This is the second in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
Background for clarity: Amicus curiae (plural: amici) is Latin for "friend of the court." As explained by the Cornell University Law School Legal Information Institute, “Frequently, a person or group who is not a party to a lawsuit, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court's decision.” This article explores the amici in support of (ISO) Defendant/Appellant Attorney General Kamala Harris.
BRADY, EVERYTOWN, AND THE ARTIST FORMERLY KNOWN AS LCAV
Following Harris’ opening brief, three amici -- the Brady Center to Prevent Gun Violence, Everytown for Gun Safety, and the Law Center To Prevent Gun Violence -- each filed briefs in support of Harris and reversal of the District Court’s decision that found California’s 10-day waiting period laws (WPL) unconstitutional as applied to three classes of people. (If you’re needing to catch up on what happened in the case and why, visit our Silvester v. Harris case web page.)
Covering all three briefs is relatively simple, because all three briefs largely make the same arguments:
- The WPL are “longstanding” and therefore presumptively lawful;
- The WPL regulate the “commercial sale of arms” and are therefore presumptively lawful;
- Even if the WPL were not presumptively lawful, they relate to an “important government interest” – public safety – and therefore survive intermediate scrutiny.
The first argument all three briefs make comes from a much-debated footnote in the Supreme Court’s 2008 D.C. v. Heller decision:
Like most rights, the Second Amendment right is not unlimited. . . . [N]othing in our opinion should be taken to cast doubt on longstanding 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.Heller, 128 S.Ct. 2783 (2008) at 2816-2817.
This single passage is the crux of most Second Amendment legal debate today. The courts are still actively wrestling with the question of how to determine what gun laws are “presumptively lawful” and what laws are unconstitutional infringements. While we would say the answer is obvious – what part of “shall not be infringed” is unclear? – the reality of Second Amendment litigation is that we have to face arguments that turn on various "dicta" in Heller.
LCPGV and Everytown argue in various ways that the WPL should be considered “longstanding” and presumptively lawful. (Interestingly, the Brady Center splits from the pack on this issue, arguing that only “prohibitions on the possession of firearms by felons and the mentally ill” are required to be “longstanding.”)
[A] dozen states enacted waiting periods in the 1920s and 30s consistent with the Uniform Law Commission’s model legislation, and Congress enacted a waiting period for the District of Columbia. . . . [E]ven the NRA advocated their adoption for the first three-quarters of the 20th century. . . .Given this “historical prevalence,” California’s law is a “longstanding” regulation under Heller.
LCPGV goes further, arguing that the Third Circuit’s analysis should be used, requiring only that a regulation “(1) have existed in some form for a significant period of time, either in a diverse number of jurisdictions or over a significant portion of the population; and (2) be consistent with the traditional regulation of firearms” to be considered “longstanding:”
Waiting period laws like those in effect in California have been enacted in ten states . . . Moreover, waiting period laws also apply to approximately one-third of the national population as of the 2010 census . . . The widespread passage of waiting period laws over the last century demonstrates that these laws have been generally accepted in a wide array of jurisdictions over a significant period of time and therefore should be considered “longstanding.”
Under this view, unusually-strict gun control laws passed by a minority of states within the past 80 or so years masquerade as “longstanding” and “presumptively lawful” instead of the uncommon and unconstitutional infringements that they are.
THE WPL REGULATE THE COMMERCIAL SALE OF ARMS
The next argument is vitally important. Under these groups’ views, any law “imposing conditions and qualifications on the commercial sale of arms” is a “presumptively lawful” regulation under the dicta of Heller. This category, generally understood to refer to rules governing licensing of FFLs or transfers of firearms, is twisted by the amici to cover any law relating to the sale of firearms. Under their argument, even a complete ban on the sale of handguns would apparently be “presumptively lawful” so long as private possession were not banned.
As the Brady Campaign so simply puts it:
[S]ince the Waiting Period is a “presumptively lawful” condition on commercial sales of firearms, it should be upheld without further scrutiny of any type.THE “2A TWO-STEP”
Finally, we come to a recurring argument of gun prohibitionists that is so prevalent in litigation, Second Amendment advocates call it the “2A Two-Step” or “post-Heller Two-Step.” In this perverse interpretation of the Second Amendment, they first argue that, since the “core” of the Second Amendment is the right to keep and bear arms for self-defense within the home, any law that does not directly destroy the ability of a person to defend themselves within their own home is reviewed under the lesser of the forms of heightened judicial review, “intermediate scrutiny.”
