Court says California's 10-day waiting period is Constitutional

Even if they already own a firearm, Californians will continue to have to wait 10 days to buy additional ones under a court ruling handed down Wednesday. (Photo: Jebb Harris/The Orange County Register/AP)

The U.S. Ninth Circuit Court of Appeals reversed an important gun rights victory Wednesday by upholding California’s longstanding 10-day waiting period for all gun purchases.

The opinion published by a three-judge panel says the law does not violate an individual’s Second Amendment rights and calls the 10-day wait “a reasonable precaution” as it overturns a lower court’s decision from two years ago.

“Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately upon deciding to purchase one. As a purely practical matter, delivery took time. Our 18th and 19th century forebears knew nothing about electronic transmissions. Delays of a week or more were not the product of governmental regulations, but such delays had to be routinely accepted as part of doing business,” says the court’s ruling.

The opinion reverses a 2014 decision that ordered the state to abandon waiting periods and substitute them with the federal background check system to clear buyers before a dealer transfers a firearm. Wednesday’s opinion also defends waiting periods for the first and subsequent gun purchases.

“An individual who already owns a hunting rifle, for example, may want to purchase a larger capacity weapon that will do more damage when fired into a crowd. A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home identified in (Heller v DC),” says the ruling.

California has had some form of waiting period statute for firearm sales since 1923. Initially, the law required a one-day wait for handguns, but lawmakers expanded it incrementally to three-, five- and later 15-days. Then, in 1991, to include all firearms. The only reform came in 1996 when, with the increased availability of electronic checks, it was reduced to the current 10-day mandate.

Two gun owners allied with the Second Amendment Foundation and the Calguns Foundation challenged the practice in 2011 in federal court, which laid the groundwork for the 2014 decision. Brandon Combs, executive director of The Calguns Foundation, expressed disappointment with the reversal and said his organization is weighing options for an appeal.

“Today’s opinion is but one of a growing string of wrongly-decided Second Amendment cases and serves to underscore that, if the fundamental, individual, Second Amendment right to keep and bear arms is to survive as something more than a second-class right, the Supreme Court will need to say so once more,” Combs said in an email to Guns.com.

He said the panel “has proven to be more interested in their own policy preferences than the Constitution and the text, history, and tradition of the Second Amendment.”

Judge Mary M. Schroeder, an appointment by President Carter, drafted the opinion for the panel comprised of Chief Judge Sidney R. Thomas and Judge Jacqueline H. Nguyen. Thomas is a Clinton-era appointment who was the sole dissenter in the three-judge panel that decided Peruta may-issue case in 2014 and later oversaw its reversal on en banc rehearing. Nguyen is a 2012 appointment by President Obama.

The gun-control friendly Violence Policy Center contends gun waiting periods reduce the number of prohibited people who are able to purchase firearms in addition to helping deter suicides and other impulsive acts. The group maintains that in addition to California, some nine other states currently have laws requiring some sort of waiting periods. With the exception of Hawaii who has a 14-day wait, California’s is the longest in the country.