Gun Control

If You Already Own a Gun, Federal Judge Says, Making You Wait 10 Days to Get Another One Is Unconstitutional


In a decision handed down last week and published today, a federal judge rules that California's 10-day waiting period for gun purchases is unconstitutional as applied to people who already own firearms and have passed a background check. The law was challenged by Jeff Silvester and Brandon Combs, California gun owners who would like to buy new firearms without having to wait 10 days between paying for them and picking them up. U.S. District Judge Anthony Ishii agreed with them that the requirement imposes an unjustified burden on their Second Amendment rights.

Ishii rejects the state's argument that California's waiting period qualifies as a longstanding, widely accepted gun regulation of the sort that the Supreme Court has deemed "presumptively lawful." He says there is no evidence that any jurisdiction imposed such a requirement in 1791, when the Second Amendment was adopted; in 1868, when 14th Amendment made the Second Amendment binding on the states; or at any point in between. Even today, waiting periods are unusual: California is one of just three states that (along with the District of Columbia) impose a waiting period on all gun purchases. Another seven states have waiting periods for certain gun purchases.

California argued that its waiting period 1) allows time for a background check, 2) discourages impulsive acts of violence, and 3) facilitates investigation of straw purchases. In practice, Ishii observes, a background check takes "anywhere from 1 minute to 10 days," and once it is completed, the first justification for a waiting period no longer applies. "For those who already own a firearm and are known to be trustworthy due to the licenses that they hold and a history of responsible gun ownership," he says, "there is no justification for imposing the full 10-day waiting period." Ishii also questions the relevance of the second justification as applied to current gun owners, since they already have the means to act on their violent impulses. Furthermore, "If an individual already possess a firearm and then passes the background check, this indicates a history of responsible gun ownership."

Regarding the third justification, Ishii writes, "There is no evidence that the legislature implemented the waiting period laws in order to give law enforcement the opportunity to investigate straw purchases." He also notes that such investigations are usually not completed within 10 days. In any case, he says, "applying the full 10-day waiting period to all transactions for purposes of investigating a straw purchase, in the absence of any reason to suspect that a straw purchase is in fact occurring, is too overbroad." 

Applying "intermediate scrutiny," Ishii concludes that California has not demonstrated a "reasonable fit" between a 10-day waiting period, as applied to current gun owners, and its asserted goals. To satisfy that test, "the regulation must not be substantially broader than necessary to achieve the government's interest." Ishii emphasizes that he is not passing judgment on the constitutionality of the waiting period as applied to people who do not already own guns, an issue the plaintiffs did not raise.

To qualify for the exception carved out by Ishii, a legal gun owner must be identified as such by the state. Ishii notes that the state's Automated Firearms System, which is queried during pre-sale background checks, includes records of handgun sales since 1996 (sometimes earlier) and long gun sales since the beginning of this year. That database also includes holders of concealed-carry permits and owners of registered "assault weapons."

[via Eugene Volokh]

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  1. How will the shitheads on HuffPo spin this decision passed down by a Clinton appointee?

    For,bonus points, he’s Asian. So they’re. Gonna have to tread lightly with their tried and true racism charges.

      1. You tell me:

        Look at his,profile. Criminal defense…Berkeley grad…Asian. He’s a liberal’s wet dream. They’re gonna have to go full retard to attack him personally. But I have faith in their ability to pull it off.

        1. People on the left have no problem with using racial slurs against those who stray off the reservation. The way a Progressive once explained it to me, if minorities and women reject all the protections provided by those on the left then they’re fair game for ridicule, derision and vile name-calling.

          1. Uncle Chan?

        2. Harry Reid would say that Ishii got it wong.

  2. JOODISHUL AKTUHVIZM!1!1!1!!1!!1!!1

  3. How is it Constitutional to make you wait 10 days if you don’t already own a gun?

    1. Well,hopefully this is a first step to ending that idiotic policy.

      Some enterprising conservative pol ought to propose a law that conducts a background check every time someone renews their drivers license and it’s noted somehow inconspicuously on it. That way if you present a drivers license, you are to be issues a gun immediately.

      As an added bonus, you might get the odd black SJW to admit it works or to complain about it singling out blacks,to which the argument can be made that they can be gotten for free and canoe used to vote with as well.

      1. I’ve tried to imagine a one-time background check card. I know, they’re usually BS, BUT if they have to exist…

        A person who moves to my state (NV) and wants to work at a casino AND get a CCW must undergo two separate fingerprinting processes. If they want to be a part-time business owner of a number of types of establishments, operate a day care, etc. they must get additional ones.