“Scrutiny” levels are a legal concept that is beyond the scope of this article, but generally speaking, in order for a law to pass intermediate scrutiny, “the challenged law must further an important government interest by means that are substantially related to that interest.” Notably, intermediate scrutiny generally requires a showing (evidence) going to the law’s tailoring and fit with the stated interest.
However, under the “post-Heller Two-Step,” the government first argues that “public safety” (or, sometimes more explicitly, “reducing gun violence”) is a “substantial interest” of the government. From there, it argues that any law they claim to further public safety is a “good enough” fit with the interest (nevermind evidence), and is therefore constitutional. (For more on the Two-Step, read this brief to the Supreme Court.)
Under this improper application of “intermediate scrutiny,” any gun control law short of a total ban on the possession of firearms in homes by law-abiding people would be constitutional...because the government says it is.
Interestingly enough, the amici in this case are more interested in the procedural discussions of how to evaluate the constitutionality of gun control laws than they are with the actual waiting period laws. Unlike Harris, who spent a large portion of her opening brief arguing about the hypothetical evils she thinks will occur if the Ninth Circuit upholds the District Court’s decision holding WPL unconstitutional, the amici in support of Harris spend the majority of their arguments discussing scrutiny standards and the definitions of terms. It’s almost like they think the Second Amendment is a second-class right…
Thanks for following our series on Silvester v. Harris. Things get exciting in Part III, where the Plaintiffs/Appellees fire back!
Part I: The Silvester v. Harris (10-Day Waiting Period Case) Appeal – Part I: The State’s Opening Brief
This is the first in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied). Each post will walk through a different aspect of the appeal, beginning with the State’s opening brief at the Ninth Circuit. For more information on the Silvester case prior to appeal, see this Aug. 25, 2014, news release on the District Court’s decision (finding the WPL unconstitutional) and this Nov. 20, 2014, news release on the District Court’s denial of the State’s post-trial motions.
THE DISTRICT COURT’S DECISION BEING APPEALED
Silvester v. Harris is a federal civil rights lawsuit that challenges the State of California’s 10-day waiting period laws (“WPL”) as unconstitutional under the Second and Fourteenth Amendments to the United States Constitution. (Because the Court found the WPL to violate Second Amendment rights, it declined to rule on the Fourteenth Amendment claims.) The plaintiffs in the case are gun rights groups The Calguns Foundation and Second Amendment Foundation, and individuals Jeffrey Silvester and Brandon Combs. The defendant is California Attorney General Kamala Harris.
On August 25 of last year, Judge Anthony Ishii of the United States District Court for the Eastern District of California released his decision after a bench trial, holding that the WPL is unconstitutional as-applied to three classes (“groups”) of law-abiding people: “individuals who successfully pass the BFEC/standard background check prior to 10 days and who are in lawful possession of an additional firearm as confirmed by the AFS system,” “individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess a valid CCW license issued pursuant to California Penal Code § 26150 or § 26155,” and, “individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess both a valid COE issued pursuant to California Penal Code § 26710 and a firearm as confirmed by the AFS system.”
DOJ’S POST-JUDGMENT MOTIONS
Defendant Attorney General Kamala Harris filed a request to alter or amend the judgment on September 22, 2014, an appeal to the Ninth Circuit Court of Appeals not quite a month later on September 24, and a request for stay pending appeal a few days later on September 29th. Judge Ishii rejected their motions to stay and/or alter the judgment on November 20, 2014, finding that the State had not shown sufficient irreparable harm would be caused by complying with the order, especially when weighed against the irreparable harm being done to gun owners while their rights are being infringed upon.
The State’s appeal is going forward before the U.S. Court of Appeals for the Ninth Circuit. Harris filed her Opening Brief on March 25, 2015, and it’s that brief – and the arguments contained within – that we’re going to look at today.
APPELLANT’S OPENING BRIEF – LEGAL THEORY
The Attorney General begins her argument with a hypothetical look at American history. According to Harris, the Founding Fathers would have been used to a slower “pace of life” in the Founding Era and, therefore, really wouldn’t have minded a waiting period. In their view, the impossibility of an act in the 1700s justifies arbitrary restrictions in the 2000s. Because “[m]ost people lived on isolated family farms, a day’s horseback ride away from the nearest store, which may or may not have carried firearms and which store was typically closed during the entire harvest season,” therefore a second waiting period is justifiable today. Taking the legal concept of interpreting the Second Amendment as it would have been understood to the Founders, the State concludes that the Founders would not have viewed the Second Amendment as guaranteeing “instant” access to firearms, let alone “instant” access to multiple firearms.
