Late Friday News No. 1 - From Calguns Foundation

The Calguns Foundation sent out an update on their appeal for certiorari to the US Supreme Court regarding California's 10-day waiting period on Friday. Silvester et al v. Becerra challenges the 10-day waiting period for those individual who either holds a California issued carry permit or is an existing gun owner who holds a California certificate of eligibility. This case was a win at the District Court level but the 9th Circuit Court of Appeals overturned that decision. They bizarrely held that even existing firearms owners need a 10-day cooling off period.

From Calguns:

Gun Rights Lawsuit Heating Up: California Ordered to Respond, Multiple Briefs Filed in Support of 10-Day Waiting Period Petitioners

WASHINGTON, D.C. (October 27, 2017) – A Second Amendment lawsuit out of California is drawing attention at the Supreme Court and support from multiple groups, said gun rights group The Calguns Foundation, which joined Second Amendment Foundation and two individuals on a petition in September seeking the Court’s review of a Ninth Circuit ruling that upheld the state’s 10-day waiting period laws when they are enforced against law-abiding gun owners after they pass a rigorous background check.

Last month, the respondent California Attorney General Xavier Becerra waived his right to reply to the petition. But on September 29 the Supreme Court ordered the State to reply; on October 24, the Court granted the State of California an extension of time to file that reply, making the new deadline December 1. Adding support for the case, multiple briefs have been filed in support of the petitioners, encouraging the Supreme Court to grant review and overturn the Ninth Circuit’s ruling.

In a brief authored by preeminent constitutional scholars Ilya Shapiro and Trevor Burrus, the Washington, D.C.-based think tank Cato Institute presented a strong case for the Court to grant certiorari.  The brief argues, among other things, that intermediate scrutiny “means something different in almost every circuit [court of appeal] when applied to the Second Amendment” and that the Ninth Circuit “abused petitioners’ fundamental rights by misapplying intermediate scrutiny.”

And in another brief, former California Deputy Attorney General Raymond M. DiGuiseppe argued on behalf of a coalition of Second Amendment advocacy groups—including Firearms Policy Coalition, Firearms Policy Foundation, Gun Owners of California, and Madison Society Foundation—that Supreme Court review is necessary in this case “to reestablish the rule of law and halt the trend of judicial obstructionism” that is “jeopardizing” the constitutional protections of the Second Amendment. “This is not the first time the Ninth Circuit has played ‘fast and loose’ with the Court’s Second Amendment jurisprudence to fend off constitutional claims – nor will it be the last if this Court does not step in,” the brief said.

Attorneys Douglas A. Applegate and George M. Lee of the San Francisco-based law firm Seiler Epstein Ziegler & Applegate LLP filed a brief for the Crime Prevention Research Center, a research and education organization led by the renowned economist Dr. John Lott, arguing that “the standards applied by the lower courts vary widely” and that “the Ninth Circuit reversed the evidentiary findings of the trial court and supplanted the evidence that the trial court received and weighed with its own non-empirical views of what it thought was reasonable.”

“We are pleased that other groups have recognized the serious flaws in the Ninth Circuit’s approach,” explained Erik S. Jaffe, the petitioners’ Supreme Court counsel. “The results-driven analysis in the opinion below not only does violence to the Second Amendment, but does violence to the rule of law and respect for the courts. We are hopeful that the Justices, whatever their views on the scope of the Second Amendment, will recognize that the decision below is well out of bounds of any reasonable reading of Supreme Court precedent or standards for intermediate scrutiny and will take the necessary steps to ensure the fair administration of justice in Second Amendment cases.”

In 2014, Federal District Court Judge Anthony W. Ishii—nominated to the bench by then-President Clinton—held that California’s waiting period laws were unconstitutional as applied to three categories of gun purchasers after undertaking significant discovery, depositions, and a three-day bench trial.

But in 2016, the United States Court of Appeals for the Ninth Circuit bizarrely ruled that even a person legally carrying a concealed handgun as he buys another gun at retail, and who passes a further background check, needs to be “cooled off” for another 10 days before exercising his Second Amendment rights and taking possession of a constitutionally-protected firearm.

Brandon Combs, an individual plaintiff in the case as well as the executive director of institutional plaintiff The Calguns Foundation, said that the briefs made excellent arguments and further supported the petition for review. “The Supreme Court has everything that it needs in a case with an excellent trial record teed up here to save the Second Amendment from hostile lower courts.”

“We are grateful to these amici organizations and their counsel for their support of this case and standing up for constitutional principles,” concluded Combs. 

A copy of the Silvester petition to the Supreme Court and the amicus briefs can be viewed or downloaded at https://www.calgunsfoundation.org/silvester.