Volokh:10-Day Gun Waiting Period Potentially Unconstitutional

I am surprised that a Clinton appointee would come to such an obvious conclusion, very hopefull.

So concludes today’s Silvester v. Harris (E.D. Cal. Dec. 9, 2013). The analysis (some paragraph breaks added):

The WPL [the Waiting Period Law] 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 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 [Attorney General] 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.
The next step is to analyze the WPL under either strict or intermediate scrutiny. As indicated above, Harris advances two rationales in defense of the WPL — it provides a “cooling off period” for those who may have an impulse to commit violence and it provides time for California to conduct a background check. It is unnecessary for the Court to determine at this time which scrutiny to apply because, even under the lesser “intermediate scrutiny,” summary judgment is not appropriate.

With respect to the rationale of providing time to perform a background check, Heller indicated that some laws or regulations presumptively do not offend the Second Amendment, including laws that prevent felons and mentally ill persons from possessing firearms. If a state presumptively can constitutionally prohibit certain categories of persons from possessing firearms, then it would seem to follow that a state can also perform some type of “background check” in order to ensure that a disqualified person is not attempting to obtain a firearm.
Indeed, Plaintiffs do not argue that background checks are constitutionally improper, nor do they argue that California should not perform background checks. What Plaintiffs essentially argue is that the 10-day period is arbitrary and/or substantially overbroad, and that an adequate background check can be performed in a significantly shorter period of time. Although Harris has made arguments that support a waiting period in general, Harris has presented insufficient evidence to justify the actual 10-day period.

For example, there is no evidence regarding the nature of the background checks performed, how much time is necessary to perform a background check, or why 10-days are necessary in order to perform a background check. Harris admits that in the past California has had waiting periods that have ranged from 1 to 15 days. However, there is nothing before the Court to suggest that the 10-day period is a “reasonable fit” that is not substantially broader than necessary to determine if an individual is disqualified from owning a firearm. More information is needed. The Court will not grant summary judgment on this issue based on the bare arguments presented.

As for the “cooling down” rationale, Harris has not presented sufficient evidence that the 10-day waiting period is a “reasonable fit.” For example, there is no evidence concerning how the 10-day period was determined for purposes of “cooling off,” any evidence concerning “cooling off” and gun violence in general for those wishing to purchase a firearm, or that the 10-days is not substantially broader than necessary.

Additionally, as applied to individuals who already own a gun, the Court has great difficulty envisioning how the “cooling off” rationale could pass the appropriate level of scrutiny. If an individual already possess a firearm, then nothing about this rationale would prevent that individual from acting on a sudden impulse to commit gun violence with the gun already in his or her possession. The Court will not grant summary judgment on this issue based on the bare arguments presented.

For those interested in such matters, Judge Ishii, the authoring judge, was appointed by President Clinton.
Here’s my thinking on the subject of cooling-off periods, from from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda (UCLA L. Rev., 2009):

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