Harris continues on into a recurring argument amongst gun prohibitionists, taking a single line from the Heller decision and interpreting it to protect virtually any gun law in existence more than a few years.
[B]y virtue of being more than 90 years old, and representative of numerous other firearm waiting-period laws, the Waiting-Period Laws must also be seen as “longstanding” under Heller—and for that reason, as well, presumptively lawful.
Further, she argues that, although “only ten states impose a waiting period,” “10 states is a significant fraction . . . of all states, and reflects fairly widespread acceptance of waiting-period laws.”
In the State’s view, if a policy has been enacted by more than a handful of states for more than a handful of years, it should be “bootstrapped” into constitutionality merely by existing in some places for some period of time.
Raging Hypotheticals – DOJ’s Nightmarish Future
Moving forward, California moves into the “meat” of the brief – its hypothetical future full of law-abiding criminals-in-training taking advantage of administrative and regulatory processes to wreak havoc on the unsuspecting masses.
[W]aiting-period laws tend to inhibit firearm violence even by people who at one time in the past were known to have firearms. A person’s firearms may be broken, loaned out, lost, stolen, or lacking in ammunition. Also, a gun owner or his or her family member could surrender his or her firearms to law enforcement authorities while the gun owner seeks mental health treatment, and BOF via its databases would not necessarily know of the situation. Additionally, a person who already owns firearms may choose to acquire new or additional firearms to commit acts of violence more effectively or heinously. Just like first-time firearm buyers, the people in these situations could not commit acts of firearm violence (or could commit only less deadly acts of firearm violence) without new firearms, making it worthwhile for Appellant to delay delivering firearms to all people subject to the Waiting Period Laws.
(Internal citations omitted)
In the Attorney General’s estimation, absent a 10 day waiting period, current gun owners might receive a mental health hold, surrender their firearms to law enforcement, rush down to their local gun store, buy a rifle (beating the DOJ BOF’s database updates), and go on to kill themselves or others. Harris expresses her grave concern over the possibility that someone will pass a background check on Day 1, only to fail it on Day 10.
THE THREAT OF CCW LICENSEES
Finally, Harris explains what “errors” of fact or law she believes the District Court made in issuing its prior decision. According to Harris, CCW licensees and holders of COEs are violent potential psychopaths just waiting for a bureaucratic loophole to unleash their inner demons.
Harris argues that, “[t]here is no evidentiary basis for finding that CCW permit holders are unlikely to be violently impulsive, or are likely to be deliberative and reflective about firearm use, or are unlikely to engage in straw purchases.” In reality, some studies have found CCW licensees notably less likely to commit a gun-related crime than even active law enforcement officers. (Many studies have shown that carry licensees are some of the safest and conscientious people around.)
Harris goes even further, imagining a scenario where CCW licensees and holders of a COE realize that they are able to instantly pass background checks and scheme to sell their privileged status to others as ‘preferred straw purchasers’:
It is reasonable to assume that, under the final judgment, there will emerge a certain group of subsequent purchasers who are routinely auto-approved for firearm purchases, and thus are able to obtain firearms very quickly. These people likely will come to recognize their “favored” status in firearm transactions. They will have natural incentives to become straw purchasers for the many other people who, even though legally permitted to obtain firearms, otherwise would have to wait at least several days for CIS Analysts to conduct their background checks manually and approve the purchases. There likely will be an increase in the number of illicit straw purchases, and California will have ever-less accurate and complete records about which people purchased which firearms.CONCLUSION
The State of California, through defendant Attorney General Kamala Harris, is desperately trying to provide a justification, any justification, for imposing an unnecessary and continuing burden on law-abiding gun owners. To do so, they have been forced to hypothesize increasingly-unlikely scenarios where law abiding gun owners – even those in possession of a CCW or a COE – fall into illegality, yet would have been stopped by a full 10-day wait.
You can read all of the appeal filings at the dedicated Silvester v. Harris case website.
March 6, 2015 (SACRAMENTO, CA) — A number of California firearm retailers are firing back in a federal civil rights lawsuit against Attorney General Kamala Harris and the State’s Department of Justice.
The case was filed last November after the DOJ cited a Tracy, California gun dealer for having pictures of handguns in his store’s windows in violation of Penal Code section 26820. Plaintiffs include Tracy Rifle and Pistol, Sacramento Black Rifle, Ten Percent Firearms, PRK Arms, and Imbert & Smithers.
