Silvester v. Harris, No. 14-16840

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Opinion by Judge Schroeder
• Citation: 843 F.3d 816
• Parties: Jeff Silvester; Brandon Combs ; The Calguns Foundation, Inc., a non-profit organization; The Second Amendment Foundation, Inc., a non-profit organization, Plaintiffs-Appellees, v. Kamala D. Harris, Attorney General of the State of California, in her official capacity, Defendant-Appellant.
• Docket Number: No. 14-16840
• Decision Date: 14 December 2016

843 F.3d 816

Jeff Silvester; Brandon Combs ; The Calguns Foundation, Inc., a non-profit organization; The Second Amendment Foundation, Inc., a non-profit organization, Plaintiffs-Appellees,
v.
Kamala D. Harris, Attorney General of the State of California, in her official capacity, Defendant-Appellant.

No. 14-16840

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2016 San Francisco, California
Filed December 14, 2016

Jonathan M. Eisenberg (argued) and Peter H. Chang, Deputy Attorneys General; Mark R. Beckington, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Francisco, California; for Defendant-Appellant.

Bradley A. Benbrook (argued) and Stephen M. Duvernay, Benbrook Law Group PC, Sacramento, California; Donald E.J. Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, California; Victor J. Otten, Otten Law PC, Torrance, California; for Plaintiffs-Appellees.

Anna M. Barvir, Clinton B. Monfort, and C.D. Michel, Michel & Associates PC, Long Beach, California, for Amici Curiae California Rifle and Pistol Association and Gun Owners of California.

Jeremiah L. Morgan, John S. Miles, William J. Olson, Robert J. Olson, and Herbert W. Titus, William J. Olson P.C., Vienna, Virginia; for Amici Curiae Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Institute on the Constitution, and Conservative Legal Defense and Education Fund.

Michael Connelly, Ramona, California, as and for Amicus Curiae U.S. Justice Foundation.

George M. Lee, Seiler Epstein Ziegler & Applegate LLP, San Francisco, California; John R. Lott, Jr., Ph.D., Crime Prevention Research Center, Swarthmore, Pennsylvania; for Amicus Curiae Crime Prevention Research Center.

Marienne H. Murch, Rebecca A. Jacobs, and Simon J. Frankel, Covington & Burling LLP, San Francisco, California, for Amicus Curiae The Law Center to Prevent Gun Violence.

Jonathan E. Taylor and Deepak Gupta, Gupta Beck PLLC, Washington, D.C., for Amicus Curiae Everytown for Gun Safety.

David Skaar and Anthony Basich, Hogan Lovells US LLP, Los Angeles, California; Jonathan E. Lowry, Brady Center to Prevent Gun Violence—Legal Action Project, Washington, D.C.; for Amicus Curiae Brady Center to Prevent Gun Violence.

Before: Sidney R. Thomas, Chief Judge, and Mary M. Schroeder and Jacqueline H. Nguyen, Circuit Judges.

Concurrence by Chief Judge Thomas

OPINION

Opinion by Judge Schroeder

INTRODUCTION

California has extensive laws regulating the sale and purchase of firearms. The State now appeals the district court's judgment in favor of Plaintiffs in their Second Amendment challenge to the State's law establishing a 10-day waiting period for all lawful purchases of guns.

This case is a challenge to the application of the full 10-day waiting period to those purchasers who have previously purchased a firearm or have a permit to carry a concealed weapon, and who clear a background check in less than ten days. It is not a blanket challenge to the waiting period itself. It is not a challenge to the requirement that the California Bureau of Firearms ("BOF") approve of the purchase of any firearm. It is not a claim that

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persons have been denied firearms who should have been permitted to purchase them. Plaintiffs do not seek instant gratification of their desire to purchase a weapon, but they do seek gratification as soon as they have passed the BOF background check.

