Posted on 08/25/2014 1:57:32 PM PDT by marktwain
In JEFF SILVESTER v. KAMALA HARRIS, the United States District Court for the eastern District of California found that the 10 day waiting period to receive a firearm after a background check, was a violation of the second amendment for people who already owned a firearm (and could be shown to do so in the California database), who had a valid CCW license in California, or who owned a firearm and had a Certificate of Exemption (COE).
This is a significant win for restoration of second amendment rights in California. The court gave the government of California 180 days to implement changes to put this ruling into effect. From the ruling, formatting changed slightly for readability:
Conclusion
As applied to individuals who already possess a firearm as confirmed by the AFS system, Defendant has not established that applying the full 10-day waiting period when the background check is completed prior to 10-days is a “reasonable fit.” The 10-day waiting period laws as applied to individuals who already lawfully possess a firearm as confirmed by the AFS system, and who pass the background check prior to 10-days, violates the Second Amendment.38
See Edenfield, 507 U.S. at 770-71; Peruta, 742 F.3d at 1177; Valley Broadcasting, 107 F.3d at 1334.Readers should consider the entire ruling to understand the full implications, but it is clear that for people who already possess a firearm, or who have gone through the CCW process in California, the 10 day waiting period is considered as violating the second amendment, if they have passed the background check.
A regulation “may not be sustained if it provides only ineffective or remote support for the government‟s purpose,” rather there must be an indication that the regulation will alleviate the asserted harms to a “material degree.”Yet, the waiting period only has a positive effect for the government purposes in less than 1% of the people directly affected by the regulation! I know of no studies that show that waiting periods actually reduce crime, and there are studies that show they may increase it. It appears to me, that even under the relatively easy standards of intermediate scrutiny, the government would not be able to show that waiting periods were effective and narrowly tailored to their purpose.
It is a good building block toward finding that waiting periods are an unconstitutional infringement altogether.
While the ruling is logical and correct, the state of California will likely appeal to the illogical and most often incorrect (based upon being so often overruled by the US Supreme Court) Ninth Circuit Court of Appeals.
As I recall, the purpose of the 10 day waiting period was to reduce suicides. But for a person who already owns a gun, the waiting period serves no purpose at all. Good ruling.
As a side note to this thread, please consider the following. Calfiornia could have gotten away with requiring a waiting period for guns before the 14th Amendment (14A) was ratified. This is because the Founding States had decided not to make the rights protected by the BoR, including 2A, applicable to the states. Again, 14A changed that.
It might have. There were state court rulings that said that the second amendment applied to the states before California became a state.
Isn’t this the same State Atty. General who refused to support or defend capital punishment for cop killers? Now she hot for lead? Must be a change of Campaign Donorship going on.
Thank you for that note.
Also note that John Bingham, the main author of Section 1 of 14A, had clarified in congressional record that privileges and immunities protected by Constitution did not apply to the states until 14A was ratified.
“These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.” — John Bingham, Appendix to the Congressional Globe (See bottom half of 2nd column.)
Regarding state courts that argued that 2A did apply to states before 14A was ratified, please consider the following. To an extent, the states have the 10A-protected state power to interpret the Constitution as wrongly as they damn well please. Just ask California.
Waiting periods slow me down.
I live in an instant gratification society and I can buy a brand new car faster than I can I buy a couple pieces if wood and some metal...
Alls I No, is 10 waiting period kills me...
"Ten days? But I’m mad now!"
This is a lawsuit against Harris. She’s defending the waiting period.
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