California’s 10-Day Waiting Period for Guns Upheld

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By Bernie Pazanowski

California’s requirement that gun purchasers wait 10 days before obtaining their firearms doesn’t violate the Second Amendment as applied to purchasers who already own guns, the U.S. Court of Appeals for the Ninth Circuit held Dec. 14 ( Silvester v. Harris , 9th Cir., No. 14-16840, 12/14/16 ).

The law passes intermediate scrutiny because it’s a “reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase,” the court said in an opinion by Judge Mary M. Schroeder.

The court's use of intermediate scrutiny is important because that's the analysis that allows states to adopt gun regulations to advance public safety, Deepak Gupta, of Gupta Wessler PLLC, Washington, told Bloomberg BNA Dec. 14.

Had the court applied strict scrutiny, it would have taken public safety out of the conversation, he said.

Gupta filed an amicus brief in the case on behalf of Everytown for Gun Safety, which describes itself as a “movement of Americans working together to end gun violence and build safer communities.”

Everytown was founded by former New York City Mayor Michael Bloomberg, founder and majority owner of Bloomberg LP, parent of Bloomberg BNA.

Important Concurrence

Chief Judge Sidney R. Thomas wrote a concurring opinion arguing that California’s waiting period law is presumptively valid under District of Columbia v. Heller, 554 U.S. 570 (2008), as a law “imposing conditions and qualifications on the commercial sale of arms.”

Thomas's opinion relied heavily on Everytown's amicus brief, Gupta said. Thomas's opinions in Second Amendment cases are influential and courts other courts may follow his reasoning in the future, he added.

Gupta also noted that in Heller, the U.S. Supreme Court said that the scope of the Second Amendment requires looking at the historical understanding of the right to bear arms. Silvester makes clear that analysis isn't limited to colonial times and includes 20th century history, he said.

The opinion shows that Heller is consistent with common sense gun regulation, Gupta said.

An attorney who represents gun rights advocates didn't respond to Bloomberg BNA's request for comments on the case.

Passing Intermediate Scrutiny

The plaintiffs’ class action suit argued that the full 10-day period shouldn’t apply to purchasers who are already in the state’s Automated Firearms System, which is used by law enforcement to identify individuals who may own guns, already have conceal-carry permits or already possess a state “certificate of eligibility” to own guns.

Applying the two-step process that has evolved for gun control laws under Heller, the Ninth Circuit held that the law was valid.

California’s WPL falls within the scope of the Second Amendment, which protects at least the right of self defense in the home, the court said.

But the law is constitutional because it reasonably fits the state’s important interest in reducing gun crime, it said.

“California has had some kind of waiting period statute for firearm purchases continuously since 1923,” the court said.

Though the amount of time a person has to wait to get their firearm has fluctuated, “the legislative purpose has always been to allow enough time for background checks,” and, more recently, to prevent “the impulsive use of handguns,” it said.

The WPL provides a cooling-off period especially for handgun sales, which may prevent impulsive acts of gun violence or self harm, the court said. This remains true even if the person already owns guns—they may not have a weapon suitable to the crime they wish to commit and the waiting period can give them time to rethink their plans, it said.

Judge Jacqueline H. Nguyen joined the opinion.

The California Attorney General’s office argued for the state. Benbrook Law Group PC argued for the plaintiffs.

To contact the reporter on this story: Bernie Pazanowski in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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