California's Gun Purchase Waiting Period: a History of the Future

• Publication year: 2023
• Author: Written by Bill Slomanson

CALIFORNIA'S GUN PURCHASE WAITING PERIOD: A HISTORY OF THE FUTURE

Written by Bill Slomanson^*

DÉJÀ VU

California's gun purchase waiting period was first litigated in 2011. That case migrated from a Fresno federal trial court to the U.S. Supreme Court. (Silvester v. Becerra (2018) 138 S.Ct. 945.) A fresh attack was filed in San Diego's federal district court in May 2023. (Richards v. Bonta (S.D.Cal., May 1, 2023, No. 3:23-CV-00793) [hereafter Richards].)

The Fresno trial court overturned the state's waiting period. (Silvester v. Harris (E.D.Cal. 2014) 41 F.Supp.3d 927.) The Ninth Circuit reversed, keeping the waiting period in place. (Silvester v. Harris (9th Cir. 2016) 843 F.3d 816.) The Supreme Court denied certiorari. As the dissent from that denial lamented, "the Court of Appeals [which] upheld California's 10-day waiting period for firearms based solely on its own 'common sense' ... is symptomatic of the [nation's] lower courts' general failure to afford the Second Amendment the respect due an enumerated constitutional right." (Silvester v. Becerra, supra, 138 S.Ct. at p. 945 (dis. opn. of Thomas, J., italics added.)

Today's rehash is the Richards's declaratory injunctive relief class action. It was filed by several San Diego County residents, two gun stores, a local Second Amendment political action committee, and several gun rights groups. California Attorney General Rob Bonta is the lead defendant. The governmental defendants have allegedly blocked the plaintiffs' right to keep and bear arms. The representative individual claim is that: "A right delayed is a right denied . by [our] suffering at least a 10-day ban on the possession of that [purchased] arm — even when the State has confirmed, often within minutes of the application, that the person is eligible to acquire firearms. Then, if the Defendants affirmatively allow the transfer, the buyer must go back to the dealership to take possession of the firearm no sooner than 10 days after submitting the application." (Richards, supra, at p. 1, ¶¶ 1-2.)

The plaintiffs further displayed their angst via an earlier writ proceeding. It found that the defendants' practice of delaying firearms transactions beyond the statutorily authorized period violates state law. (Campos v. Bonta (San Diego County Super. Ct., Aug. 8, 2022, No. 37-2020-0030178).) An assessment of Richards, and its potential impact, directly implicates the U.S. Supreme Court's evolving yardstick for measuring the reach of the Second Amendment.

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MUTATING LEGAL REGIME

The gun jurisprudence of the nation's state and federal appellate courts has typically invoked the triple-option means-end scrutiny of gun regulations. Was there: (1) a rational relationship between the challenged law and the alleged deprivation; or (2) would the particular regulation survive intermediate scrutiny; or (3) survive strict scrutiny. While jurists and scholars paid attention to the prevailing scrutiny regime, even more tests were considered. (See Slomanson, Second Amendment: The Dozen Yardsticks for Measuring its Scope (2021) 34 Cal. Litigation J. 37.)

The Supreme Court's block-busting Heller precedent established the constitutional right to keep guns in the home for self-defense. (District of Columbia v. Heller (2008) 554 U.S. 570, 635-636.) The Court therein chiseled away at the then prevailing scrutiny approach. It took the low-level rational-relationship option off the table. Thus: "'rational basis' [test for a gun regulation] could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated [constitutional] right to keep and bear arms." (Heller, supra, at p. 628, fn. 27, italics added.) Heller also "specifically ruled out the intermediate-scrutiny test." (New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111, 2129 (Bruen).)

The Court's 2010 McDonald decision extended Heller to all city, state, and federal legislation. (McDonald v. City of Chicago (2010) 561 U.S. 742, 784-785 ["[u]nder our precedents, if a Bill of Rights guarantee is fundamental ..., that guarantee is fully binding on the States"].) But neither Heller nor McDonald presented a measured template for future legal challenges. Since then, conservative U.S. Supreme Court justices have lamented the court's failure to address their stated need for restructuring Second Amendment analysis. (See Slomanson, Second Amendment: Supreme Court's Constitutional Orphan (June 17, 2020) Daily Journal 1.)

"Bruen sounded the death knell of the entire level-of-scrutiny yardstick: Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. [Now i]nstead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

. . .

"[T]he standard for applying the Second Amendment is as follows: When the Second Amendment's plain text covers an individual's [lawful] conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's...