A three judge panel of the 9th Circuit Court of Appeals reversed the District Court in the case of Sylvester et al v. Harris. The decision released today found that the 10-day waiting period for California holders of a license to carry, holders of a California Certificate of Eligibility, or have firearms registered with the State of California was presumptively constitutional under intermediate scrutiny. This reversed the decision by Judge Anthony W. Ishii of the US District Court for the Eastern District of California who had found in 2014 that this waiting period contravened the Second Amendment.
The 9th Circuit’s opinion written by Judge Mary Schroeder, a Carter appointee, has some real gems in it. Referring to the District Court’s opinion she wrote:
The district court dismissed the State’s argument. The
court thereby essentially discounted the dangers inherent in
the proliferation of guns, including guns suitable only for use
to injure others, such as Saturday night specials or large capacity
guns that have been used in mass shootings.
Not only did Judge Schroeder use a term that has racist origins – Saturday night specials – but she asserts that firearms with “large capacity” are only suitable for killing or injuring others. No bias there, is there?
Judge Schroeder then continues later in her opinion to assert that firearms buyers in the 18th and 19th centuries had to wait a long period of time to receive their firearms. Thus, when examined in that context, a waiting period of (hopefully only) 10 days was no big deal.
There is, moreover, nothing new in having to wait for the
delivery of a weapon. Before the age of superstores and
superhighways, most folks could not expect to take
possession of a firearm immediately upon deciding to
purchase one. As a purely practical matter, delivery took
time. Our 18th and 19th century forebears knew nothing
about electronic transmissions. Delays of a week or more
were not the product of governmental regulations, but such
delays had to be routinely accepted as part of doing business.
It therefore cannot be said that the regulation places a
substantial burden on a Second Amendment right.
Intermediate scrutiny is appropriate.
As the announcer in the infomercial says, “But wait! There’s More”.
The district court reasoned that a cooling-off period
would not have any deterrent effect on crimes committed by
subsequent purchasers, because if they wanted to commit an
impulsive act of violence, they already had the means to do
so. 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.
The district court’s assumption is not warranted. 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. A 10-day cooling-off
period would serve to discourage such conduct and would
impose no serious burden on the core Second Amendment
right of defense of the home identified in Heller. 554 U.S. at
Obviously Judge Schroeder is ignorant of the damage that could be done by an ordinary shotgun like the Remington 870 when fired into a crowd. If you added something like the Paradigm Gator Shotgun Spreader choke and a shoulder bag full of #4 buck then you would have real carnage.
Chief Judge Sidney Thomas, a Clinton appointee and the architect of the en banc hearing in the Perutta case, wrote a concurring opinion agreeing with the decision but saying that waiting periods were presumptively lawful. Obama appointee Judge Jacqueline H. Nguyen joined in unanimous decision.
Brandon Combs, executive director of the Calguns Foundation, released a strongly worded statement on the decision. Combs, in addition to his position with Calguns, is one of the plaintiffs in the case.
SAN FRANCISCO (December 14, 2016) – In response to today’s Ninth Circuit Court of Appeals decision overturning the trial court in the case of Jeff Silvester, et al., v. Attorney General Kamala Harris, a federal Second Amendment civil rights lawsuit challenging the State of California’s 10-day waiting period laws, Brandon Combs, executive director of The Calguns Foundation, has released the following statement:
“Today, this panel of the Ninth Circuit Court of Appeals has proven to be more interested in their own policy preferences than the Constitution and the text, history, and tradition of the Second Amendment.
In its decision, the Court bizarrely ruled that even a person legally carrying a concealed weapon as he buys another gun at retail needs to be ‘cooled off’ for 10 days before taking possession of another constitutionally-protected firearm.
That holding is not even rational, much less should it survive any kind of heightened constitutional scrutiny compelled by the Supreme Court’s Heller and McDonald opinions.
After undertaking significant discovery, depositions, and a three-day bench trial, Federal District Court Judge Anthony W. Ishii issued his Findings of Fact and Conclusions of Law, which held the State of California’s 10-day waiting period laws to be irrational and unconstitutional as applied to three categories of gun purchasers.
Today’s opinion is but one of a growing string of wrongly-decided Second Amendment cases and serves to underscore that, if the fundamental, individual, Second Amendment right to keep and bear arms is to survive as something more than a second-class right, the Supreme Court will need to say so once more.
This fight is far from over. Our legal team is hard at work exploring all legal options to advance this case and the Second Amendment right to keep and bear arms.”
Silvester v. Harris is supported by civil rights organizations The Calguns Foundation (Sacramento, CA) and Second Amendment Foundation (Bellevue, WA).
Decisions like this by the 9th Circuit illustrate just how much the lower courts have blatantly ignored the Supreme Court’s decisions in both Heller and McDonald. It also illustrates the need for a originalist in the mold of Justice Scalia to fill his shoes on the Supreme Court. Perhaps when we get one, two, or three new justices on the Supreme Court appointed by a President Trump then nonsense decisions like this one out of the 9th Circuit will be slapped down in 6-3 or 7-2 decisions.