California 10-day waiting period to buy gun violates the Second Amendment, as to people who are known to the state to already own guns

From Silvester v. Harris (E.D. Cal., dated Aug. 22, 2014 but apparently announced this morning) (some paragraph breaks added, some deleted):

1. Burden On The Second Amendment

When the 10-day waiting period laws apply, they prohibit every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. One cannot exercise the right to keep and bear arms without actually possessing a firearm. The purchased firearm cannot be used by the purchaser for any purpose for at least 10 days.

Also, in some cases, due to additional costs and disruptions to schedules, the 10-day waiting period may cause individuals to forego the opportunity to purchase a firearm, and thereby forego the exercise of their Second Amendment right to keep and bear arms. Therefore, the 10-day waiting period burdens the Second Amendment right to keep and bear arms. It is Defendant’s burden to show that the 10-day waiting period either falls outside the scope of Second Amendment protections as historically understood or fits within one of several categories of longstanding regulations that are presumptively lawful. Defendant has not met her burden.

[Footnote: Defendant has argued that because Combs and Silvester have each had a firearm during the relevant time period, their Second Amendment rights have not been impaired. However, that Combs and Silvester have been able to exercise their Second Amendment right with respect to at least one firearm does not mean that they have diminished rights under the Second Amendment. The Second Amendment applies to “arms” and its language does not limit its full protections to a single firearm. Some firearms are better suited for particular lawful purposes than others. Defendant has cited no authority that suggests that the Second Amendment only has application to a single firearm.]

First, in terms of relevant historical understandings, Defendant has not established that waiting period laws were understood to be outside the protections of the Second Amendment. Defendant has cited no statutes or regulations around 1791 or 1868 that imposed waiting periods between the time of purchase and the time of delivery. Nor has Defendant cited historical materials or books that discuss waiting periods or attitudes towards waiting periods between 1791 and 1868. There is no evidence to suggest that waiting periods imposed by the government would have been accepted and understood to be permissible under the Second Amendment.

Second, in terms of Heller’s longstanding presumptively lawful regulations, Defendant has not established that the 10-day waiting period is a presumptively lawful longstanding regulatory measure that imposes a condition and qualification on the commercial sale of a firearm. Such commercial regulations have been recognized as presumptively lawful by the Supreme Court. The Supreme Court did not explain what precisely it meant by the phrase “conditions and qualifications on the commercial sale of arms,” and the parties have cited no cases that interpret this phrase.

Through a parenthetical citation in Nordyke, the Ninth Circuit suggested that a county ordinance, which permitted firearms to be brought to gun shows on county property if the gun was secured or in one’s personal possession, was a law imposing a condition and qualification on the commercial sale of a firearm. Nordyke did not expand on the concept beyond parenthetically quoting the relevant language from Heller. Nordyke may be read as indicating that the manner of how a firearm is displayed for sale is an acceptable commercial regulation.

Aside from Nordyke, and based on a plain reading of the term, longstanding commercial regulations might entail regulations about who may sell (e.g. a licensed dealer) or purchase (e.g. someone over the age of 18) a firearm, what firearms may be sold (e.g. prohibiting the sale of certain types of firearms), when a firearm may be purchased (e.g. no purchases after 8:00 p.m.), or where a firearm store may be located (e.g. zoning ordinances). In comparison to Nordyke and a plain reading of Heller’s language, it is not clear to the Court that a 10-day waiting period would qualify as a commercial regulation. Defendant cites no comparable commercial laws that apply to other goods and that require an individual to wait around 10-days before completing a purchase. The Court is not satisfied that Defendant has shown that the 10-day waiting period is one of Heller’s envisioned conditions and qualifications of a commercial sale.

Moreover, Defendant has not established that the waiting period law is sufficiently “longstanding” to be entitled to a presumption of lawfulness. Included in the concept of a “longstanding and presumptively lawful regulation” is that the regulation has long been accepted and is rooted in history. It is true that California has had some form of a waiting period since 1923. However, as described above, the Court is aware of no waiting period laws in any states during the time periods around 1791and 1868. Consistent with these historical periods, currently only ten states impose a waiting period between the time of purchase and the time of delivery of a firearm.

Waiting period laws did not exist near the time of adoption of the Second and Fourteenth Amendments, and they are not common now. That one state may have had some form of regulation for a significant period of time is insufficient for the Court to conclude that the law has been so generally accepted that it is presumptively lawful. Further, the 10-day waiting period at issue was not imposed until 1996, and it was not until 1975 that California began to impose a waiting period that extended to double digits (15 days). Prior to 1975, the waiting period was 5 days. The waiting period that was in effect the longest in California was the 1-day waiting period between 1923 and 1955 for handguns, and there is an indication that the law was not applied to all transactions. Imposition of waiting periods beyond a “single digit” period is a recent development.

