Friday, February 19, 2016

CA: Oral Arguments Heard on Unconstitutional Waiting Period, Ban on Gun Advertising in Ninth Circuit

On February 9th, 2016, the Ninth Circuit Court of Appeals heard oral arguments for two Second Amendment cases.  They were Jeff Silvester v. Kamala Harris, in which the District Court found that the California statute that required a waiting period for people to purchase a firearm, even though they already owned a gun and had passed a background check, was unconstitutional.

The second case was Tracy Rifle & Pistol LLC. v. Harris, a case where California forbids shops selling guns to advertise handguns with the image of a handgun outside of their store.

That the waiting period ban is unconstitutional seems like simple common sense.  How can there be any significant government interest in forcing a person who has passed a background check, and already has a firearm, to wait an additional 10 days to take possession of the firearm?  Consider that major inconveniences may be entailed by the 10 day wait, and that a right delayed is a right denied.  Here is a summation From
Blanket application of the Golden State’s longstanding waiting period was ruled unconstitutional by a federal judge in August 2014, but Attorney General Kamala Harris has kept it in place while the state appeals the ruling. At issue in Silvester v. Harris, argued last week before the 9th Circuit Court of Appeals in San Francisco, is whether applying the waiting period to already-vetted gun owners serves a valid purpose.

"There is no government public safety interest in a waiting period if you already own a gun and have gone through a background check,” Alan Gottlieb, founder of the Second Amendment Foundation, told “This is clearly only about a right delayed being a right denied.”
 Here is a link for those who wish to listen to the oral argument presented.

Audio file oral argument Jeff Silvester v. Kamala Harris

 The Tracy Rifle & Pistol case argument in favor of the First and Second Amendments is argued by Eugene Volokh.  Volokh is a brilliant lawyer who teaches at UCLA, and whose blog The Volokh Conspiracy, is featured at the Washington Post.

The idea that the State of California should ban advertising because it thinks adult citizens might make bad decisions because of it, is directly in conflict with the First Amendment.  That the purpose of the ban is to chill the exercise of Second Amendment rights is another obvious constitutional violation.  It is hard to see how the State can argue in favor of this, but they try, mostly through obfuscation. From the Volokh  Conspiracy:
Cal. Civil Code § 26820 (which was first enacted 1923, but is still being enforced today) provides,
No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.

That, we argue, violates the First Amendment. The government generally may not ban advertising of lawful products — indeed, of constitutionally protected products — on the grounds that such advertising is offensive, or stimulates consumer interest in such products. We’ll be filing a more detailed legal argument in due course (what I link to is just the Complaint); when that happens, I’ll post it as well.
Here is the link to the audio file of the oral arguments:

 Audio file link to oral argument Tracy Rifle and Pistol LLC v. Kamala Harris

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch


Anonymous said...

It still upsets me that none of these people, groups or organizations will argue the basic point. anyone can read the tenth amendment of the federal constitution. the states have no authority to change the federal constitution. the tenth amendment reinforces the second amendment command of Shall Not Infringe. there is no definition of what arms are. Has anyone ever been killed or assaulted with a claw hammer? do they register every carpenters hammer? No. has anyone ever been killed with a lug wrench. do they register lug wrenches? No. Has anyone ever been killed with a butchers knife? do they register butchers knives? No. What about bows and arrows? David killed Goliath with a sling and a rock do we register slings and rocks? Is every base ball players bat registered? Are venetian blind cords registered? anything can be used as a deadly weapon, even your ball point pen.
Shall not infringe is plain English and a constitutional legal command.

Patrick Shaner said...

Tobacco is a legal product, and the advertising bans are still in effect.