In Silvester v. Harris, No. 1:11-CV-2137 AWI SAB (ED Cal. 08/25/14), a federal trial court held that Penal Code sections 26815(a) and 27540(a), which require ten days between purchase and delivery of a firearm, are unconstitutional under the Second Amendment as to those who have already been previously cleared for weapons possession by reason of a previous firearm purchase or possession of a concealed weapon carry permit. The decision was stayed for 180 days and an appeal to the Ninth Circuit is probable.

Unless a statutory exception applies, every person who wishes to purchase a firearm in California must wait at least 10-days from the date of purchase before taking possession of a firearm. (Penal Code sections 26815(a), 27540(a))

Penal Code section 26815(a) states: “A dealer . . . shall not deliver a firearm to a person, as follows: (a) Within 10 days of the application to purchase, or, after notice by the department pursuant to Section 28220, within 10 days of the submission to the department of any correction to the application, or within 10 days of the submission of any fee required pursuant to Section 28225, whichever is later.”

Penal Code section 27540(a) reads: “No firearm shall be delivered: (a) Within 10 days of the application to purchase, or, after notice by the department pursuant to Section 28220, within 10 days of the submission to the department of any correction to the application, or within 10 days of the submission of any fee required pursuant to Section 28225.”

The decision may have some application in those states which have a similar waiting period. Ten states and the District of Columbia impose a waiting period between the time of purchase and the time of delivery of a firearm. Three states and the District of Columbia have waiting period laws for the purchase of all firearms: California (10 days), District of Columbia (10 days), 11 Illinois (3 days for pistols, 1 day for long guns), and Rhode Island (7 days).

Four states have waiting periods for hand guns: Florida (3 days),14 Hawaii (14 days), Washington (up to 5 days from the time of purchase for the sheriff to complete a background check), and Wisconsin (2 days). Connecticut has a waiting period for long guns that is tied to an authorization to purchase from the Department of Emergency Services and Public Protection.

Minnesota and Maryland have a waiting period for the purchase of handguns and assault rifles (7 days). There is no federal waiting period law, Brady Act‟s 5-day waiting period expired in 1998. (18 U.S.C. section 922(s))

The California waiting period originated in 1923, when the California Legislature stated that no handgun, pistol, or other concealable firearm could be delivered to its purchaser on the day of purchase. In 1953, the 1923 handgun waiting-period law was codified in the Penal Code with no substantive changes. This 1953 law was “originally enacted to cool people off,” but that this law was “not enforced with regard to individual transfers through magazine sales nor at swap meets.” (People v. Bickston, 91 Cal.App.3d Supp. 29, 32 & n.4 (1979)

In 1955, the California Legislature extended the handgun waiting period from 1 day to 3 days. In 1965, the California Legislature extended the handgun waiting period from 3 days to 5 days in order to permit sufficient time for purchaser background checks.

In 1975, the California Legislature extended the handgun waiting period from 5 days to 15 days to “[g]ive law enforcement authorities sufficient time to investigate the records of purchasers of handguns prior to delivery of the handguns.” In 1996, the California Legislature reduced the waiting period from 15 days to 10 days, as an electronic database system had been installed.

The trial court noted that under McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), District of Columbia v. Heller, 554 U.S. 570 (2008), Peruta v. County of San Diego, 742 F.3d 1144, (9th Cir. 2014) and Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012), the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. However, the Second Amendment‟s protection is not unlimited, and longstanding regulatory measures such as “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,” are lawful.

The Ninth Circuit has adopted a two-step Second Amendment framework: (1) the court asks whether the challenged law burdens conduct protected by the Second Amendment, and (2) ifso, the court determines whether the law meets the appropriate level of constitutional scrutiny.

Under the first step, courts must determine whether the challenged law burdens conduct protected by the Second Amendment, based on a historical understanding of the scope of the Second Amendment right, or whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected. This is accomplished by asking whether the regulation is a “presumptively lawful regulatory measures‟ or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.

As to the second step, if a law burdens a right within the scope of the Second Amendment, either intermediate or strict scrutiny will be applied. Whether intermediate or strict scrutiny applies depends on: (1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law‟s burden on the right.

