Wednesday, December 14, 2016

9th Circuit Reverses District Court Victory In Sylvester v. Harris

A three judge panel of the 9th Circuit Court of Appeals reversed the District Court in the case of Sylvester et al v. Harris. The decision released today found that the 10-day waiting period for California holders of a license to carry, holders of a California Certificate of Eligibility, or have firearms registered with the State of California was presumptively constitutional under intermediate scrutiny. This reversed the decision by Judge Anthony W. Ishii of the US District Court for the Eastern District of California who had found in 2014 that this waiting period contravened the Second Amendment.

The 9th Circuit's opinion written by Judge Mary Schroeder, a Carter appointee, has some real gems in it. Referring to the District Court's opinion she wrote:
The district court dismissed the State’s argument. The court thereby essentially discounted the dangers inherent in the proliferation of guns, including guns suitable only for use to injure others, such as Saturday night specials or large capacity guns that have been used in mass shootings.
Not only did Judge Schroeder use a term that has racist origins - Saturday night specials - but she asserts that firearms with "large capacity" are only suitable for killing or injuring others. No bias there, is there?

Judge Schroeder then continues later in her opinion to assert that firearms buyers in the 18th and 19th centuries had to wait a long period of time to receive their firearms. Thus, when examined in that context, a waiting period of (hopefully only) 10 days was no big deal.
There is, moreover, nothing new in having to wait for the delivery of a weapon. Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately upon deciding to purchase one. As a purely practical matter, delivery took time. Our 18th and 19th century forebears knew nothing about electronic transmissions. Delays of a week or more were not the product of governmental regulations, but such delays had to be routinely accepted as part of doing business.

It therefore cannot be said that the regulation places a substantial burden on a Second Amendment right. Intermediate scrutiny is appropriate.
As the announcer in the infomercial says, "But wait! There's More".
The district court reasoned that a cooling-off period would not have any deterrent effect on crimes committed by subsequent purchasers, because if they wanted to commit an impulsive act of violence, they already had the means to do so. This assumes that all subsequent purchasers who wish to purchase a weapon for criminal purposes already have an operable weapon suitable to do the job.

The district court’s assumption is not warranted. An individual who already owns a hunting rifle, for example, may want to purchase a larger capacity weapon that will do more damage when fired into a crowd. A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home identified in Heller. 554 U.S. at 628.
Obviously Judge Schroeder is ignorant of the damage that could be done by an ordinary shotgun like the Remington 870 when fired into a crowd. If you added something like the Paradigm Gator Shotgun Spreader choke and a shoulder bag full of #4 buck then you would have real carnage.

Chief Judge Sidney Thomas, a Clinton appointee and the architect of the en banc hearing in the Perutta case, wrote a concurring opinion agreeing with the decision but saying that waiting periods were presumptively lawful. Obama appointee Judge Jacqueline H. Nguyen joined in unanimous decision.

Brandon Combs, executive director of the Calguns Foundation, released a strongly worded statement on the decision. Combs, in addition to his position with Calguns, is one of the plaintiffs in the case.
SAN FRANCISCO (December 14, 2016) – In response to today’s Ninth Circuit Court of Appeals decision overturning the trial court in the case of Jeff Silvester, et al., v. Attorney General Kamala Harris, a federal Second Amendment civil rights lawsuit challenging the State of California’s 10-day waiting period laws, Brandon Combs, executive director of The Calguns Foundation, has released the following statement:

“Today, this panel of the Ninth Circuit Court of Appeals has proven to be more interested in their own policy preferences than the Constitution and the text, history, and tradition of the Second Amendment.

In its decision, the Court bizarrely ruled that even a person legally carrying a concealed weapon as he buys another gun at retail needs to be 'cooled off' for 10 days before taking possession of another constitutionally-protected firearm.

That holding is not even rational, much less should it survive any kind of heightened constitutional scrutiny compelled by the Supreme Court’s Heller and McDonald opinions.

After undertaking significant discovery, depositions, and a three-day bench trial, Federal District Court Judge Anthony W. Ishii issued his Findings of Fact and Conclusions of Law, which held the State of California’s 10-day waiting period laws to be irrational and unconstitutional as applied to three categories of gun purchasers.

Today’s opinion is but one of a growing string of wrongly-decided Second Amendment cases and serves to underscore that, if the fundamental, individual, Second Amendment right to keep and bear arms is to survive as something more than a second-class right, the Supreme Court will need to say so once more.

This fight is far from over. Our legal team is hard at work exploring all legal options to advance this case and the Second Amendment right to keep and bear arms.”

Silvester v. Harris is supported by civil rights organizations The Calguns Foundation (Sacramento, CA) and Second Amendment Foundation (Bellevue, WA).
Decisions like this by the 9th Circuit illustrate just how much the lower courts have blatantly ignored the Supreme Court's decisions in both Heller and McDonald. It also illustrates the need for a originalist in the mold of Justice Scalia to fill his shoes on the Supreme Court. Perhaps when we get one, two, or three new justices on the Supreme Court appointed by a President Trump then nonsense decisions like this one out of the 9th Circuit will be slapped down in 6-3 or 7-2 decisions.


  1. I'm shaking my head at 9th Circuit's malpractice. Again. Do these judges have a different printing of common law and Constitutional law that the rest of the US?

  2. I hear the sound of Alan Gura warming up.

  3. He's likely warming up to run as far away from this case as he can. This was a craptastic case to start, basically boiling down to the fact that an existing gun owner wanted more guns without having to wait, and not really proving that the wait for a 2nd or 3rd gun in any way impacted the core right IAW Heller/McDonald. End result is the legal support for waiting periods here in CA is now even stronger and intermediate scrutiny as applied to the 2A is watered down further. With an appeal somewhat limited by the existing case filings, there's not much Gura can do to breath life into it I don't think. Not to mention that the Heller 5 are now the Heller 4, and we've no idea who will take Scalia's place. Think how much fun a loss would be at USSC, 10 day mandatory wait for all!

    1. I disagree about it being a craptastic case. Calguns, SAF, and their attorneys took a very narrow selection of gun owners who had already proven that they were "good guys and gals". The fact that they won at the District Court was amazing in and of itself. When the case was filed, Justice Scalia was very much alive and kicking. An en banc appeal could drag things out long enough that we will know who the new justice will be and how he or she might rule on 2A matters.

    2. When the case was filed, Justice Scalia was very much alive and kicking.

      Doesn't matter, for that court signed off on every lower court's blatant ignoring of Heller and McDonald, even the San Francisco "lock up your safety" law which touched upon Heller's proscription of D.C.'s extreme laws on this (you might not count the pepper spray I think it was case, don't remember the court makeup, but it only returned the case to the lower courts).

      We assume someone turned, and we're not betting on Kennedy, Roberts is a more likely candidate. It's impossible for me to see that court reversing this decision, although after Trump gets to replace 2 Supremes we might have a chance.

  4. I love how nimbly the anti-gunners hop back and forth between centuries. Delivery of a gun took longer in the 18th Century, so it's OK today. Alright, I'll play. In the 18th Century, there was also no such thing as a damn background check, let's get rid of those. No permit to carry in the 1700s, or FFLs...get rid of 'em! I could go on...