Global Courant 2023-05-03 17:00:36
Gun rights advocates filed a federal lawsuit this week against a California law that imposes a 10-day waiting period on most firearm purchases.
The law, which requires people to wait out the prescribed “cooling off period” even if they’ve passed a more direct background check, is designed in part to deter people from rushing to harm themselves or others with newly purchased guns during periods of sudden distress. or anger.
Gun control advocates and state officials say the law reduces gun violence, including suicides, and has previously been enforced despite legal challenges — including by the U.S. Supreme Court, which declined to appeal a lower court decision in 2018. uphold.
However, something has changed since the Supreme Court ruled last year in New York State Rifle & Pistol Assn. versus Bruen – that restrictions on firearms violate the 2nd Amendment if they are not deeply rooted in the nation’s history or analogous to some historical rule.
According to the San Diego gun owners and advocacy groups suing the state, the Supreme Court’s 2018 decision to enforce the waiting period law was “repealed” or overturned by the more recent Bruen decision, and therefore the law is unconstitutional according to newer historical court standard.
The plaintiffs allege that enforcement of the law “dissuades faithful people from possessing lawfully obtained firearms for immediate self-defense and other lawful purposes — even after (state officials) know that the individual is eligible to exercise their fundamental, constitutionally protected right to guns.” keep and carry arms.”
“A right deferred,” they reason, “is a right denied.”
The California Atty office. General Rob Bonta said it was reviewing the lawsuit Tuesday but could not comment further. Bonta is the main defendant in the lawsuit.
According to legal experts, the revived challenge reflects how vastly the legal landscape around gun laws has changed since President Trump shifted the Supreme Court to the right and the court delivered its Bruen decision.
It also reflects increased confidence among gun rights advocates that the Supreme Court is ready and willing to overturn more gun laws, the experts said — even those it may have allowed in the past.
Jake Charles, an associate professor at the Pepperdine Caruso School of Law and an expert in firearms law, said he was “surprised it took until May of this year” for the waiting time law to be challenged again under Bruen — in part because it is clearly fragile.
Prior to Bruen, federal courts across the country assessed gun laws not only through a historical lens, but also by assessing whether they served a considered purpose of modern government.
When the California-based U.S. 9th Circuit Court of Appeals upheld California’s 10-day waiting period law in 2016, it did so based on such a review. Circuit Judge Mary Schroeder wrote for the court that the 10-day waiting period was “a reasonable safety measure” and therefore constitutional.
“We don’t have to decide whether the ordinance has been around long enough to be considered legal,” Schroeder wrote.
Now, however, Bruen has changed the relevant legal analysis and Schroeder’s reasoning is now irrelevant, the plaintiffs argue.
The law should be viewed solely through historical analysis, which it does not survive, they argue, because waiting period laws were not enacted in the country until 1923 — making them too recent to be considered part of the national tradition under Bruen.
“California’s waiting time laws and their enforcement by (state officials) are not analogous to any constitutionally relevant history and tradition of regulating firearms,” the plaintiffs argue. “So the waiting period laws should be declared unconstitutional and enforced.”
Gun law experts said it’s a strong argument.
“Now with the Bruen decision, the central question will be whether the waiting period is consistent with historical tradition, and that looks like an uphill battle,” said Andrew Willinger, executive director of the Duke Center for Firearms Law.
“If you apply Bruen very strictly and need a very close analog, then it seems they have a very strong case,” Charles said.
Lawyers for California can still argue that the law is sufficiently similar to some landmark law that did not establish a waiting period for purchased guns, but otherwise restricted their purchase. The state has already argued that other modern gun laws under challenge — including the ban on assault weapons and high-capacity magazines — are similar enough to other historic laws to survive Bruen’s test, even if they’re not exactly the same.
Charles said courts across the country have interpreted what constitutes an “analog” law differently for Bruen’s purposes, in part because the decision provided “very little guidance on how to do that job.”
In light of that, he said, California judges could anyway judge whether the waiting period law resembles some landmark law enough to be constitutional.
“Lower courts are all over the place on how to do this,” Charles said.
He and Willinger said the state could also argue that the waiting period law is not an offense against gun ownership, but a justifiable regulation for the commercial sale of firearms — which has been allowed in the past by separate precedent from the Supreme Court.
