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In a disappointing decision, a district court judge ruled this week that California’s 10-day waiting period requirement for firearm purchases violates the Second Amendment, but only with respect to individuals who already own a gun and who also pass a background check before the 10-day period expires.  The case, Silvester v. Harris, was brought by several pro-gun organizations and individual California citizens who argued that the waiting period was unconstitutional as applied to them.  The court was careful to clarify that this was not a challenge to the 10-day waiting period in general, or to California’s background check requirement for all gun purchases.

In its decision, the court first acknowledged that “public safety and keeping firearms out of the hands of prohibited individuals are important interests.”  However, the court found that the state did not prove a “reasonable fit” between these interests and the 10-day waiting period with respect to individuals who already possess a firearm and pass a background check within 10 days.  The state provided three primary justifications for the waiting period requirement:  improving background checks, providing a cooling off period to reduce impulsive gun violence, and improving gun trafficking investigations.

As to background checks, the court dismissed as “unduly speculative” the state’s argument that a 10-day waiting period allows officials to address disqualifying information that may come to their attention before the period expires.  “Although additional disqualifying information may come to [the state’s attention],” the court wrote, “that can be said of any time-frame, but it 1 day or 60 days.”  With respect to cooling off periods, the court noted that “[t]here is no evidence that a ‘cooling off period,’…prevents impulsive acts of violence by individuals who already possess a firearm.”  In reaching this conclusion, the court discounted the social science evidence presented in support of waiting periods and the state’s argument that an individual may no longer have access to a gun just because it is listed in a database.  Finally, in addressing how the 10-day period may impact gun trafficking investigations, the court admitted that “it might be easier to intercept a weapon prior to delivery” with a 10-day waiting period, but was apparently satisfied that “this only occurs in about 15% of investigations.”

In his order, the judge gave the State of California 180 days to implement procedures that would comply with the decision, including releasing purchased firearms immediately to any individual who both passes a background check and is on record as already owning a firearm.  In reaching his decision, the judge appeared to place an unduly high burden on the state to prove the waiting period’s relationship to gun violence reduction—largely ignoring or discounting evidence that the 10-day waiting period prevents impulsive acts, enhances background checks, and improves investigations into illegal gun trafficking activity.  The state is likely to appeal the decision to the Federal Court of Appeals for the Ninth Circuit, where the Law Center plans to file an amicus brief in support of the waiting period requirement.

For more on the benefit of waiting period laws, see the Law Center’s Waiting Period Policy Summary.  For more on recent amicus briefs we’ve filed in the courts in support of common sense gun regulations, see our Second Amendment Amicus Briefs section.