Finally, the waiting period at issue applies to all firearms. Prior to 1991, the waiting period applied only to handguns. Although the 1996 waiting period is shorter in duration than the 15-day period imposed in 1975, the 1996/1991 waiting period is wider in scope. Applying a waiting period to all firearms is a recent development. In essence, Defendant has simply pointed to the fact that California has had some form of waiting period since 1923. That is not enough.

The 10-day waiting period burdens the Second Amendment rights of the Plaintiffs.

2. Level Of Scrutiny

Defendants contend that intermediate scrutiny applies to this case. Plaintiffs contend that the Court may utilize intermediate scrutiny because, if the laws do not pass intermediate scrutiny, then they will not pass strict scrutiny. Plaintiff is correct that if the waiting period laws do not pass intermediate scrutiny, they will not pass strict scrutiny. Given the parties’ focus on intermediate scrutiny, and the necessary implication if the laws do not pass intermediate scrutiny, the Court need not decide whether strict scrutiny applies. Instead, the Court will examine the waiting period laws under intermediate scrutiny.

3. Governmental Interest

Defendant contends that California has important interests in public safety/preventing gun violence and preventing prohibited individuals from obtaining firearms. Plaintiffs do not dispute that these are important interests. Courts have recognized a state’s important public safety interest with respect to various firearms laws. “It is self-evident that public safety is an important government interest.” It is also self-evident that preventing people who are prohibited from possessing a firearm from obtaining one is also an important interest that goes hand in hand with public safety. Defendant has demonstrated that public safety and keeping firearms out of the hands of prohibited individuals are important interests.

4. Reasonable Fit

Defendant has identified three rationales that it contends are “reasonable fits” that justify the 10-day waiting period: (1) conducting a background check; (2) providing a “cooling off period” to prevent impulsive acts of violence; and (3) investigating straw purchases. The Court will assess each of these justifications in relation to the three “as applied” groups.

a. Those Who Have A Firearm In The AFS System [California Automated Firearms System]

The class of individuals that Plaintiffs identify within this group are those who already possess a firearm as confirmed by the AFS database, i.e. a firearm transaction is within the AFS system. Plaintiffs do not argue that this class of individuals should be exempt from further background checks. Rather, Plaintiffs contend that these individuals should not be subject to a per se 10-day waiting period, and should be able to take possession of their firearm upon passing the background check. Thus, under Plaintiffs’ arguments and challenges, this class of individuals will still be required to undergo and pass a background check when they attempt to purchase a firearm.

i. Background Check

Given the current BOF [California Bureau of Firearms] staffing levels, the potential additional research involved in reviewing a DROS [Dealer Record of Sales] application, and the possible response times from other agencies and states, 10-days is a sufficient period of time in the clear majority of cases for BOF to complete a background check and approve or deny a DROS application.

However, within the 10-day waiting period, background checks can be completed anywhere from 1 minute to 10 days.

20% of all DROS applications are auto-approved usually in about 1 to 2 hours, and require no further review. The mandated 10-day waiting period is the only thing that stops BOF from approving the sale and releasing the firearm when a DROS application is auto-approved.

80% of all DROS applications are not auto-approved, and further review, analysis, and/or investigation is necessary to determine if a person is prohibited from possessing a firearm. For non-auto-approved DROS applications that are completed within 10-days, the 10-day mandatory waiting period is the only thing stopping BOF from approving the sale and releasing the firearm.

For all DROS applications that are approved by BOF prior to expiration of the 10-day waiting period, conducting a background check is no longer a justification for the 10-day waiting period because the DROS applicant has been approved as determined by a completed background check.

Although additional disqualifying information may come to BOF’s attention during the 10-day waiting period, that can be said of any time-frame, be it 1 day or 60 days. Moreover, the requirement in essence is to pass the background check, it is not to pass the background check every day for 10 straight days. Further, 20% of all DROS applications are auto-approved in a very short period of time, and they normally are not reviewed or rechecked at any time.

Finally, of the approximately 99% of DROS applications that are approved, no new disqualifying information was obtained during the 10-day waiting period. Of the approximately 1% of DROS applications that are denied, there is no evidence regarding when in the 10-day waiting period that the disqualifying information was obtained, i.e. was the disqualifying information obtained during the initial BFEC or was it obtained late in the process as part of a re-check. Requiring an approved DROS applicant to wait the full 10-days, when the application is otherwise approved and the applicant already has a firearm in the AFS system, on the chance that new information might come in, is unduly speculative and anecdotal.

If disqualifying information arises about an individual who has already taken possession of a newly purchased firearm, California has in place the APPS system, which is designed to retrieve such firearms from prohibited persons. The APPS system acts as a safety net for individuals who have been previously approved to possess a firearm, but who later become prohibited.

ii. Cooling Off Period

The rationale behind the “cooling off period” is to prevent individuals from performing impulsive acts of violence to others or to themselves. The “cooling off period” seeks to limit a person’s access to a firearm.

