Late Friday News No. 1 – From Calguns Foundation

The Calguns Foundation sent out an update on their appeal for certiorari to the US Supreme Court regarding California’s 10-day waiting period on Friday. Silvester et al v. Becerra challenges the 10-day waiting period for those individual who either holds a California issued carry permit or is an existing gun owner who holds a California certificate of eligibility. This case was a win at the District Court level but the 9th Circuit Court of Appeals overturned that decision. They bizarrely held that even existing firearms owners need a 10-day cooling off period.

From Calguns:

WASHINGTON,
D.C. (October 27, 2017) – A Second Amendment lawsuit out of California
is drawing attention at the Supreme Court and support from multiple
groups, said gun rights group The Calguns Foundation, which joined
Second Amendment Foundation and two individuals on a petition in
September seeking the Court’s review of a Ninth Circuit ruling that
upheld the state’s 10-day waiting period laws when they are enforced
against law-abiding gun owners after they pass a rigorous background
check.
Last
month, the respondent California Attorney General Xavier Becerra waived
his right to reply to the petition. But on September 29 the Supreme
Court ordered the State to reply; on October 24, the Court granted the
State of California an extension of time to file that reply, making the
new deadline December 1. Adding support for the case, multiple briefs
have been filed in support of the petitioners, encouraging the Supreme
Court to grant review and overturn the Ninth Circuit’s ruling.
In
a brief authored by preeminent constitutional scholars Ilya Shapiro and
Trevor Burrus, the Washington, D.C.-based think tank Cato Institute
presented a strong case for the Court to grant certiorari.  The brief
argues, among other things, that intermediate scrutiny “means something
different in almost every circuit [court of appeal] when applied to the
Second Amendment” and that the Ninth Circuit “abused petitioners’
fundamental rights by misapplying intermediate scrutiny.”
And
in another brief, former California Deputy Attorney General Raymond M.
DiGuiseppe argued on behalf of a coalition of Second Amendment advocacy
groups—including Firearms Policy Coalition, Firearms Policy Foundation,
Gun Owners of California, and Madison Society Foundation—that Supreme
Court review is necessary in this case “to reestablish the rule of law
and halt the trend of judicial obstructionism” that is “jeopardizing”
the constitutional protections of the Second Amendment. “This is not the
first time the Ninth Circuit has played ‘fast and loose’ with the
Court’s Second Amendment jurisprudence to fend off constitutional claims
– nor will it be the last if this Court does not step in,” the brief
said.
Attorneys
Douglas A. Applegate and George M. Lee of the San Francisco-based law
firm Seiler Epstein Ziegler & Applegate LLP filed a brief for the
Crime Prevention Research Center, a research and education organization
led by the renowned economist Dr. John Lott, arguing that “the standards
applied by the lower courts vary widely” and that “the Ninth Circuit
reversed the evidentiary findings of the trial court and supplanted the
evidence that the trial court received and weighed with its own
non-empirical views of what it thought was reasonable.”
“We
are pleased that other groups have recognized the serious flaws in the
Ninth Circuit’s approach,” explained Erik S. Jaffe, the petitioners’
Supreme Court counsel. “The results-driven analysis in the opinion below
not only does violence to the Second Amendment, but does violence to
the rule of law and respect for the courts. We are hopeful that the
Justices, whatever their views on the scope of the Second Amendment,
will recognize that the decision below is well out of bounds of any
reasonable reading of Supreme Court precedent or standards for
intermediate scrutiny and will take the necessary steps to ensure the
fair administration of justice in Second Amendment cases.”
In
2014, Federal District Court Judge Anthony W. Ishii—nominated to the
bench by then-President Clinton—held that California’s waiting period
laws were unconstitutional as applied to three categories of gun
purchasers after undertaking significant discovery, depositions, and a
three-day bench trial.
But
in 2016, the United States Court of Appeals for the Ninth Circuit
bizarrely ruled that even a person legally carrying a concealed handgun
as he buys another gun at retail, and who passes a further background
check, needs to be “cooled off” for another 10 days before exercising
his Second Amendment rights and taking possession of a
constitutionally-protected firearm.
Brandon
Combs, an individual plaintiff in the case as well as the executive
director of institutional plaintiff The Calguns Foundation, said that
the briefs made excellent arguments and further supported the petition
for review. “The Supreme Court has everything that it needs in a case
with an excellent trial record teed up here to save the Second Amendment
from hostile lower courts.”
“We are grateful to these amici
organizations and their counsel for their support of this case and
standing up for constitutional principles,” concluded Combs. 
A copy of the Silvester petition to the Supreme Court and the amicus briefs can be viewed or downloaded at https://www.calgunsfoundation.org/silvester.

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