On June 2, our firm filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit, in support of a challenge to California’s 10-day waiting period for firearm purchases. One of the most draconian states when it comes to Second Amendment rights, California forces its residents to wait 10 days after a purchase before a lawful buyer may acquire a lawful firearm.
First, our brief dispelled the notion that California’s waiting period is “presumptively lawful” under Heller as a “condition on commercial sales of arms.” While Heller did indicate that certain types of laws would not violate the Second Amendment, that list is subject to the “Associated Words” canon of construction, where the items in the list must be read as having a meaning informed by that context. Understood in that way, “conditions” must relate to commercial activity generally (like zoning, hours of operation, etc.), not to the Second Amendment specifically. Indeed, California had no commercial justification for the waiting period, arguing only that the waiting period furthered public safety interests.
Second, our brief showed that waiting periods for firearm purchases do not fall within any of Heller‘s “presumptively lawful” categories of regulations. Indeed, Heller‘s list of “presumptively lawful” measures are consistent with the Second Amendment, and relate to exclusions of certain classes of persons (such as felons), who are not part of “the People” who the Second Amendment protects. The waiting period does exactly the opposite, keeping lawful buyers from taking possession of their lawful firearms, purportedly to protect public safety.
Our brief noted that “public safety” has always been the justification of tyrants to disarm the populace, all the way back to the 1689 English Bill of Rights, which granted the right to arms only to Protestants, and George III, who disarmed the inhabitants of those areas who did not support the crown. Here, California follows the same trend, exempting various favored classes of law enforcement personnel who are “loyal to the Crown.” But, as the Supreme Court has said, the Second Amendment belongs to “all Americans,” not just to friends of the government.
Thirdly, our brief argued that, while the district court below correctly determined that the waiting period is unconstitutional, it did so for the wrong reasons. The district court based its decision not on the text and context of the Second Amendment, but on the same type of judicially-devised interest balancing test that the Supreme Court rejected in Heller.
Like so many who challenge gun laws, the Plaintiffs in this case no doubt desired to appear reasonable to the court. To do so, the Plaintiffs made concessions on matters that were not at issue in their case. First, even though the case did not involve California’s background check, the Plaintiffs conceded that background checks are an appropriate tool to keep guns out of the hands of disqualified persons – as if the Second Amendment says “shall not be infringed after a background check is performed.” Second, the Plaintiffs conceded that waiting periods are perfectly fine for others, but not for Plaintiffs – as if the Second Amendment states “the right to keep and bear arms after waiting 10 days.”
Lastly, our brief criticized the district court’s opinion for not basing its decision on the text and context of the Second Amendment. Indeed, the district court admitted up-front that California’s waiting period “infringes” Second Amendment rights. That should have been the end of the discussion. However, the district court continued, using a balancing test to determine whether to permit the “infringement” of a right that “shall not be infringed.” In the end, the court decided that the infringement was too burdensome, while the alleged public safety interests at issue were not well served. Of course, using such a subjective test, the case easily could have come out another way in another court (or on review by the 9th Circuit en banc), based on how the balance of interests seemed to the sensibilities of a different judge. The Second Amendment is not so complicated. California’s waiting period is unconstitutional simply because it infringes “the right of the People to keep and bear arms” – not because it seemed too severe a burden to a federal judge.
Our brief was filed on behalf of Gun Owners of America, Inc., the Gun Owners Foundation, the U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., the Institute on the Constitution, and the Conservative Legal Defense and Education Fund.
Copyright © 2015 William J. Olson, P.C. All rights reserved.
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