The plaintiffs say that the law, passed in 1923, is a ban on constitutionally-protected speech — speech that the dealers believe is protected under the First Amendment.
In a recent court filing opposing the challenge, the Attorney General argued that “California has a substantial interest in decreasing handgun violence and [Penal Code] section 26820 directly advances that interest by dampening demand for emotion-driven impulse purchases of handguns.”
“Typically the government is less upfront about its desire to use speech restrictions for other policy goals,” attorneys for the gun dealers said in their reply brief.
The gun retailers’ brief went on to say that, “At bottom, the Attorney General thinks that people’s exercise of their Second Amendment rights is unwise and dangerous. As a result, the Attorney General would like people not to exercise those constitutional rights, much as the Virginia Legislature did in Bigelow v. Virginia…when it restricted advertising for abortions.”
The Virginia abortion advertising ban was struck down in 1975 by the United States Supreme Court.
“The Attorney General might prefer a world without handguns and an Orwellian ban on Second Amendment-related speech, but the Supreme Court has told us the government can’t use speech restrictions to chill the exercise of other fundamental rights,” commented Brandon Combs, president of California Association of Federal Firearms Licensees, the state’s firearm industry association.
Tracy Rifle and Pistol owner Michael Baryla added: “The First Amendment prevents the government from muzzling citizens and businesses that government officials don’t approve of. This speech ban should be struck down.”
Quipped Baryla, “Ms. Harris’ heavy-handed attacks on our free speech don’t seem like very ‘liberal’ policies to me at all.”
The plaintiffs’ pending motion for preliminary injunction against the statute is scheduled to be heard by U.S. District Court Judge Troy L. Nunley at 2 p.m. on March 12, 2015, in Courtroom 2 (15th floor) at the Robert T. Matsui United States Courthouse, 501 I Street, Sacramento, CA 95814.
Case documents for Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. can be viewed at calgunsfoundation.org/litigation/trap-v-harris.
February 26, 2015 (SACRAMENTO, CA) -- In response to a federal district court decision released today on the constitutionality of the State of California’s “Unsafe Handgun Act” handgun roster and microstamping laws, The Calguns Foundation released the following statement:
“We are disappointed that the district court sidestepped a clear violation of Second Amendment civil rights in its decision today. However, we are absolutely committed to litigating this case as far as necessary to reverse this incorrect ruling and restore the right to keep and bear modern handguns in the Golden State.
It is difficult to understand how the Supreme Court’s landmark District of Columbia v. Heller decision could be so badly mis-applied. Laws that ban law-abiding people from acquiring virtually all modern handguns following a rigorous background check have no constitutional basis and must be overturned.
It is utterly preposterous that a Federal Court would rule that a ban on all new semi-automatic handguns does not burden Second Amendment rights. Such a decision conflicts with Ninth Circuit precedent, much less the Supreme Court’s holdings in Heller and McDonald v. Chicago.
Our counsel have already appealed the ruling to the Ninth Circuit Court of Appeals and will take every action necessary to create a successful outcome there.”
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.
ROSEVILLE, CA (December 24, 2014) – Counsel for plaintiffs in the federal Second Amendment "right-to-carry" lawsuit Richards v. Prieto filed a brief in the Peruta v. San Diego matter earlier today, responding to two orders issued by the Ninth Circuit Court of Appeals on December 3.
Civil rights attorney Alan Gura, who prevailed at the U.S. Supreme Court in the landmark cases D.C. v. Heller and McDonald v. Chicago, submitted the brief on behalf of the Richards amici, or "friends of the court." Co-counsel Donald Kilmer of San Jose appears on the brief as well.
In the court filing, Gura argues that California Attorney General Kamala Harris shouldn't be allowed to intervene in place of San Diego Sheriff Gore, who opted to concede the issue following the court's February decision that held his "good cause" policy unconstitutional. The brief also says that the case should not be re-heard by the full, or "en banc", court.
"This Court has enough material to consider in evaluating the constitutionality of handgun carry licensing policies, without adding peculiar procedural complications and jurisdictional doubts that would only jeopardize the validity of any en banc outcome. The panel correctly decided this case, and rehearing is unwarranted," concluded Gura. "But regardless of whether the panel’s legal conclusions should be reconsidered, this case should end here, without rehearing en banc."
The Richards plaintiffs' brief can be viewed or downloaded at http://old.calgunsfoundation.org/wp-content/uploads/2014/12/2014_saf_peruta_en_banc_opp_amicus.pdf.
The Calguns Foundation (www.calgunsfoundation.org) is a non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights.
The 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.