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Why The Supreme Court Should Step Into This California Gun Waiting Period Case


After the Supreme Court held that the Second Amendment protects an individual’s right to bear arms in District of Columbia v. Heller (2008), it was up to circuit courts to explore the metes and bounds of that right and develop a consensus. Reality, though, couldn’t be further from this ideal.

From the Ninth Circuit recently deciding citizens have no constitutional right to sell guns, to the Second Circuit deciding the courts only need to scrutinize laws if they “severely” burden our rights, one thing is clear: we need help. The Supreme Court has been gun-shy for the past few years, but one case, Silvester v. Becerra, seems to have attracted their interest. Silvester may finally help move the courts toward competent Second Amendment decisions.

The California code requires most firearm purchasers to wait 10 days before they can bring their gun home, regardless of whether they already own one, or whether they pass their background check sooner. Jeff Silvester, a California resident who already owned firearms, easily passed a background check in less than 10 days, and wanted to buy more firearms. Because there was no reason he should be arbitrarily forced to wait after passing a background check, he challenged the law.

Silvester won in the Eastern District of California because the only reason the state could muster for forcing a gun owner to wait on receiving a subsequent gun after having passed a background check was that it would provide a “cooling off” period. Of course, the state could not prove how this period might keep someone from using guns he already had.

Then the Ninth Circuit Did Its Thing

Because the Second Amendment protects the right to bear all arms in common lawful use, any law that limits that right has to pass certain standards to be constitutionally permissible. The law must be addressed at a specific harm, and must not encompass more protected conduct than needed. The district court was not convinced by California’s fuzzy logic, and found applying an arbitrary waiting period to someone who already owns guns to be unconstitutional. Never to take the thought of their residents regaining constitutional rights laying down, California appealed to the frequently reversed, heavily politicized Ninth Circuit.

The Ninth Circuit ignored that the burden was on California to prove its case—and the state had no evidence the wait period would improve public safety when the purchaser already owns other arms. Instead, the Ninth Circuit speculated as to what kind of harms the law might conceivably prevent, not any important interest it actually serves. In the face of a decision that would allow California to arbitrarily infringe their Second Amendment rights for almost any reason, the challengers turned to the Supreme Court.

Because of the Supreme Court’s demonstrated hesitance to hearing Second Amendment cases, California didn’t even file a brief in response to Silvester’s petition for certiorari. This is common, as states have figured out that the Supreme Court desperately avoids decisions that would upset the nation’s delicate tapestry of gun laws. But Silvester’s case piqued the court’s interest, as the Supreme Court gave California an October 30 deadline to get off their butts and file a brief in response to Silvester. The high court only tends to do this when they are interested in a case, which is big news. Why this case, though? The answer might be simple: the state may have simply taken too little.

The Case Could Be Small Enough for Attention

Silvester’s case is quite narrow, covering only the application of an arbitrary waiting period to people who already own guns. The Supreme Court’s input, then, would not upset our national mélange of gun laws. Instead, it could help enable lower courts to finally move forward in competently developing Second Amendment jurisprudence.

With the court having avoided questions of “assault weapon” bans, and various concealed-carry cases, could it be that California’s fatal flaw was not stepping hard enough on the Second Amendment? In any event, the case has garnered attention from within and without the high court. It was the SCOTUSBlog’s petition of the day, and got the attention of the Cato Institute, which filed a brief in support of certiorari.

Because the case is small, the facts straightforward, the error clear, and the issue so constitutionally significant, the Supreme Court should step in and remind the Ninth Circuit what was said in McDonald v. Chicago (2010): the Second Amendment is not a “second-class” right for the circuit courts to “single out for special—and specially unfavorable—treatment.”