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]