Overview: California has some of the strongest gun control laws in the country, no doubt the most rigorous in all the land. That does not sit well with Second Amendment advocates who challenge almost all new laws regulating buying or owing a gun, as was the case in this Law Review where California’s 10 day Waiting Period was upheld by a federal Court of Appeals, in a case Jim Porter predicts will make it to the US Supreme Court, even though the objection is so insignificant as to be almost silly.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Second Amendment, U.S. Constitution.
10-Day Waiting Period
That harmless little sentence seems pretty clear, right? Or not.
California has a 10-day waiting period for would-be gun purchasers. The 10 days gives the State time to check into the background of the buyer and gives the buyer a cooling off period which may prevent impulsive violence or suicide.
Second Gun Purchase
The 10-day waiting period has been upheld by the courts.
The question in our case, Silvester v. Kamala D. Harris (former California Attorney General), is whether California violated the Constitution by requiring a person who has previously purchased a firearm or who already has a permit to carry a concealed weapon (CWP), is still required to wait the full 10 days if they clear the background check in less than 10 days.
In other words, why should someone who already owns a gun or has a CWP have to wait 10 days?
Challenge All Gun Laws
The federal trial judge agreed with the pro-gun Plaintiffs saying the 10-day wait period was a violation of the Plaintiffs’ Second Amendment Rights.
The Plaintiffs concede that even for a second gun purchase or even if the would-be buyer has a CWP, they must wait for approval by the California Bureau of Firearms (BOF) for their background check, but if that’s completed in less than 10 days, they want their gun. No more waiting around.
As the Court of Appeals wrote, “Plaintiffs do not seek instant gratification of their desire to purchase a weapon, but they do seek gratification as soon as they have passed the BOF background check.”
The point here is not so much that Plaintiff Jeff Silvester wanted that gun as soon as he could get his hands on it, but he and other gun advocates want to challenge gun laws at every opportunity.
Supreme Court Heller Decision
In the Heller decision, the U.S. Supreme Court ruled that the right of self defense in the home is central to the purpose of the Second Amendment, but cautioned that Second Amendment rights are “not unlimited.”
“Laws imposing conditions and qualifications on the commercial sale of arms…could be valid.”
California’s Waiting Period Laws
California has had a waiting period law for firearm purchases continuously since 1923. The purpose is to allow time for law enforcement to complete a background check and also to provide a “cooling off” period. The 1923 law barred delivery of a pistol on the day of purchase. That was extended to five days in 1965, then to 15 days in 1975.
In 1991, California expanded the waiting period to cover all firearms. With a switch to an electronic data base system, California reduced the waiting period from 15 days to 10 days in 1996.
Cooling Off Period
The federal Court of Appeals determined that the 10 day waiting period does not place a substantial burden on a Second Amendment right to purchase a firearm. The waiting period meets the objective of promoting safety and reducing gun violence.
“The waiting period provides not only for a background check, but also for a cooling-off period to deter violence resulting from impulsive purchasers of firearms.” I’m not sure that rationale applies to someone who already owns a gun.
This case is surely heading to the U.S. Supreme Court who by all accounts will soon have a conservative new justice appointed by King Trump. Fair chance California’s second gun purchase waiting period will not be upheld.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real eState, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
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The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters.