Monday, December 9, 2013

California Waiting Period Fails To Meet Constitutional Muster

Senior Federal District Court Judge Anthony W. Ishii denied Attorney General Kamala Harris' Motion for Summary Judgment today and indicated that California's 10-day waiting period probably is unconstitutional when viewed under either intermediate or strict scrutiny.

The CalGuns Foundation which along with the Second Amendment Foundation brought the case challenging the 10-day waiting period is extremely pleased by this development as noted in their press release below.

I'll have more after I've had to read the ruling. Sebastian at Shall Not Be Issued has some comments on the case here. Likewise, Professor Eugene Volokh has his analysis of the decision here.

From CalGuns:
Federal Judge Says California Attorney General Kamala Harris Wrong on Gun Control Laws

Court denies Harris’ arguments and agrees with gun rights group The Calguns Foundation, says state’s firearm waiting period laws fail to meet Constitutional muster

ROSEVILLE, CA -- In a rejection of California Attorney General Kamala Harris’ stance on the rights of law-abiding gun owners, Senior Federal District Court Judge Anthony W. Ishii denied Harris’ motion for summary judgement today in a federal civil rights lawsuit filed by The Calguns Foundation, indicating that California’s 10-day “waiting period” gun laws are likely unconstitutional.

“The fact that a federal judge saw these laws for what they are -- baseless restraints on the exercise of a fundamental civil right -- is monumental,” explained Gene Hoffman, Chairman of The Calguns Foundation. “California’s waiting period laws for those who own guns is not Constitutional and this order really underlines the point.”

In his order, Judge Ishii said that Harris has “not presented sufficient evidence to show that the [10-day waiting period laws] passes either intermediate or strict scrutiny.”

About the laws being challenged in the case, named plaintiff Jeff Silvester of Hanford, California, said, “I have a license to carry a loaded firearm across the State.It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”

“This is certainly an exciting development in Second Amendment case law,” noted Brandon Combs, an individual plaintiff in the case and the Executive Director of The Calguns Foundation. “If our Constitution means what it says, then California’s gun waiting period laws have to be overturned and law-abiding people must be allowed to exercise their rights without irrational infringements.”

Regardless of the final decision at the district court, the case is virtually certain to end up at the Ninth Circuit Court of Appeals, and possibly even the United States Supreme Court.

“Cases like this one will define the limits of government regulations on firearms and Second Amendment rights,” said Combs. “We look forward to making sure laws like California’s waiting period are properly scrutinized by the courts.”

Judge Ishii was appointed to the Federal District Court for the Eastern District of California by President Bill Clinton in 1997.

A full copy of the Court’s December 9, 2013, order may be viewed at

The press release announcing the lawsuit and case docket may be viewed at

UPDATE: Here is the correct link to the Court's Dec. 9th order denying the motion for summary judgment.


  1. That's good news for the CA folks, and if it goes to SCOTUS, this 'might' be good for all nationwide that suffer under those restrictions.

  2. With respect, the judge did not say that the law was unconstitutional. That was not the question answered in this ruling.

    The question presented was if the state could just bypass the whole lawsuit and declare victory today. The judge simply said they have to continue the suit.

    In technical terms, the state filed for Summary Judgement and claimed that the law does not implicate the Second Amendment (I am paraphrasing). The plaintiffs disagreed. The rules the judge follow here are pretty clear: the court must evaluate the state's motion by assuming that the plaintiffs arguments are indeed factually and legally correct. The big thing here is that the court does not evaluate any of the constitutional claims made by the plaintiffs - it just takes them at face value (within reason). So with that in hand, the judge then decides whether - assuming the plaintiffs are correct - the state would "win" even if the plaintiff's view of the law were correct. In this case, the state failed to make a showing that their law would survive rational basis scrutiny (what the state proposed) or that it would guaranteed to survive intermediate scrutiny (in the alternative). Again...assuming the plaintiffs are correct in their view on the constitutional issues.

    The big take-away here is that the judge most assuredly did not rule on any of the constitutional questions presented to the court. The court did not say that the Second Amendment applied to the right the way we want it to be applied. The judge simply assumed (which is the the correct approach for an MSJ) and then ruled.

    The real meat is in the next few months as the actual questions get briefed, pondered and then ruled on. It is entirely possible (and consistent with what we have seen nationwide) that this judge comes back and does the old "2A Two-Step" and declares the law to be outside the "core" of the Second Amendment and hence subject to a level of intermediate scrutiny that they state can meet by merely screaming "public safety".

    The only thing "won" here is the right to keep fighting. This was nothing more than the prelude to the real fight.

    We need to support CalGuns so the real fight can go on.