        I wish there were a streamlined way for a card to just have checkboxes of the things already covered. They all check for felonies, gaming card might check for misdemeanor thefts, some business licenses might deny misdemeanor frauds, teen dancehall operators will deny for misdemeanor crimes against children, daycare for sex offenses, and on and on.

        Just give one application where I can check off the things I wish to be vetted for on this fingerprinting run and spare me the time and money of getting multiple prints a few weeks apart.

        1. In some states, if you possess a CCW, you can forgo background checks, since presumably if you become a prohibited person you would lose your CCW.

    2. It’s not, but since the lawsuit was specifically against requiring it for people who already own a gun, the judge can’t rule on the wider issue of background checks in general. That will take another lawsuit.

      1. Whoops, that should be “waiting periods in general”.

      2. His reasoning will apply the same, so I give it a 60/40 shot.


    1. Oh Christ..

    2. What do you have against the Jews?

      1. They’re waaaay tooo active..

  5. I recently sold a Beretta shotgun online to a fellow in California. I didn’t realize he was from CA until after the auction so we started the process of shipping it there. I was in for a rude awakening. California FFL holders go out of their way to make it nearly impossible to mail them a long gun. I had to cajole the guy until he actually sent me a copy of his FFL and then he demanded all kinds of personal info for his “records.” The whole thing took several weeks when it should have taken an afternoon. And the poor guy had to wait another 10 days before he could claim the shotgun. Long story short, don’t ever sell a gun online to anyone from California.

    1. I’m not sure I’d sell any gun to anyone in California, offline, online, doesn’t matter.

  6. Apparently there’s a 10 day waiting period on alt-text too.

  7. Applying “intermediate scrutiny,” Ishii concludes…

    He should have applied strict scrutiny, but it’s nice that this doesn’t even clear the lower bar of intermediate scrutiny. It will make it harder to appeal.

    1. He applied intermediate scrutiny because there was some question about which standard should apply, and if the laws fail intermediate then they also fail strict.

    2. Strict scrutiny only applies to policies that are directly affecting favor identity groups.

  8. Soooo…..if lot’s of states HAD adopted waiting periods, thus making them longstanding and widely accepted, this law would be considered constitutional? See that doesn’t strike me as an argument from principle.

    1. Judges treat the law like this guy treats his body:

  9. I wonder how long it will take before the proggies drag St. Brady’s corpse out and scream about the betrayal of his life’s work..

  10. This scares me. This decsion respects both the Constitution and common sense. Where is the catch?

    1. Overturned by the Supreme Court in a 7-2 decision with the majority opinion written by Roberts?

      1. Let’s see, time is money – so the waiting period is really the government taking your money. Government taking your money is a tax. Unless the tax is prohibited in which case it’s a penalty since it only applies to prospective gun owners.

        Am I ready for the bench?

    2. They got the covert gun owners data base they were drooling for.

  11. deemed “presumptively lawful.”

    *** facepalm ***

  12. Funny thing – I would have said the opposite.

    If you don’t have a gun, its an unconstitutional burden on your 2nd amendment rights to make you wait 10 days for one.

    And if you *do* have a gun its both pointless (you *already* have one anyway) and unconstitutional (there’s no waiting period for the exercise of rights) to make you wait to pick up the second.

  13. Sometimes dude you jsut have to roll with it.

  14. Ahhh, so Cali has found a way to to overtly keep a gun owner’s data base. Along with having to list your guns if you’re one of the lucky few to get a carry permit. Last time I traveled out of this state you could see the steel curtain being built out in the desert near the border. Think I’ll just squeak out-a-here with my guns before they bring the steel curtain over the hi-way.

    Stay tuned, a Mexico style gun confiscation coming to Cali in 3 or 4 years.

  15. Unconstitutional? No, not at all. More like insane.

    How, on God’s green earth, is a “cooling off period” supposed to have any affect on a person who already has a firearm of the same type he is supposed to wait a week or more to pick up from the dealer he bought from???
    The answer is obvious. The “cooling off period” (which was originally a rationalization of the “delay to allow local law enforcement to check the background of would-be gun purchasers”, nullified by the “instant check” NICS computer system) is just one more bureaucratic stumbling block the anti-gunrights faction want to put in place to make the exercise of our rights under 2nd Amendment a bureaucratic nightmare.+

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