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California: Information on the Ten-Day Waiting Period Court Decision

Friday, September 5, 2014

A federal district court judge recently ruled that California’s mandatory 10-day waiting period for firearm purchases violates the Second Amendment as applied to individuals who already lawfully possess at least one firearm that is registered to them in the California Department of Justice (DOJ) Automated Firearms System (AFS), or who possess a valid Carry Concealed Weapon (CCW) license.  The ruling also mentions those who possess a valid Certificate of Eligibility (COE), but they would still need a firearm registered in the AFS to be entitled to the exception from the 10-day waiting period.

 

The court allowed the California legislature 180 days to adopt a new law addressing the constitutional concerns it articulated, should the legislature choose to do so. That’s not going to happen that fast, so watch for motions to adjust that timeline. The state can still appeal the ruling where it could be tied up for over a year.

 

If the ruling becomes final, it would mean that people with firearms already in the AFS or who have a CCW are not subject to the mandatory 10-day waiting period when purchasing new firearms. The ruling does not affect first time California firearm purchasers or those who already lawfully own firearms that are not in the AFS, unless they have a CCW.

 

To be clear, as the ruling repeatedly emphasizes, under this decision firearm purchasers must still pass a DOJ background check for each new firearm they seek to acquire. DOJ’s background check process may still legally delay, in some cases more than 10 days, the purchaser’s taking possession of a firearm. But if the background check is completed and approved prior to the expiration of 10 days, the firearm vendor cannot be required to wait the full 10 days before giving possession of the firearm to the purchaser, as the law previously required before the court’s intervention.

 

Despite the positive ruling, you should not expect to walk in and out of a store with a new firearm the same day. According to the DOJ, only about 20% of background checks are automatically approved. These “auto-approvals” can take anywhere from 1 minute to 2 hours, but usually occur within 1 hour. The other approximately 80% of background checks, however, are not auto-approved. They require further investigation, review, and analysis. In these cases, a delay of at least 1 day is generally inevitable according to the DOJ, because some further review of the purported purchaser is deemed necessary. If review by an analyst is required, and there is a backlog of applications, it may still take up to 10 days to complete and approve the background check. 

 

Under California law, there are specific circumstances that allow the DOJ to take up to 30 days to conduct a background check to further investigate whether the applicant is prohibited from possessing a firearm. How that will come into play is not entirely clear, but people should be aware that the DOJ may still be able to delay a firearm purchase 10 days, and potentially more, despite this ruling.

 

In sum, those who already lawfully own firearms that are registered in the AFS or who have a CCW cannot be subjected to California’s mandatory 10-day waiting period, as long as their background check is completed and approved prior to the expiration of 10 days. However, the law still allows for extended delays in giving possession of a firearm to a purchaser pending a background check.

 

While this ruling is somewhat limited in its practical effect for the time being, it is welcome news coming in a year that has already seen its fair share of good news for Second Amendment rights coming from courts. Earlier this year, a monumental ruling from the Ninth Circuit Court of Appeals in the NRA sponsored case of Peruta v. San Diego County found that the San Diego County Sheriff’s policy of refusing to issue licenses to carry firearms in public unless an applicant could demonstrate special need was an unconstitutional violation of the Second Amendment. NRA News has produced a wonderful video and America’s First Freedom magazine also published an enlightening article about the case. We are waiting to hear from the court on whether it will allow the California Attorney General Kamala Harris and some gun ban advocacy groups to intervene in the Peruta case as “parties” so they can further appeal the decision. 

 

While these cases show that the courts are willing to defend Second Amendment rights, they also show the lengths the anti-gun-rights crowd within and outside the government will go to in their quest to curtail those rights. We will keep you updated on developments in both these cases as they occur. But, in the meantime, NRA needs your continued support and vigilance. 

 

 

Help NRA to Help You

 

You can assist in the fight to defend gun owners’ rights in California courts by donating to the NRA Legal Action Project today. For a summary of some of the many actions the NRA has taken on behalf of California gun owners, including the tremendous recent victory in the Peruta case click here. Second Amendment supporters should be careful about supporting litigation efforts promised by other individuals and groups without access to the necessary funding, relationships, firearm experts and experienced lawyers on the NRA’s national legal team. The NRA’s team of highly regarded civil rights attorneys and scholars has the resources, skill and expertise to maximize the potential for victory.

 

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.