The trial court utilized intermediate scrutiny to examine the California waiting period, as the use of a waiting period was a less severe regulation which did not encroach on a core Second Amendment right. The “intermediate scrutiny” standard requires: (1) that the government‟s stated objective must be significant, substantial, or important, and (2) that there is a reasonable fit between the challenged regulation and the government‟s asserted objective.

The parties agreed that the goals of the waiting period were substantial. However, for there to be a “reasonable fit,” the regulation must not be substantially broader than necessary to achieve the government‟s interest. A regulation “may not be sustained if it provides only ineffective or remote support for the government‟s purpose,” and there must be an ndication that the regulation will alleviate the asserted harms to a “material degree.”

One cannot exercise the right to keep and bear arms without actually possessing a firearm. Because weapons purchasers forego the exercise of their Second Amendment right to keep and bear arms, the 10-day waiting period burdens the Second Amendment right to keep and bear arms.

Under this first part of the test, California failed to show that the 10-day waiting period fits within one of several categories of longstanding regulations that are presumptively lawful. As there was no evidence that similar waiting periods were in effect at the time of the Constitution or the Fourteenth Amendment, the trial court held that they were not historically accepted and understood to be permissible under the Second Amendment.

Second, there was no evidence that the waiting period is a presumptively lawful longstanding regulatory measure that imposes a condition and qualification on the commercial sale of a firearm. Waiting period laws did not exist near the time of adoption of the Second and Fourteenth Amendments, and they are not common now.

The state argued that the waiting period was a reasonable fit with the need for regulation because it allowed time to conduct a background check, provided a cooling-off period, and permitted investigation of strawman purchases.

The court was influenced by the fact that, within the 10-day waiting period, background checks can be completed anywhere from 1 minute to 10 days. 20% of all applications are uto-approved usually in about 1 to 2 hours, and require no further review.

Of the approximately 1% of applications that are denied, there is no evidence regarding when in the 10-day waiting period that the disqualifying information was obtained. “Requiring an approved . . . applicant to wait the full 10-days, when the application is otherwise approved and the applicant already has a firearm in the . . . system, on the chance that new information might come in, is unduly speculative and anecdotal.”

As to the cooling-off rationale, the 80% of applications are not auto-approved, a waiting period of at least 1-day will naturally occur because analysts must obtain and review various information.

If an individual already possess a firearm and then passes the background check, this indicates a history of responsible gun ownership. There was no evidence that applying the 10-day waiting period to all individuals who already possess a firearm will materially prevent impulsive acts of violence.

Finally, with regard to to strawman purchases, there was no evidence that the legislature implemented the waiting period laws in order to give law enforcement the opportunity to investigate straw purchases.

There was no evidence regarding the number of straw purchase investigations that lead to arrests or convictions or retrievals of firearms relative to the number of applications. On the record, the vast majority of transactions do not appear to be straw purchases. Therefore, “[a]pplying the full 10-day waiting period to all transactions for purposes of investigating a straw purchase, in the absence of any reason to suspect that a straw purchase is in fact occurring, is too overbroad.

In conclusion, as applied to individuals who already possess a firearm or had been cleared as a result of the concealed weapons permit process, there was no “reasonable fit” and therefore the waiting period violated the Second Amendment as to them.

Those not familiar with the Heller and Peruta may wish to review these prior articles:

• “Palmer v. DC Raises Handgun Carry Issue on Heller’s Home Turf,” (07/28/2014),
• “Sheriff’s Response to Ninth Circuit Leaves Issue of AG’s Participation in Peruta Appeal Wide Open,” (05/15/2014),
• “Ninth Circuit Issues Order in Peruta Gun Permit Case Requiring Sheriff to Clarify His Status On Appeal,” (05/03/2014),
• “Tactical Considerations in the Pending Motion En Banc to Review Ninth Circuit’s Peruta Decision on the SecondAmendment’s Effect on “Concealed Carry” Permit Issuance in California,” (04/12/2014),
• “California Gun Laws Under Fire,” The Recorder (03/14/2013)