The district court agreed with Plaintiffs that having to wait the incremental period between the time of approval of the purchase and receipt of the weapon violated Plaintiffs' Second Amendment rights. The court rejected the State's contention that a 10-day "cooling off" period was a justifiable safety precaution for all purchasers of firearms, regardless of whether they already lawfully possessed a firearm or a permit to carry one. The court also rejected the State's argument that a waiting period, in existence in California in some form for nearly a century, was the type of long accepted safety regulation considered to be presumptively lawful by the Supreme Court in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Because we agree with the State that the 10-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved, we reverse the district court's judgment. We do not need to decide whether the regulation is sufficiently longstanding to be presumed lawful. Applying intermediate scrutiny analysis, we hold that the law does not violate the Second Amendment rights of these Plaintiffs, because the ten day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase.

We begin our Second Amendment analysis with the legal background. It reflects that, beginning with the Supreme Court's watershed decision in Heller , federal courts have had to scrutinize a variety of state and local regulations of firearms, and that our court, along with others, has developed a body of law applying intermediate scrutiny to regulations falling within the scope of the Second Amendment's protections.

LEGAL BACKGROUND

I. The Supreme Court's Decision in Heller

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The seminal case interpreting the Second Amendment in this century is Heller , where the Supreme Court confronted statutes effectively prohibiting operable firearms in the home. 554 U.S. at 628, 128 S.Ct. 2783.

In Heller , the plaintiff challenged District of Columbia statutes that banned the possession of all handguns, and required that any lawful firearm stored in the home, such as a hunting rifle, be "disassembled or bound by a trigger lock at all times, rendering it inoperable." Id. After conducting a lengthy historical inquiry into the original meaning of the Second Amendment, the Court announced for the first time that the Second Amendment secured an "individual right to keep and bear arms." Id. at 595, 128 S.Ct. 2783. The Court determined that the right of self defense in the home is central to the purpose of the Second Amendment, while cautioning that the right preserved by the Second Amendment "is not unlimited." Id. at 626–28, 128 S.Ct. 2783.

Heller gave us the framework for addressing Second Amendment challenges. First, Heller evaluated whether the firearms regulations fell within "the historical understanding of the scope of the [Second

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Amendment] right." Id. at 625, 128 S.Ct. 2783. The Court indicated that determining the scope of the Second Amendment's protections requires a textual and historical analysis of the Amendment. Id. at 576–605, 128 S.Ct. 2783.

The Court also recognized that the Second Amendment does not preclude certain "longstanding" provisions, id. at 626–27, 128 S.Ct. 2783, which it termed "presumptively lawful regulatory measures," id. at 627 n.26, 128 S.Ct. 2783. The Court provided examples of such presumptively lawful regulations that it said included, but were not limited to, "prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 626–27, 128 S.Ct. 2783.

Guided by its historical inquiry, the Court struck down District of Columbia statutes that banned handgun possession and required all lawful firearms in homes to be unloaded and disassembled or locked. Id. at 629–30, 128 S.Ct. 2783. The Court rejected the government's position that because the Amendment begins with a reference to the need for a militia, the Second Amendment protects only the right to bear arms for military purposes.

The four dissenting Justices relied on United States v. Miller , where the Court made reference to the military and civilian purposes of the Amendment. Id. at 637–38, 128 S.Ct. 2783 (Stevens, J., dissenting) (citing Miller , 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) ). The Court there upheld a regulation prohibiting the civilian possession of short-barreled shotguns. Miller , 307 U.S. at 178, 59 S.Ct. 816. Under the dissent's reading of Miller , the Second Amendment "protects the right to keep and bear arms for certain military purposes, but [ ] it does not curtail the Legislature's power to regulate the non-military use and ownership of weapons." Heller , 554 U.S. at 637, 128 S.Ct. 2783. The Heller majority interpreted Miller as limiting the type of weapon eligible for Second Amendment protection, not as restricting the Amendment to military purposes. Id. at 622, 128 S.Ct. 2783. " Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." Id. at 623, 128 S.Ct. 2783.

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