly irreconcilable with Chovan. Furthermore, “law-abiding” language and argument have been around long before Bruen, since Heller. And the government has repeatedly tried to use that language to limit the Second Amendment. A notable example is this Court’s opinion in United States v. Torres. In that case, this Court concluded that Heller did not address the question whether the Second Amendment is limited to “law-abiding responsible citizens,” so that language cannot be interpreted to give a conclusive answer to how the government may regulate that group
Is it your position that, under Bruen, the government must prove that “domestic violence misdemeanants in particular were historically restricted from bearing arms”?
• No, your honor, not at the “history and tradition” stage.
So, it must be the case then that Chovan is clearly irreconcilable with Bruen.
So, I think it’s important to think about context. Chovan made that statement in rejecting the argument that DVMs are outside the scope of the Second Amendment altogether. So, Chovan rejected an argument similar to the one that the government is making here—that dangerous, non-law-abiding people don’t have any Second Amendment rights, and (g)(9) should be counted among the “longstanding” and “presumptively lawful” prohibitions from Heller. Chovan rejected that argument, and that conclusion is binding. But even if Mr. Yates falls within the scope of the Second Amendment, the government can still defend the law by locating (g)(9) in a deeply rooted historical tradition of regulation. And we agree that Chovan does not govern on that point.
• Notably, this was not an idiosyncratic conclusion by any means. The Fourth and Tenth Circuit agreed with Chovan’s conclusion.
• [Alt: Not in context. Chovan also talks about lack of historical support for disarming people with felony convictions and cites to Chester. Much more fulsome analysis than the government is suggesting.]
• [Alt.: The Ninth Circuit “step 1” test required litigants to come forward either with evidence about text and history. The government failed to produce that evidence. ]
Didn’t Rahimi conclude that the prior Fifth Circuit precedent was overruled?
• Yes, but there, the prior precedent was based on the now-overruled second step.
