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California's 'Cool Down' Period for All Gun Purchases Upheld by 9th Cir.

By Casey C. Sullivan, Esq. on December 20, 2016 | Last updated on March 21, 2019

The Ninth Circuit upheld California's 10-day 'cool down' period for gun purchasers last week. Under that law, all purchasers must wait for their guns, even if they have previously purchased a firearm or have cleared a background check in under 10 days.

Even then, a 10-day wait is not a violation of buyers' Second Amendment rights, the court explained, since requiring a waiting period is "a reasonable safety precaution for all purchasers of firearms," the court ruled.

California's "Cooling Off" Period

California has required some form of waiting period for firearms purchases since 1923, according to the Ninth Circuit. Under the current law, unchanged for 20 years, anyone who wants to purchase a firearm must undergo a background check, which relies on the state's Consolidated Firearms Information System to see if a purchaser is eligible to buy a gun. (The background check is not universal, however. There are 18 exemptions, the court notes.) Even if that check takes less than 10 days, and it usually does, purchasers are still subjected to a 10-day "cooling off" period before they can actually buy a gun.

Jeff Silvester and Brandon Combs, along with the Calguns Foundation and Second Amendment Foundation, challenged the law. Theirs was a narrow suit, focused solely on the law as applied to three classes of purchasers: those who have already bought guns (so-called "subsequent purchasers") that are registered in a state database; subsequent purchasers who have a concealed carry license; and individuals who have a "certificate of eligibility" from the California Department of Justice confirming their ability to purchase firearms.

Waiting Period Survives Intermediate Scrutiny

The district court agreed with the plaintiffs, finding that, for these three classes at least, the waiting period violated their Second Amendment rights, despite the state's safety arguments. On appeal, the Ninth Circuit disagreed. In an opinion written by Judge Mary M. Schroeder, the court ruled that "the ten day wait is a reasonable precaution for the purchase of a second or third weapon, as well as a first purchase."

Under Ninth Circuit precedent, Second Amendment cases are evaluated using a two-step process. First, the court determines if the law burdens conduct protected by the Second Amendment. If it does, the court then determines the proper level of scrutiny, looking at how "close" the law comes to a "core" Second Amendment right and how severely the law burdens that right.

Here, the court found that the waiting periods did not place a substantial burden on Second Amendment rights. In doing so, the Ninth analyzed the law under intermediate scrutiny. A waiting period, the court noted, is less burdensome than other laws the Ninth has evaluated under that standard.

Under intermediate scrutiny, the law survives if it is "substantially related to the important government interests of reducing firearm-related deaths and injuries." And so the waiting period law is, the Ninth ruled. It pointed to state studies that "confirm the common sense understanding that urges to commit violent acts or self harm may dissipate after there has been an opportunity to calm down."

"That is no less true for a purchaser who already owns a weapon and wants another, than it is for a first time purchaser," the Judge Schroeder wrote.

It rejected the district court's assumption that cooling down periods had little benefit for subsequent purchasers, since they already owned a firearm. That wrongly assumed, the Ninth explained, that all subsequent purchasers with criminal purposes in mind "already have an operable weapon suitable to do the job."

Chief Judge Sidney R. Thomas concurred separately to argue that the challenge "can be resolved at step one of our Second Amendment jurisprudence." Given the longstanding nature of the waiting period, such a law qualifies is presumptively lawful under D.C. v. Heller, he argued. There is then no need to move on to examine it under intermediate scrutiny, the Chief Judge explained.

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