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Pay attention to California order in waiting period case

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A federal judge in California yesterday issued an order in a case involving the Bellevue-based Second Amendment Foundation to which gun advocates and prohibitionists ought to pay equal attention, and a keen analysis by internet blogger Eugene Volokh, proprietor at The Volokh Conspiracy, explains why.

It is a small, but quite possibly significant win for California gun owners, and perhaps firearms owners everywhere, depending upon where the case goes from here.

Here, in part, is what Senior Judge Anthony Ishii of the U.S. District Court for the Eastern District of California, said in his order denying a motion to dismiss the case called Silvester v. Harris, which challenges California’s ten-day waiting period law (WPL) on the delivery of a firearm:

“The WPL as applied against those who have previously purchased firearms or who possess certain state licenses is the equivalent of a prior restraint, and thus should be analyzed under strict scrutiny. However, under either strict scrutiny or intermediate scrutiny, the WPL fails. In terms of strict scrutiny, Harris has not shown that the law is effective either in reducing gun violence or in keeping firearms out of the hands of unqualified purchasers where the government has already issued that purchaser a License To Carry or a Certificate Of Eligibility.”

The defendant in this case is California Attorney General Kamala Harris, who has been defending the Golden State’s 10-day waiting period on every firearm transaction. She filed a motion to dismiss the case, filed almost two years ago by the CalGuns Foundation, chaired by Gene Hoffman; SAF, headed by Alan Gottlieb, and three individual plaintiffs, including Jeff Silvester, for whom the case is named.

Judge Ishii elsewhere observed in his 11-page order, “The WPL prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. That is, there is a period of at least 10 days in which California prohibits every person from exercising the right to keep and bear a firearm. There can be no question that actual possession of a firearm is a necessary prerequisite to exercising the right to keep and bear arms. Further, there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm…

“…Although Harris argues that the WPL is a minor burden on the Second Amendment, Plaintiffs are correct that this is a tacit acknowledgment that a protected Second Amendment right is burdened. Therefore, the Court concludes that the WPL burdens the Second Amendment right to keep and bear arms.”

Volokh, pointing readers to an essay he did in 2009 regarding so-called “cooling-off periods” for the UCLA Law Review, suggests that not all waiting periods are unconstitutional but it may be up to the courts to determine whether a waiting period is excessive.

It is what Judge Ishii said – equating California’s WPL with a prior restraint – that should get the attention of the press, because it strikes at the heart of an issue that amounts to a raw nerve among journalists: government intervention in the exercise of a constitutionally-protected civil right. As it applies to the First Amendment, it deals with government censorship. As it applies to the Second Amendment in the Silvester case, it could mean that 10-day waiting periods amount to the same kind of government interference with the exercise of a right.

If government can impair one civil right, the others are endangered.

In his order, Judge Ishii notes, “While it is appropriate to have a background check, the current systems and data available do not make the 10-day waiting period reasonable.”

There is something else about the 10-day “cooling off” period. On page 5 of Judge Ishii’s order, he explains a fundamental problem with what plaintiffs in the case consider an arbitrary waiting period.

“Harris argues that the WPL imposes a minor burden,” the judge observed, “which at a minimum concedes that it is a burden and/or infringement on the right to keep and bear arms. Every gun purchaser in California is deprived of the right to bear arms for at least 10 days, and is required to make additional trips to obtain the firearm. There are no alternative means of legally exercising this fundamental right without going through these burdens. No matter how great the need may be for a firearm for self-defense, there is no alternative but to wait at least 10 days. Because the WPL burdens the Second Amendment, heightened scrutiny must be applied.”

It is safe to say that courts are in the process of breaking much new ground regarding the Second Amendment right to keep and bear arms, opening the door to some interesting observations from the bench. The proverbial floodgate was opened with the Supreme Court’s 2008 Heller ruling that recognized and affirmed the Second Amendment protects an individual civil right, and the court’s subsequent 2010 McDonald ruling that incorporated the Second Amendment to the states through the 14th Amendment.

There was the ruling in a Maryland case by U.S. District Court Judge Benson Everett Legg in which he observed, “In addition to self-defense, the (Second Amendment) right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”

The Illinois Supreme Court, following the lead of the federal Seventh Circuit Court of Appeals, unanimously noted, “As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the Second Amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the Second Amendment right to keep and bear arms extends beyond the home.”

Where is this all leading? In an ideal world, the legal path would be a yellow brick road to a determination that the Second Amendment means what it says, and that law-abiding gun owners could have any kind of bearable firearm they want.

But ours is not an ideal world. As courts have done with every other civil right, they will likely lean toward very careful, and perhaps incremental, dissection and definition of the right to keep and bear arms. What is happening now in California appears to be an effort to determine just what an acceptable wait might be between time a person buys a gun and the time he or she receives the firearm. That wait may be no longer than the time it takes to run a background check which, thanks to available technology, is not much more than a few minutes.

And this should be kept in the perspective so eloquently stated by the late Dr. Martin Luther King: “A right delayed is a right denied.”

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