Harris v. Silvester

Gun Owners Foundation (and GOA) is challenging California’s 10-day waiting period to purchase a firearm -- in a case that is currently before the United States Court of Appeals for the Ninth Circuit.

In California, one must wait 10 days before he can possess the firearm he purchases. Proponents argue that because the waiting period is regulating the commercial sale of firearms, it is “reasonable” and therefore constitutional.

However, GOF asserts that this argument clearly goes against the Second Amendment text and historical principles, as well multiple Supreme Court decisions.

The Summary of GOF’s Brief

Gun Owners Foundation argues that, according to the Heller decision from 2008, the waiting period does not fall under valid “commercial regulations.” Proponents of the waiting period simply ignore the Heller decision in the same way they ignore the Constitution. Indeed, California had no commercial justification for the waiting period, arguing only that the waiting period furthered public safety interests.

Next, GOF argues that the waiting period actually undermines the original purpose of the Second Amendment. Those in support of the waiting period claim it is needed for public safety, but as notes in our brief, “public safety” has always been the justification of tyrants to disarm the populace -- all the way back to the 1689 English Bill of Rights, which granted the right to arms only to Protestants, and George III, who disarmed the inhabitants of those areas who did not support the crown.

Here, California follows the same trend, exempting various favored classes of law enforcement personnel who are “loyal to the Crown.” But, as the Supreme Court has said, the Second Amendment belongs to “all Americans,” not just to friends of the government.

Third, GOF argues that, while the district court correctly determined that the waiting period is unconstitutional, it did so for the wrong reasons. The district court based its decision not on the text and context of the Second Amendment, but on the same type of judicially-devised interest balancing test that the Supreme Court rejected in Heller.

Like so many who challenge gun laws, the Plaintiffs in this case no doubt desired to appear reasonable to the court. To do so, the Plaintiffs made concessions on matters that were not at issue in their case:

* First, even though the case did not involve California's background check, the Plaintiffs conceded that background checks are an appropriate tool to keep guns out of the hands of disqualified persons -- as if the Second Amendment says “shall not be infringed after a background check is performed.”

* Second, the Plaintiffs conceded that waiting periods are perfectly fine for others, but not for Plaintiffs -- as if the Second Amendment states “the right to keep and bear arms after waiting 10 days.”

Finally, our brief criticizes the district court’s opinion for not basing its decision on the text and context of the Second Amendment. Indeed, the district court admitted up-front that California’s waiting period “infringes” Second Amendment rights. That should have been the end of the discussion.

However, the district court continued, using a balancing test to determine whether to permit the “infringement” of a right that “shall not be infringed.” In the end, the court decided that the infringement was too burdensome, while the alleged public safety interests at issue were not well served.

Of course, using such a subjective test, the case easily could have come out another way in another court (or on review by the 9th Circuit en banc), based on how the balance of interests seemed to the sensibilities of a different judge. The Second Amendment is not so complicated.

California's waiting period is unconstitutional simply because it infringes “the right of the People to keep and bear arms” -- not because it seemed too severe a burden to a federal judge.