10-Day Gun Waiting Period Potentially Unconstitutional

So concludes today’s Silvester v. Harris (E.D. Cal. Dec. 9, 2013). The analysis (some paragraph breaks added):

The WPL [the Waiting Period Law] prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. That is, there is a period of at least 10 days in which California prohibits every person from exercising the right to keep and bear a firearm.

There can be no question that actual possession of a firearm is a necessary prerequisite to exercising the right keep and bear arms. Further, there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm.

Although [Attorney General] Harris argues that the WPL is a minor burden on the Second Amendment, Plaintiffs are correct that this is a tacit acknowledgment that a protected Second Amendment right is burdened. Therefore, the Court concludes that the WPL burdens the Second Amendment right to keep and bear arms.

The next step is to analyze the WPL under either strict or intermediate scrutiny. As indicated above, Harris advances two rationales in defense of the WPL — it provides a “cooling off period” for those who may have an impulse to commit violence and it provides time for California to conduct a background check. It is unnecessary for the Court to determine at this time which scrutiny to apply because, even under the lesser “intermediate scrutiny,” summary judgment is not appropriate.

With respect to the rationale of providing time to perform a background check, Heller indicated that some laws or regulations presumptively do not offend the Second Amendment, including laws that prevent felons and mentally ill persons from possessing firearms. If a state presumptively can constitutionally prohibit certain categories of persons from possessing firearms, then it would seem to follow that a state can also perform some type of “background check” in order to ensure that a disqualified person is not attempting to obtain a firearm.

Indeed, Plaintiffs do not argue that background checks are constitutionally improper, nor do they argue that California should not perform background checks. What Plaintiffs essentially argue is that the 10-day period is arbitrary and/or substantially overbroad, and that an adequate background check can be performed in a significantly shorter period of time. Although Harris has made arguments that support a waiting period in general, Harris has presented insufficient evidence to justify the actual 10-day period.

For example, there is no evidence regarding the nature of the background checks performed, how much time is necessary to perform a background check, or why 10-days are necessary in order to perform a background check. Harris admits that in the past California has had waiting periods that have ranged from 1 to 15 days. However, there is nothing before the Court to suggest that the 10-day period is a “reasonable fit” that is not substantially broader than necessary to determine if an individual is disqualified from owning a firearm. More information is needed. The Court will not grant summary judgment on this issue based on the bare arguments presented.

As for the “cooling down” rationale, Harris has not presented sufficient evidence that the 10-day waiting period is a “reasonable fit.” For example, there is no evidence concerning how the 10-day period was determined for purposes of “cooling off,” any evidence concerning “cooling off” and gun violence in general for those wishing to purchase a firearm, or that the 10-days is not substantially broader than necessary.

Additionally, as applied to individuals who already own a gun, the Court has great difficulty envisioning how the “cooling off” rationale could pass the appropriate level of scrutiny. If an individual already possess a firearm, then nothing about this rationale would prevent that individual from acting on a sudden impulse to commit gun violence with the gun already in his or her possession. The Court will not grant summary judgment on this issue based on the bare arguments presented.

For those interested in such matters, Judge Ishii, the authoring judge, was appointed by President Clinton.

Here’s my thinking on the subject of cooling-off periods, from from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda (UCLA L. Rev., 2009):

Some jurisdictions require a “cooling-off” period before a gun may be delivered to the purchaser. Others apply this only to handguns. The rationale for such laws is to prevent impulsive killings or suicides by people who are angry or despondent and who might calm down after a few days.

It’s hard to see how handgun-only cooling-off periods will materially reduce danger of impulsive crime or injury. It’s as easy to commit suicide with a shotgun as with a handgun, and for a crime of passion a shotgun will often be equally effective, too. Though it’s not as concealable as a handgun, and thus is worse for daily carrying or for inconspicuously hanging around waiting for passersby to rob, it should be quite sufficient for a crime of passion, where it can be concealed briefly under a coat or in a bag. All-gun waiting periods might in principle be effective, if the buyer is an otherwise law-abiding citizen who wouldn’t just turn to the black market instead. But even that has not been proven: As with so many “reducing danger” arguments, the social science evidence on the effectiveness of cooling-off periods is inconclusive.

At least one state, Maryland, requires an extra background check before a gun can be picked up, and imposes a seven-day waiting period for that reason. The federal background check is generally instant, but can take several days to complete if someone with the same name as the applicant is on the prohibited list.

