Ninth Circuit OK’s California’s Gun Waiting Period

Ryan Borchers

SAN FRANCISCO (CN) — The Ninth Circuit on Wednesday ruled that California law requiring people already in the state’s Automated Firearms System database wait 10 days to take possession after legally buying another gun is constitutional after all, reversing a trial judge.

Ninth Circuit Judge Mary Schroeder wrote for the panel: “(W)e agree with the State that the 10-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved.”

The lawsuit was narrowly tailored, to people already entered into the Automated Firearms System database, which the California Department of Justice uses as part of its background check, to those in the database who have a certificate of eligibility and people who hold concealed-carry permits. It did not challenge the entire 10-day waiting period, or the rule as it applies to first-time gun buyers.

“The essence of plaintiffs’ claim is that they are entitled to possession of guns they purchase as soon as the background check is completed,” Schroeder wrote for the unanimous panel.

A Sacramento federal judge agreed with the plaintiffs that the waiting period burdens Second Amendment rights. The state has an interest in enforcing public safety, but the waiting period does not help meet that goal, U.S. District Judge Anthony Ishii decided in Sacramento.

The Ninth Circuit disagreed.

“Our court, along with the majority of our sister circuits, has adopted a two-step inquiry in deciding Second Amendment cases,” Schroeder wrote: “first, the court asks whether the challenged law burdens conduct protected by the Second Amendment; and if so, the court must then apply the appropriate level of scrutiny.”

In this case, as in most Second Amendment cases, intermediate scrutiny was appropriate because the law does not severely burden Second Amendment rights.

“The contested application of the regulation to plaintiffs simply requires them to wait the incremental portion of the waiting period that extends beyond completion of the background check. The regulation does not prevent, restrict, or place any conditions on how guns are stored or used after a purchaser takes possession,” Schroeder wrote. “It therefore cannot be said that the regulation places a substantial burden on a Second Amendment right.”

The 10-day waiting period helps further the state’s legitimate ends because it provides a “cooling-off” period to temper people who may be acting on violent impulses. Studies the state presented in the district court, Schroeder wrote, suggest that the risk of a gun buyer committing suicide is highest immediately after purchase.

The district court reasoned that this line of thinking does not apply to subsequent purchasers. Were they inclined to violence, they would use their previous firearms.

However, “This assumes that all subsequent purchasers who wish to purchase a weapon for criminal purposes already have an operable weapon suitable to do the job,” Schroeder wrote. “An individual who already owns a hunting rifle, for example, may want to purchase a larger capacity weapon that will do more damage when fired into a crowd.”

Because the state demonstrated that the waiting period allows sufficient time for a background check and for a person to cool off, it has met its burden.

Chief U.S. Circuit Judge Sidney R. Thomas concurred in full, adding only that applying intermediate scrutiny to the law was unnecessary.

“The question here is whether the regulation in question is outside the scope of the Second Amendment and thus presumptively lawful,” he wrote. “The answer to that question is yes. In full, California’s reasonable waiting period is presumptively lawful as a condition or qualification on the commercial sale of arms, which the record demonstrates is also a longstanding regulatory measure. Therefore, I would resolve the inquiry at the first stage of analysis. If, however, the inquiry proceeded to the second stage, I agree completely with the majority’s analysis.”

Bradley Benbrook of Sacramento represented the plaintiffs: Jeff Silvester, Brandon Combs, the Calguns Foundation and the Second Amendment Foundation. California Deputy Attorney General Jonathan Eisenberg argued for the state. Neither could be reached for comment Wednesday.

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