Because 80% of DROS applications are not auto-approved, a waiting period of at least 1-day will naturally occur because CIS Analysts must obtain and review various information. If a person already possess a firearm, then that person will generally have access to that firearm and may commit impulsive acts of violence with it.

There is no evidence that a “cooling off period,” such as that provided by the 10-day waiting period, prevents impulsive acts of violence by individuals who already possess a firearm. A waiting period for a newly purchased firearm will not deter an individual from committing impulsive acts of violence with a separate firearm that is already in his or her possession.

[Footnote: Defendant argues that because some firearms are better suited for certain purposes than other firearms, a waiting period may prevent an impulsive act of violence with the new weapon. Relying on Agent Graham’s testimony, Defendant cites the example of Shareef Allman, an individual who had several firearms, including at least one pistol, a rifle, and an assault-style weapon, and who killed nine people in Cupertino, California. The assault-weapon was not used in the shooting. The pistol was obtained legally, and it was unknown whether the rifle was legally obtained.

However, as Agent Graham admitted, any cooling off period created by the 10-day waiting period did not work. In Allman’s case, Allman did not use the most dangerous firearm (the assault weapon). The firearms that Allman did have were either lawfully obtained and subjected to the 10-day waiting period, or they were obtained unlawfully and not subject to any background checks or waiting periods. Aside from Allman, Agent Graham had no other examples.]

None of the submitted social science studies/excerpts advocate for a 10-day waiting period, or attempt to defend a 10-day waiting period as being supported by clinical or empirical evidence. The studies that are supportive of waiting periods are supportive in theory and seem to assume that the individual does not already possess a firearm.

It is true that some individuals may not have ammunition for a firearm in their possession, or that the firearm may not be in working condition. However, no evidence attempts to quantify this, and it is unduly speculative to conclude that this is a common occurrence.

If an individual already possess a firearm and then passes the background check, this indicates a history of responsible gun ownership. There has been no showing that applying the 10-day waiting period to all individuals who already possess a firearm will materially prevent impulsive acts of violence.

In terms of the AFS database to confirm possession of a firearm, the BCEF can be modified to make a simple check if a DROS applicant has a firearm within the AFS database. It is true that the AFS system does not contain every firearm in circulation in California. However, if a person has a weapon that appears within the AFS system database, and that person’s application is otherwise approved, Defendant has not explained why it should be presumed that such an individual no longer possesses the firearm. Such a presumption is not supported by any identified evidence.

Moreover, the AFS system is available to law enforcement personnel on a real time basis in the field, and law enforcement considers the AFS system to be reliable. If a law enforcement officer in the field who is about to confront a suspect can use and rely on the AFS system and proceed with more caution, then it is unknown why Cal. DOJ or BOF cannot also assume that an otherwise approved DROS applicant is still in possession of a firearm that is in the AFS system. Considering the absence of relevant data, law enforcement’s real time reliance on the AFS system, and an otherwise approved background check, it can reasonably be assumed that a DROS applicant who has a firearm in the AFS system is still in possession of that firearm.

iii. Straw Purchases

There is no evidence that the legislature implemented the waiting period laws in order to give law enforcement the opportunity to investigate straw purchases.

In a straw purchase, although it might be easier to intercept a weapon prior to delivery, this only occurs in about 15% of investigations. There is no evidence regarding the number of straw purchase investigations that lead to arrests or convictions or retrievals of firearms relative to the number of DROS applications. Further, although some straw purchasers have purchased other guns in the past, there is no evidence regarding how often this occurs.

Straw purchase investigations begin when law enforcement officers review paperwork at gun shops, observe behavior and interactions at gun shows, or receive a tip from BATFE or a gun shop owner. Not all of the transactions observed or paperwork examined create a reasonable belief that a straw purchase is occurring. The agents only investigate a transaction if they have reason to believe that a straw purchase is occurring. Given Agent Graham’s description of straw purchase investigations, the vast majority of transactions do not appear to be straw purchases.

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.

If law enforcement officers personally observe what they believe to be a straw purchase, be it at a gun show or at a gun store, they may intercede during the purchase process.

If the legislature believes that law enforcement should have additional time in which to investigate a straw purchase, then a statute could be enacted that permits law enforcement to cause a delay in the approval of a DROS application, if law enforcement has reason to believe that a straw purchase is occurring.

iv. Conclusion

As applied to individuals who already possess a firearm as confirmed by the AFS system, Defendant has not established that applying the full 10-day waiting period when the background check is completed prior to 10-days is a “reasonable fit.” The 10-day waiting period laws as applied to individuals who already lawfully possess a firearm as confirmed by the AFS system, and who pass the background check prior to 10-days, violates the Second Amendment.

[Footnote: Again, the Court emphasizes that this as applied challenge is not one that challenges the requirement that a purchaser pass a background check. These individuals must still pass the background check when they attempt to purchase a firearm. They may not, however, be required to wait the full 10-days if the background check is completed and approved prior to 10-days.] …

The court also held much the same as to people who have concealed carry permits.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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