9th Circuit Reverses District Court Victory In Sylvester v. Harris

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.

A Big Win In California

US District Court Judge Anthony W. Ishii just ruled today that 10-day waiting periods to pick up your firearm after purchase were unconstitutional as applied to certain individuals. The case, Silvester v. Harris, challenged the waiting periods for those who had passed a background check and who had either a California issued license to carry or hold a Cal-DOJ issued Certificate of Eligibility and possess at least one firearm known to the state.

Here is the release on the win from the CalGuns Foundation who was one of the plaintiffs in the case:

ROSEVILLE, CA (August 25, 2014) – California’s 10-day waiting period for gun purchases was ruled unconstitutional by a federal judge this morning in a significant victory for Second Amendment civil rights. The laws were challenged by California gun owners Jeffrey Silvester and Brandon Combs, as well as two gun rights groups, The Calguns Foundation and Second Amendment Foundation.

In the decision released this morning, Federal Eastern District of California Senior Judge Anthony W. Ishii, appointed to the bench by President Bill Clinton, found that “the 10-day waiting periods of Penal Code [sections 26815(a) and 27540(a)] violate the Second Amendment” as applied to members of certain classifications, like Silvester and Combs, and “burdens the Second Amendment rights of the Plaintiffs.”

“This is a great win for Second Amendment civil rights and common sense,” said Jeff Silvester, the named individual plaintiff. “I couldn’t be happier with how this case turned out.”

Under the court order, the California Department of Justice (DOJ) must change its systems to accommodate the unobstructed release of guns to gun buyers who pass a background check and possess a California license to carry a handgun, or who hold a “Certificate of Eligibility” issued by the DOJ and already possess at least one firearm known to the state.

“We are happy that Second Amendment rights are being acknowledged and protected by our courts,” said Donald Kilmer, lead attorney for the plaintiffs. “This case is one more example of how our judicial branch brings balance to government in order to insure our liberty. I am elated that we were able to successfully vindicate the rights of our clients.”

Attorneys Victor Otten of Torrance and Jason Davis of Mission Viejo were co-counsel for the plaintiffs.

“This ruling clearly addressed the issue we put before the court,” said SAF founder and Executive Vice President Alan Gottlieb. “We are naturally delighted with the outcome.”

“California gun owners are not second-class citizens and the Second Amendment doesn’t protect second class rights,” noted plaintiff Brandon Combs, also CGF’s executive director. “This decision is an important step towards restoring fundamental individual liberties in the Golden State.”

“This victory provides a strong foundation from which other irrational and unconstitutional gun control laws will be challenged,” concluded Combs. “We look forward to doing just that.”

The court’s decision can be read or downloaded at http://bit.ly/silvester-v-harris-decision.

This is great news for Californians. Brandon Combs, one of the plaintiffs, was just a guest on The Polite Society Podcast that aired yesterday.  We’ll certainly have to have him back soon!

Sebastian has more on the win here.

California Waiting Period Fails To Meet Constitutional Muster

Senior Federal District Court Judge Anthony W. Ishii denied Attorney General Kamala Harris’ Motion for Summary Judgment today and indicated that California’s 10-day waiting period probably is unconstitutional when viewed under either intermediate or strict scrutiny.

The CalGuns Foundation which along with the Second Amendment Foundation brought the case
challenging the 10-day waiting period is extremely pleased by this development as noted in their press release below.

I’ll have more after I’ve had to read the ruling. Sebastian at Shall Not Be Issued has some comments on the case here. Likewise, Professor Eugene Volokh has his analysis of the decision here.

From CalGuns:

Federal Judge Says California Attorney General Kamala Harris Wrong on Gun Control Laws

Court denies Harris’ arguments and agrees with gun rights group The Calguns Foundation, says state’s firearm waiting period laws fail to meet Constitutional muster

ROSEVILLE, CA — In a rejection of California Attorney General Kamala Harris’ stance on the rights of law-abiding gun owners, Senior Federal District Court Judge Anthony W. Ishii denied Harris’ motion for summary judgement today in a federal civil rights lawsuit filed by The Calguns Foundation, indicating that California’s 10-day “waiting period” gun laws are likely unconstitutional.

“The fact that a federal judge saw these laws for what they are — baseless restraints on the exercise of a fundamental civil right — is monumental,” explained Gene Hoffman, Chairman of The Calguns Foundation. “California’s waiting period laws for those who own guns is not Constitutional and this order really underlines the point.”

In his order, Judge Ishii said that Harris has “not presented sufficient evidence to show that the [10-day waiting period laws] passes either intermediate or strict scrutiny.”

About the laws being challenged in the case, named plaintiff Jeff Silvester of Hanford, California, said, “I have a license to carry a loaded firearm across the State.It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”

“This is certainly an exciting development in Second Amendment case law,” noted Brandon Combs, an individual plaintiff in the case and the Executive Director of The Calguns Foundation. “If our Constitution means what it says, then California’s gun waiting period laws have to be overturned and law-abiding people must be allowed to exercise their rights without irrational infringements.”

Regardless of the final decision at the district court, the case is virtually certain to end up at the Ninth Circuit Court of Appeals, and possibly even the United States Supreme Court.

“Cases like this one will define the limits of government regulations on firearms and Second Amendment rights,” said Combs. “We look forward to making sure laws like California’s waiting period are properly scrutinized by the courts.”

Judge Ishii was appointed to the Federal District Court for the Eastern District of California by President Bill Clinton in 1997.

A full copy of the Court’s December 9, 2013, order may be viewed at http://www.calgunsfoundation.org/?p=1683.

The press release announcing the lawsuit and case docket may be viewed at http://www.calgunsfoundation.org/?p=1024.

UPDATE: Here is the correct link to the Court’s Dec. 9th order denying the motion for summary judgment.