Explore The NRA Universe Of Websites

Court Upholds California’s “Wait for Waiting’s Sake” Gun Sales Law

Friday, December 16, 2016

Court Upholds California’s “Wait for Waiting’s Sake” Gun Sales Law

Earlier this week, a federal appellate court provided yet another reminder of the importance of the courts in defining the contours of Second Amendment rights following District of Columbia v. Heller (2008).   

In the first case to assess the validity of firearm purchase waiting periods, the United States Court of Appeals for the Ninth Circuit approved California’s mandatory ten-day waiting period as applied to gun buyers who are already documented as having a valid Carry Concealed Weapon (CCW) license or a state-issued Certificate of Eligibility, or who are lawfully in possession of at least one firearm. 

California law requires any person who purchases a gun to wait a minimum of ten 24-hour days between the time of purchase and delivery, unless one of the statutory exceptions applies (for instance, dealer-to-dealer transfers, law enforcement transactions, or dealer sales to out-of-state residents). The “common sense” rationale advanced by the government is public safety – the wait time purportedly gives the State the necessary time to perform additional checks that prevent guns from getting into the hands of criminals, and imposes a “cooling off” period for persons who would otherwise commit impulsive acts of violence or self-harm. 

Gun owners and gun-rights groups argued that in this case, the law was nothing more than a “wait for waiting’s sake.” The “cooling off” justification was irrelevant with respect to already-existing gun owners and holders of a valid COE (a certificate attesting that the person is eligible to possess or purchase a gun), and those with a CCW (a group statistically very unlikely to engage in acts of gun violence). As noted in a “friend of the court” brief filed by the Crime Prevention Research Center, there were no studies or evidence before the court that showed “waiting periods … reduce violent crime or suicides” or, more to the point, showed that a ten-day waiting period, when applied to the three categories of gun buyers, had any of the claimed public safety benefits.   

The government’s other concern underlying the waiting period – to prevent acquisition of guns by recently ineligible persons – was misplaced because the California Attorney General maintains an online database, the Armed and Prohibited Persons System (APPS), compiled for the purpose of identifying persons who own or possess guns and who subsequently become prohibited from such ownership or possession. APPS information is continually updated and immediately available to determine a person’s status as armed and prohibited.

For the classes of buyers represented in this lawsuit, the impact of the law was to interfere with property rights, increase the expense and inconvenience of acquiring a firearm, and impede the exercise of fundamental Second Amendment rights.  

Following a bench trial, Judge Anthony Ishii of the United States District Court for the Eastern District of California agreed, concluding that the waiting period unconstitutionally violated the Second Amendment rights of the specified kinds of buyers. The State failed to show that the law either fell outside the scope of Second Amendment protections as historically understood, or that it fit within one of several categories of longstanding regulations that were “presumptively lawful” based on Heller. There were “no laws in existence at or near 1791 or 1868 that imposed a waiting period of any duration between the time of purchase and the time of possession” so as to show such restrictions were historically understood as not impinging on the Second Amendment. The court held, also, that the wait period did not qualify as either longstanding or as an accepted commercial regulation of sale. Simply pointing to the fact that California has had a form of waiting period since 1923 was “not enough.”

Next, using intermediate scrutiny analysis (whether there was a “reasonable fit” between the means chosen by the government and its stated public safety objectives), the court determined the law was excessive or overbroad. Delaying a sale for the full ten days despite the earlier completion of the background check “in case” some additional information on the purchaser came in was “unduly speculative and anecdotal,” particularly in light of the “safety net,” the APPS system. There was no evidence that a “cooling off” period prevented impulsive acts of violence by individuals who already possessed a firearm. Likewise, applying the waiting period to every gun sale for purposes of investigating possible “straw” purchases, “in the absence of any reason to suspect that a straw purchase is in fact occurring, is too overbroad.” 

The State of California appealed. 

This week, in Silvester v. Harris, a unanimous Ninth Circuit reversed and upheld the waiting period as a “reasonable precaution” applicable to all purchasers. The court assumed that the law was not a “presumptively lawful” regulation or one historically outside the Second Amendment and proceeded to evaluate (and uphold) the law using intermediate scrutiny. There was no substantial burden on gun rights because the wait period didn’t prevent anyone from owning a gun, and the “actual effect” of the law on buyers was “very small” (a “brief delay”). The same broad and lenient brush was used to paint the “reasonable fit” between the government objectives and the means. The law furthered the “common sense understanding” that a person’s violent or suicidal urges might dissipate in time; a waiting period’s deterrent effect would apply even to existing gun owners, who might be buying an upgraded weapon with which to achieve their criminal purposes. According to the court, the law’s overall effect was “to require individuals to stop and think before being able to use a firearm,” which might be logical if the law somehow regulated use instead of purchase.

