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.

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.

[via
Eugene Volokh]