Top 25 Interesting Items From The Waiting Period Case

Top 25 Interesting Items From The Waiting Period Case

UPDATE JANUARY 12, 2015:  More Waiting Ahead!!!!! Today the Ninth Circuit issued an order staying the District Court’s ruling that struck the 10 day waiting period for most firearm purchasers. The Ninth Circuit’s ruling was brief: “Appellant’s motion to stay the district court’s August 25, 2014 order pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987).” So, for now, we must wait to see if we must wait.


Earlier this week, United States District Court Judge Ishii issued a landmark ruling relating to waiting periods for the delivery of firearms purchased by law abiding citizens.  The Court found that the 10-day waiting periods of Penal Code sections 26815(a) and 27540 violate the Second Amendment as applied to certain groups.

Specifically, The Calguns Foundation filed a federal lawsuit on December 23, 2012, against the California Department of Justice and Attorney General Kamala Harris challenging the policy of requiring gun owners to wait at least 10 days before taking possession of an additional firearm. The case is entitled Jeff Silvester et. al. vs. Kamala Harris, et. al.  The Calguns Foundation was joined in the lawsuit, filed at the District of California Federal District Court in Fresno, by the Second Amendment Foundation and three individual plaintiffs.  In sum, the lawsuit claimed that the State has absolutely no reason to delay the exercise of the Second Amendment rights of California gun owners who already possess firearms when they buy another one.

In his 56 page ruling, the Court made a number of substantial findings of facts and conclusions of law.  The entire Findings of Fact and Conclusions of Law can be found here.  Here we break down the top 25 items of interest from Judge Ishii’s Factual Findings and Conclusions of Law:

1.  The 10-day waiting period violates the Second Amendment as applied to those individuals who pass the State’s background check and are in lawful possession of a firearm registered in the applicant’s name within the Automated Firearm System.

2.  The 10 day waiting period violates the Second Amendment as applied to those individuals who pass the State’s background check and who possess a valid California license to carry firearms.

3. The 10 day waiting period violates the Second Amendment as applied to those individuals who successfully pass the State’s background check and who possess both a valid Certificate of eligibility and a firearm that is registered in the applicant’s name within the Automated Firearm System.

4.  The Department of Justice must modify their procedures as necessary to eliminate the waiting period for these specified groups.

5. The elimination of the waiting period for these groups does not go into effect until February 21, 2015. Can’t wait? Check out this out.

6.  The Department of Justice was unable to identify a single law at or near 1791 or 1868 that imposed a waiting period of any duration between the time of purchase and the time of possession of a firearm, or that address government imposed waiting periods or the perception of government imposed waiting periods in relation to the Second Amendment.

7. Only 10 states currently impose a waiting period between the time of purchase and the time of delivery of a firearm.  Three states and the District of Columbia have waiting period laws for the purchase of all firearms: California (10 days), District of Columbia (10 Days), Illinois (3 days for pistols, 1 day for long guns), and Rhode Island (7 days).  Four states have waiting periods for only handguns: Florida (3 days), Hawaii (14 days), Washington (up to 5 days from the time of purchase for the sheriff to complete a background check), and Wisconsin (2 days).  Connecticut has a waiting period for long guns that is tied to an authorization to purchase.  Minnesota and Maryland have a waiting period for the purchase of handguns and assault rifles (7 days).  There is no federal waiting period.

8.  The California waiting period has evolved since its passage in 1923 form restricting transfers of handguns only on the same day, to  3 days in 1955, to 5 days in 1965, to 15 days in 1975, to 15 days for all firearms in 1991, and back down to a 10 day waiting period for all firearms in 1996 – all for the purported reason of providing law enforcement sufficient time to perform a background check.

9. Prior to 1996, there was no legislative history provided that indicated the reason for the waiting period was to provide a cooling off period, though one case was referenced as indicating that the there was testimony in 1964 that a cooling off period was a partial reason for the delays. The court went on to hold that “there is little evidence to suggest that the waiting periods were modified for the purposes of expanding or retracting a cooling off period.”

10.  Approximately 20 percent of firearm applicants are auto-approved.

11.  Because of the number of daily firearm purchase applications received and the backlog, sometimes the Department of Justice will not begin to review a queued firearms application until day 8 or 9 of the 10 day waiting period.

12.  The Department of Justice databases may not have the most up-to-date information because reporting agencies fail to or delay submission of  information to the Department of Justice, or because records are lost, purged, or never reported.

13.   “One cannot exercise the right to keep and bear arms without actually possessing a firearm.”

14.  The Department of Justices failed to establish that the waiting period, which began in 1921, was sufficiently “long standing” to be entitled to presumption of lawfulness.  The court focused on 1791 and 1868 as the key dates for a law being deemed “long standing” enough to be entitled to the presumption of lawfulness.

15.  The Court did not decide which level of scrutiny applied specifically, but applied Intermediate Scrutiny as the minimum, noting that if the waiting period laws do not pass intermediate scrutiny, they will not pass strict scrutiny.

16.  The court ruled that public safety and keeping firearms out of the hands of prohibited individuals are important interests.

17.  Background checks are not a reasonable fit for the imposition of a delay after the background check has been processed.

18.  A cooling off period is not an reasonable fit for the imposition of a delay.

19.  If an individual possesses a firearm and then passes a background check, this indicates a history of responsible gun ownership.

20.  A waiting period of at least 1 day will occur naturally because analysts must obtain and review various information.

21.  investigating straw purchases is not a reasonable fit for the imposition of the delay.

22.  Imposing a waiting period on an individual that has met the requirements for obtaining a license to carry, whom already demonstrated that he or she can be expected and trusted to carry a concealed handgun in public for 2 years, would be speculative and its effects appear remote at best.

23. “The Second Amendment applies to ‘arms’ and its language does not limit its full protections to a single firearm.  Some firearms are better suited for particular lawful purposes than others.”

24.  The Court cited Peruta v. County of San Diego 11 times in the opinion.

25. Nothing in the ruling will be construed as interfering with the Department of Justice’s ability to delay a transfer or sale of a firearm when further investigation is required to confirm that a buyer or transferee is not prohibited by state or federal law from possessing firearms.

What are your thoughts on the recent ruling?