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Gun Rights Lawsuit Heating Up: California Ordered to Respond, Multiple Briefs Filed in Support of 10-Day Waiting Period Petitioners

WASHINGTON, D.C. (October 27, 2017)­­­­­­ – A Second Amendment lawsuit out of California is drawing attention at the Supreme Court and support from multiple groups, said gun rights group The Calguns Foundation, which joined Second Amendment Foundation and two individuals on a petition in September seeking the Court’s review of a Ninth Circuit ruling that upheld the state’s 10-day waiting period laws when they are enforced against law-abiding gun owners after they pass a rigorous background check.

Last month, the respondent California Attorney General Xavier Becerra waived his right to reply to the petition. But on September 29 the Supreme Court ordered the State to reply; on October 24, the Court granted the State of California an extension of time to file that reply, making the new deadline December 1. Adding support for the case, multiple briefs have been filed in support of the petitioners, encouraging the Supreme Court to grant review and overturn the Ninth Circuit’s ruling. 

In a brief authored by preeminent constitutional scholars Ilya Shapiro and Trevor Burrus, the Washington, D.C.-based think tank Cato Institute presented a strong case for the Court to grant certiorari.  The brief argues, among other things, that intermediate scrutiny “means something different in almost every circuit [court of appeal] when applied to the Second Amendment” and that the Ninth Circuit “abused petitioners’ fundamental rights by misapplying intermediate scrutiny.”

And in another brief, former California Deputy Attorney General Raymond M. DiGuiseppe argued on behalf of a coalition of Second Amendment advocacy groups—including Firearms Policy Coalition, Firearms Policy Foundation, Gun Owners of California, and Madison Society Foundation—that Supreme Court review is necessary in this case “to reestablish the rule of law and halt the trend of judicial obstructionism” that is “jeopardizing” the constitutional protections of the Second Amendment. “This is not the first time the Ninth Circuit has played ‘fast and loose’ with the Court’s Second Amendment jurisprudence to fend off constitutional claims – nor will it be the last if this Court does not step in,” the brief said.

Attorneys Douglas A. Applegate and George M. Lee of the San Francisco-based law firm Seiler Epstein Ziegler & Applegate LLP filed a brief for the Crime Prevention Research Center, a research and education organization led by the renowned economist Dr. John Lott, arguing that “the standards applied by the lower courts vary widely” and that “the Ninth Circuit reversed the evidentiary findings of the trial court and supplanted the evidence that the trial court received and weighed with its own non-empirical views of what it thought was reasonable.” 

“We are pleased that other groups have recognized the serious flaws in the Ninth Circuit’s approach,” explained Erik S. Jaffe, the petitioners’ Supreme Court counsel. “The results-driven analysis in the opinion below not only does violence to the Second Amendment, but does violence to the rule of law and respect for the courts. We are hopeful that the Justices, whatever their views on the scope of the Second Amendment, will recognize that the decision below is well out of bounds of any reasonable reading of Supreme Court precedent or standards for intermediate scrutiny and will take the necessary steps to ensure the fair administration of justice in Second Amendment cases.”

In 2014, Federal District Court Judge Anthony W. Ishii—nominated to the bench by then-President Clinton—held that California’s waiting period laws were unconstitutional as applied to three categories of gun purchasers after undertaking significant discovery, depositions, and a three-day bench trial.

But in 2016, the United States Court of Appeals for the Ninth Circuit bizarrely ruled that even a person legally carrying a concealed handgun as he buys another gun at retail, and who passes a further background check, needs to be “cooled off” for another 10 days before exercising his Second Amendment rights and taking possession of a constitutionally-protected firearm.

Brandon Combs, an individual plaintiff in the case as well as the executive director of institutional plaintiff The Calguns Foundation, said that the briefs made excellent arguments and further supported the petition for review. “The Supreme Court has everything that it needs in a case with an excellent trial record teed up here to save the Second Amendment from hostile lower courts.”

“We are grateful to these amici organizations and their counsel for their support of this case and standing up for constitutional principles,” concluded Combs. 

A copy of the Silvester petition to the Supreme Court and the amicus briefs can be viewed or downloaded at https://www.calgunsfoundation.org/silvester.

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights. 

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. 

Attorney Erik S. Jaffe (www.esjpc.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship, he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and has been a sole practitioner since 1997. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 60 amicus briefs at both the cert. and merits stages.

SAN FRANCISCO (October 16, 2017)­­­­­­ – In the wake of a recent ruling by an en banc (full court) panel of the federal 9th Circuit Court of Appeals, some civil rights advocates are declaring that the Second Amendment right to keep and bear arms is “on life support” in the West. The 9th Circuit has 9 western states and 2 Pacific territories in its jurisdiction.

Last Tuesday, the court released a new decision in the case of Teixeira, et al. v. County of Alameda which held that “the Second Amendment does not independently protect a proprietor’s right to sell firearms.”

“It appears that the 9th Circuit may have finally achieved its goal of making the Second Amendment a right in-name-only,” said Brandon Combs, executive director of The Calguns Foundation. “The Supreme Court declared that the Second Amendment was not a second-class right, but lower courts are ignoring that and holding otherwise—and getting away with it.”

