The Silvester v. Harris 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.
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.”

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.

Hypothetical Frontiersmen
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.

“Longstanding” Regulations
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.
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.
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.