Ninth Circuit Overturns ruling on Second Amendment Waiting Period

Gun Watch ^ | 16 December, 2016 | Dean Weingarten

[marktwain]

On 14 December, 2016, a three judge panel of the Ninth Circuit Court of Appeals reversed the District Court ruling in Silvester v. Harris.  In the original decision, the District Court ruled that requiring a gun owner who had already passed a background check, and who either already owned a registered gun or had a concealed carry permit, was an infringement on the Second Amendment right to keep and bear arms. The Ninth Circuit held that a 10 day waiting period was a "reasonable safety precaution".  From the decision at uscourts.gov(pdf):

The panel reversed the district court’s bench trial judgment and remanded for entry of judgment in favor of the state of California in an action challenging a California law establishing a 10-day waiting period for all lawful purchases of guns. The panel first stated that this case was a challenge to the application of the full 10-day waiting period to those purchasers who have previously purchased a firearm or have a permit to carry a concealed weapon, and who clear a background check in less than ten days. The panel held that the ten-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved. The panel determined that it need not decide whether the regulation was sufficiently longstanding to be presumed lawful. Applying intermediate scrutiny analysis, the panel held that the law does not violate plaintiff’s Second Amendment rights because the ten-day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase.

 You can see that the decision claims that this reasoning is under the "intermediate scrutiny" standard. But it is clear that "intermediate scrutiny" has simply become another name for "rational basis" which is virtually no standard at all.  Here is another snippet. From sanluisobispo.com:

But 9th Circuit Judge Mary Schroeder said the waiting period makes sense, for example, for someone who already owns a hunting rifle but may want to buy 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," she said.

Using the rational of the Court, it is hard to see that there is any limit on the waiting period that could be imposed.  If a 10 day limit is not a serious burden, why not a 20 day, or a 40 day, or a year?  The court did not ask for or recieve any evidence that the presumed "rational" argument had any substance, had ever happened, or if any studies had ever been done to find out.

The Crime Prevention Research Center filed an amicus breif in the orginal case. From the brief:

Despite assertions that the benefits from waiting periods and background checks are obvious, the complete lack of empirical studies to support those claims is stark. No evidence is offered that either of these laws reduce violent crime, nor that they reduce overall suicide rates. Even more striking, the discussions that Appellant and amici use are not relevant to the case before the court.

The Ninth Circuit seems determined to uphold as many infringements on the Second Amendment as it can, until stopped by the Supreme Court. Until a new justice is appointed to replace Justice Scalia, it is unlikely that the Supreme Court will accept an appeal, or reverse the Ninth Circuit's decisions on the Second Amendment.

 ©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch

[marktwain]

With the assumptions made in this ruling, there is very little that would be considered an "infringement" under the Second Amendment.

[Mr. K]

Trump needs to disband the 9th circus.

[ctdonath2]

To wit “it’s reasonable because it’s reasonable.”

[Mr Rogers]

An example of why it was so critical for Trump to win! The Hillary Court would undoubtedly have overturned Heller and ruled guns could only be owned by government agents and private bodyguards of the rich and famous.

[DannyTN]

Trump needs to disband the 9th circus.

Trump can't. Only Congress could do that.

[dware]

With the assumptions made in this ruling, there is very little that would be considered an "infringement" under the Second Amendment.

It all falls under "reasonable safety precaution", the likes of which I find NOWHERE in the Constitution or Bill of Rights. That said, this is OUR FAULT. We REFUSE to stand. We think that, somehow, our lives and our fortunes are far more important than the Founders. We piss and moan, and then walk directly into a gun store and submit to an un-Constitutional background check, while the FFL dealer we're handing our money to is pissing all over the 2nd Amendment.

[SgtHooper]

You got that right!! What a bunch of clowns.

[NorthMountain]

The Ninth Circus strikes again. This needs to end up in front of SCOTUS ... after the confirmation of Scalia's successor.

[Gay State Conservative]

Hopefully this won't be reviewed before SCOTUS until DJT gets his nominee sworn in.Then,the 9th Circus can continue its tradition of being overturned by SCOTUS 90% of the time.

[Gay State Conservative]

...after the confirmation of Scalia's successor.

Beat me by 4 seconds! ;-)

[Uncle Sam 911]

Just cleaning up the 9th circuit would be a great legacy for Trump and the onlythe only other way to keep the lunatic fringe government of California in check along with holding tight the purse strings.

[Red Badger]

9th Circus:

INFRINGE: act so as to limit or undermine (something); encroach on.

[Jimmy The Snake]

I see this case working its way to a Trump Supreme Court.

[for-q-clinton]

a 10-day waiting period is fine as long as you don’t get murdered and need the weapon in those 10 days. Funny how they ignore the reason most people buy guns.

[NorthMountain]

Trump can't. Only Congress could do that.

But Congress could disband ALL of the Federal Courts (except SCOTUS), and reconstitute them with new judges appointed by the sitting President and confirmed by the Senate.

McTurtle hasn't the balls to do it.

[Lazamataz]

Hey, if a 10 day waiting period is ‘reasonable’, then a 10 year waiting period would be 365 times as ‘reasonable’.

[Rome2000]

A ban on unconstitutional federal courts is long overdue.

[NohSpinZone]

Wait for Trump’s SCOTUS appointment and Senate confirmation, then send it up to them. The Ninth Circus are SF-based commies.

[GOP Poet]

Does anyone in know if it is difficult for just a regular Joe (or Joette in my case) to get a conceal carry permit in California? I was thinking about getting one.

[ptsal]

Well, now is the time for Congress to get off its fat ass and act on this matter.