This case provides a useful illustration of the incremental “creep” that occurs once a gun-control law gets passed. California’s first waiting period was a law that imposed an overnight wait period for handgun purchases only, and codified in 1953 as part of the California Penal Code. Two years later, the handgun waiting period was expanded from one day to three days. In 1965, the wait period was again extended, from three days to five, and was extended yet again, ten years later, to 15 days (but reduced to ten days in 1996 because faster processing of background checks was available). In 1991, the wait period was expanded to apply to all gun sales, not just handgun purchases. 

This year, Californians voted to extend the background check requirement to the acquisition of ammunition, along with new restrictions on ammunition sales. While this measure lacks a waiting period element, it’s likely only a matter of time before California proposes a waiting period for ammunition sales, based on the same kind of speculative reasoning and weak “public safety” justifications found to be sufficient in the Silvester appeal.

BY NRA-ILA Staff

TRENDING NOW
The Danger Of A “Not In My Backyard” Mentality On Shooting Ranges

News  

Wednesday, July 19, 2017

The Danger Of A “Not In My Backyard” Mentality On Shooting Ranges

Muscatine County, Iowa, is home to about 40,000 people, and like too many places around the country, gun owners there have no public range where they can practice or compete safely. That may be changing, ...

Court to Texas College Professors: Your Irrational Fear of Gun Owners Is Not Legally Addressable

News  

Wednesday, July 12, 2017

Court to Texas College Professors: Your Irrational Fear of Gun Owners Is Not Legally Addressable

Last Thursday, a federal judge in Austin, Texas, dismissed a lawsuit by several professors who sought to block the University of Texas from implementing a state law that provides for the lawful carrying of concealed ...

California: Anti-Gun Bills to be Heard in Assembly Appropriations Committee on Wednesday, July 19

Monday, July 17, 2017

California: Anti-Gun Bills to be Heard in Assembly Appropriations Committee on Wednesday, July 19

On Wednesday, July 19, anti-gun bills SB 464 and SB 497 are scheduled to be heard in the Assembly Appropriations Committee at 9AM in State Capitol room 4202.  Assembly Bill 424 remains eligible for third ...

CMP Sales of 1911s One Step Closer With House Passage of 2018 NDAA

Friday, July 14, 2017

CMP Sales of 1911s One Step Closer With House Passage of 2018 NDAA

On Friday, the U.S. House of Representatives passed H.R. 2810, the National Defense Authorization Act (NDAA) for Fiscal Year 2018. Included in the bill is a provision that would make U.S. Army surplus 1911 .45 ACP ...

Gun Control Groups: Good at Gloating, Bad at Counting on Advancing National Reciprocity Effort

Friday, July 14, 2017

Gun Control Groups: Good at Gloating, Bad at Counting on Advancing National Reciprocity Effort

Apparently, Michael Bloomberg is good at counting money but not so good at counting votes. This week, Breitbart reported that Everytown for Gun Safety, Michael Bloomberg’s gun ban conglomerate, was claiming a “win” for congressional ...

Run, Hide, Perish – Survival Do’s and Don’ts from Across the Pond

News  

Friday, July 14, 2017

Run, Hide, Perish – Survival Do’s and Don’ts from Across the Pond

The United States Department of Homeland Security (DHS) advises persons at risk of harm from an active shooter to “Run, Hide, Fight” (in that order), recommending “fight” – incapacitating or “attempt[ing] to take the active ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

One More Reason Gun Owners Should Be Celebrated

News  

Second Amendment  

Thursday, July 20, 2017

One More Reason Gun Owners Should Be Celebrated

The safety record of America’s gun owners is nothing short of stunning. 

California: DOJ Releases Proposed Regulations Regarding Ammunition Vendor Licensing

Tuesday, July 18, 2017

California: DOJ Releases Proposed Regulations Regarding Ammunition Vendor Licensing

On Friday, July 14th, the California Department of Justice, Bureau of Firearms (“DOJ”) claims to have released its anticipated proposed regulations for the issuance of ammunition vendor licenses.  Under the Administrative Procedure Act, a government ...

Commerce Subcommittee Chairman John Culberson Steers Pro-Gun Spending Bill to House Floor

Friday, July 14, 2017

Commerce Subcommittee Chairman John Culberson Steers Pro-Gun Spending Bill to House Floor

On Thursday, the House Committee on Appropriations approved the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill, which funds various federal agencies, including the U.S. Department of Justice, for the next year. The bill ...

MORE TRENDING +
LESS TRENDING -
NRA ILA

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.