Supreme Court

Supreme Court Won't Review 10-Day Waiting Period for Gun Purchases, Clarence Thomas Dissents

"The right to keep and bear arms is apparently this Court's constitutional orphan."


U.S. Supreme Court

Today the U.S. Supreme Court declined to hear a Second Amendment case challenging California's 10-day waiting period for firearms purchases. Writing in dissent, Justice Clarence Thomas faulted his colleagues for their "inaction" and for turning the Second Amendment into "a disfavored right in this Court."

The case is Silvester v. Becerra. It arose when several lawful California gun owners, supported by the Calguns Foundation and the Second Amendment Foundation, filed a lawsuit claiming that the state's 10-day waiting period for firearms purchases is unconstitutional as applied to "those purchasers who already own a firearm or have a license to carry a concealed weapon, and who clear a background check in fewer than 10 days." Because it typically takes only a day or two for most such background checks to go through, they argued, the government has no legitimate reason to make "previous purchasers" wait the full 10 days.

That argument prevailed before the the U.S. District Court for the Eastern District of California, which ruled against the 10-day waiting period in the context of "previous purchasers." But the U.S. Court of Appeals for the 9th Circuit reversed the District Court on appeal, upholding the regulation based on what it called the "common sense understanding" that a 10-day "cooling off" period for gun buyers can help to reduce gun violence.

It was the gun owners' appeal of that 9th Circuit decision that the Supreme Court declined to take up today, prompting Justice Thomas to take the rare step of dissenting from the Court's refusal to hear the case.

According to Thomas, the 9th Circuit ruled in the state's favor "without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without acknowledging the District Court's factual findings." What is worse, he wrote, "this deferential analysis was indistinguishable from rational-basis review," yet the Supreme Court explicitly forbade rational-basis review in the Second Amendment context in its 2008 opinion in District of Columbia v. Heller. "The Ninth Circuit would not have done this for any other constitutional right," Thomas maintained.

The justice reserved his strongest criticism, however, for his colleagues on the High Court. "If this case involved one of the Court's more favored rights, I sincerely doubt we would have denied certiorari," Thomas observed. "I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State's purported interest in creating a 'cooling off' period…. The right to keep and bear arms is apparently this Court's constitutional orphan."

Justice Thomas's dissent from the denial of certiorari in Silvester v. Becerra is available here.

Related: Why Did a Conservative Judge Uphold an Assault Weapons Ban?