“If this case were about bookstores or abortion clinics, this wouldn’t even be a close call,” Combs explained. “We are cautiously optimistic that the high court will step back in and correct the direction of Second Amendment jurisprudence in the 9^th Circuit very soon.”

“It’s hard to imagine the court getting this decision about gun stores more wrong,” said Donald Kilmer of San Jose, the plaintiffs’ attorney. “If there is no Second Amendment right to sell guns through a licensed firearms dealership, then the state government could effectively and simply end all access to firearms by extending the County’s ban statewide.”

“We are evaluating all options, but a petition to the Supreme Court to ask for their review [certiorari] in this case seems very likely,” Kilmer concluded.

“[This] decision perpetuates our continuing infringement on the fundamental right of gun owners enshrined in the Second Amendment….Our cases continue to slowly carve away the fundamental right to keep and bear arms,” said Circuit Judge Richard Tallman in a dissenting opinion. Tallman was appointed to the court by former president Bill Clinton in 1999.

But Judge Tallman was not alone in criticizing the majority’s holding.

Circuit Judge Clarlos Bea said in his dissent that “neither the historical evidence nor the language of Heller supports the majority’s conclusion that the Second Amendment offers no protection against regulations on the sale of firearms.”

The original 3-judge panel decision, now vacated, was authored by now-senior Circuit Judge Diarmuid O’Scannlain.

Notably, Judge O’Scannlain also penned two other significant Second Amendment panel decisions that were historically and textually-grounded, but similarly overturned by the 9^th Circuit sitting en banc: Peruta v. California, a case challenging local “may-issue” concealed carry permit rules, and Nordyke v. King, a case challenging Alameda County’s ban on gun shows.

Teixeira is backed by institutional plaintiffs The Calguns Foundation, Second Amendment Foundation, and California Association of Federal Firearms Licensees.

Kilmer is also an attorney of record in the case of Silvester, et al. v. Calif. Att’y Gen’l Xavier Becerra, currently on petition for a writ of certiorari to the United States Supreme Court. That petition is requesting review of another 9th Circuit decision that flaunted the Supreme Court’s landmark Heller and McDonald rulings. In that case, the 9th Circuit reversed a trial court’s Findings of Fact and Conclusions of Law about the State’s 10-Day Waiting Period Laws after full discovery and a bench trial.

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms.  Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

California Association of Federal Firearms Licensees (www.calffl.org) is a nonprofit organization serving a diverse membership that includes firearm dealers, training professionals, shooting ranges, licensed collectors, others who participate in the firearms ecosystem, and the public through issue advocacy, regulatory input, legal efforts, and education.

WASHINGTON, D.C. (September 1, 2017)­­­­­­ – Today, two individuals and two Second Amendment civil rights advocacy groups filed a petition for certiorari in the case of Silvester, et al. v. California Attorney General Xavier Becerra asking the United States Supreme Court to review and overturn a wrongly-decided Ninth Circuit decision about the State of California’s 10-day waiting period laws, noted The Calguns Foundation, one of the petitioners.

BELLEVUE, WA – The Second Amendment Foundation today won a significant court victory against “good reason” requirements for concealed carry when the U.S. Court of Appeals for the District of Columbia issued a permanent injunction against enforcement of such a requirement in Washington, D.C.

The 2-1 ruling, written by Judge Thomas Beall Griffith, a 2005 George W. Bush appointee, declared that, “At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions…The District’s good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That’s enough to sink this law under (the 2008 U.S. Supreme Court’s Heller ruling).” 

“Today’s ruling contains some powerful language that affirms what we have argued for many years, that requiring a so-called ‘good cause’ to exercise a constitutionally-protect right does not pass the legal smell test,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We’re particularly pleased that the opinion makes it clear that the Second Amendment’s core generally covers carrying in public for self-defense.”

The 31-page majority opinion also said that the District’s “good cause” requirement was essentially designed to prevent the exercise of the right to bear arms by most District residents. Thus, it amounts to a complete prohibition, and that does not pass muster under the 2008 Heller ruling that struck down the District’s 30-year handgun ban. 

“The good-reason law,” Judge Griffith wrote, “is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs…”

“To read the majority opinion and not come away convinced that such ‘good reason’ or ‘good cause’ requirements are just clever ways to prevent honest citizens from exercising their rights is not possible,” Gottlieb stated. “To say we are delighted with the ruling would be an understatement. We are simply more encouraged to keep fighting, winning firearms freedom one lawsuit at a time.” 

The case is Wrenn v. District of Columbia.

SACRAMENTO, CA (June 30, 2017) — Today, Sacramento resident Craig DeLuz, Firearms Policy Coalition (FPC), and The Calguns Foundation (CGF) have announced a new legal action intended to ensure that the California Department of Justice (DOJ) cannot hide its proposed regulations from the public. The action was filed after DeLuz and two civil rights advocacy organizations sought access to DOJ regulations on so-called “assault weapon” firearms so that they could review them and inform the public, but were denied.

The petitioners are represented by Paul Nicholas Boylan, an attorney based in Davis specializing in records access and government transparency issues.