Jeff Silvester v. Kamala Harris
2016 U.S. App. LEXIS 22184
| 9th Cir. | 2016Background
- California law (since 1923, current form since 1996) imposes a 10-day waiting period (WPL) before purchasers may take possession of firearms; purposes: allow DOJ background checks and provide a "cooling-off" period to reduce impulsive violence/suicide.
- Plaintiffs (individuals and firearm-rights orgs) challenged only the application of the full 10-day wait to "subsequent purchasers" (people who already possess firearms, CCW permit holders, or have COEs) who clear the background check in less than ten days.
- The district court applied intermediate scrutiny, acknowledged the State’s safety interests, but held the incremental post-approval wait for subsequent purchasers was not reasonably fit to those interests and entered judgment for Plaintiffs.
- The State appealed, arguing (1) WPLs are historically permissible (outside Second Amendment scope), (2) they are "presumptively lawful" Heller categories, and (3) they survive intermediate scrutiny as substantially related to public safety.
- The Ninth Circuit reversed the district court: assumed the regulation falls within the Amendment’s scope, applied intermediate scrutiny, and held the 10-day wait reasonably fits important safety objectives (background checks + cooling-off), so the law does not violate the Second Amendment as applied to these subsequent purchasers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying full 10-day WPL to subsequent purchasers who pass checks early burdens protected conduct | Once DOJ approves, Silvester/Combs should take possession immediately; the extra wait is unjustified | Ten-day WPL advances background checks and cooling-off goals even for subsequent purchasers; it is a reasonable safety measure | The extra wait imposes only a modest burden; intermediate scrutiny applies and the State’s fit is reasonable — upheld |
| Proper scope test step (whether WPLs fall outside Second Amendment or are "presumptively lawful") | Plaintiffs argued as-applied challenge; did not insist WPLs are entirely outside scope | State argued WPLs are longstanding conditions on commercial sale and presumptively lawful under Heller | Court assumed WPLs are within scope and resolved case under intermediate scrutiny (did not decide presumptively lawful question) |
| Level of scrutiny to apply | Plaintiffs: burdened right, but did not urge strict scrutiny | State: intermediate scrutiny appropriate; safety interest important | Court: burden is not substantial; intermediate scrutiny appropriate |
| Fit between WPL and governmental interests (background checks; cooling-off) | District court: post-approval delay for subsequent purchasers does not further safety goals because they already own guns | State: cooling-off can prevent purchases of more dangerous/ additional weapons and proliferation; studies support reduced suicide risk after waiting | Ninth Circuit: State met its burden; ten-day wait reasonably fits important safety objectives; reversed district court |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to keep and bear arms but lists "presumptively lawful" regulations and leaves level-of-scrutiny questions to lower courts)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (applies Second Amendment protections to the states)
- Jackson v. City & Cty. of San Francisco, 746 F.3d 953 (9th Cir. 2014) (adopts two-step test; applies intermediate scrutiny to storage requirement and upholds it as reasonably tailored)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (two-step framework and intermediate scrutiny test adopted in Ninth Circuit)
- Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (upholds regulation under intermediate scrutiny; discusses longstanding-regulation inquiry)
- Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) (holds concealed-carry restrictions fall outside Second Amendment scope after historical analysis)
- Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (upholds public-carry permitting scheme under intermediate scrutiny / as longstanding)
- Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (applies intermediate scrutiny to uphold licensing restrictions on public carry)
- Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (post-Heller adjudication applying intermediate scrutiny to assault-weapons prohibition)
- United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (applies intermediate scrutiny to uphold prohibition on firearm possession by drug users)