Finally, Illinois, Massachusetts, New Jersey, New York, and North Carolina apparently require up to a month, or in New York’s case up to six months, for a handgun purchase permit (or, in New Jersey, any firearm purchase permit) to be cleared. Other states require from two to fifteen days.

Are these waiting periods substantial burdens on self-defense (and therefore, under the framework my article proposes, presumptively unconstitutional)? In one way, they are: A person covered by the waiting period is entirely unable to defend himself for days, weeks, or (in New York) months. An attack that requires self-defense can happen during the waiting period just as easily as it can happen during other times.

Moreover, in some situations, the attack may be especially likely during the waiting period: A person’s attempt to buy a gun may be prompted by a specific threat, a threat which could turn into an actual attack in a matter of days or hours. If a woman leaves an abusive husband or boyfriend, who threatens to kill her for leaving, she may need a gun right away, not 10 days later or 6 months later.

On the other hand, it is certainly the case that being disarmed for 0.1 percent of one’s remaining life (that’s what 14 days ends up approximately being, for a person of average age) is less of a burden than being disarmed altogether. And waiting periods have been found to be constitutionally permissible as to other rights.

I can’t offer here a clear answer to whether waiting periods are unconstitutional, but I thought I would at least sketch out the analogy to other rights. The Supreme Court has upheld — over heated dissent — a 24-hour waiting period for abortions, justified by much the same cooling-off concerns mentioned above. A short-lived Ninth Circuit decision that recognized a right to assisted suicide said that “reasonable, though short, waiting periods to prevent rash decisions” would be constitutional, and the Oregon assisted suicide statute indeed provides a 15-day waiting period. A waiting period is often required for sterilization, though there might well be a constitutional right to undergo sterilization as part of one’s right to control one’s procreation. In many states it takes from one to five days to get a marriage license, though I know of no cases considering whether this violates the right to marry. On the other hand, there are limits: Even where prisoners and military members are involved — a context where the government generally has very broad authority — lower courts have struck down six-month and one-year waiting periods before a soldier or an inmate may marry.

The Supreme Court has also held that a state may require people to register to vote fifty days before the election, for much the same investigatory reasons that are offered for some background-check-based waiting periods. Cities are generally allowed to require that demonstration and parade permit applications be filed some days in advance, though lower courts have suggested the upper bound might be three or four days. Lower courts have also suggested that permit requirements would be impermissible for groups of a few people, who don’t materially implicate the city’s interests in traffic control or adequate policing.

And lower courts have also suggested that even if some substantial advance notice may normally be required for demonstration permits, there has to be a special exception for spontaneous expression occasioned by breaking events. This would suggest that a similar exception might have to be required for handgun permits when the applicant can point to a specific, recently occurring threat — such as the applicant’s leaving an abusive boyfriend who threatened to kill her if she left. (Cf., e.g., Fla. Stat. Ann. § 790.33(2)(d)(6) (West 2007) (exempting from the waiting period, which would normally be up to 3 days, “[a]ny individual who has been threatened or whose family has been threatened with death or bodily injury, provided the individual may lawfully possess a firearm and provided such threat has been duly reported to local law enforcement”); Minn. Stat. Ann. § 624.7132 subdiv. 4 (West 2003) (providing that “the chief of police or sheriff may waive all or a portion of the five business day waiting period in writing if the chief of police or sheriff finds that the transferee requires access to a pistol or semiautomatic military-style assault weapon because of a threat to the life of the transferee or of any member of the household of the transferee”); Ohio Rev. Code Ann. § 2923.1213 (providing for temporary emergency license to carry a concealed weapon when the applicant provides a sworn statement “that the [applicant] has reasonable cause to fear a criminal attack upon the person or a member of the person’s family, such as would justify a prudent person in going armed,” or other evidence of such a threat); cf. 18 U.S.C. § 922(s)(1)(B) (exempting transferees from the waiting period for gun purchases if they stated that they “require[ ] access to a handgun because of a threat to the life of the transferee or any member of the households of the transferee”; this was in effect during the pre-instant-background check era, see 18 U.S.C. § 922(t)).)

These other constitutional rights are not perfect analogies. A three-day delay in voting, marrying, or demonstrating won’t leave you unprotected against a deadly attack. Conversely, erroneously authorizing someone to vote when he’s a convicted felon is less likely to cause serious harm than erroneously authorizing someone to buy a gun when he’s a convicted felon but the instant background check has yielded an inconclusive result. Nonetheless, this catalog of decisions at least suggests that (1) waiting periods on the exercise of constitutional rights need not always be seen as unconstitutional, and (2) courts are and should be willing to decide which waiting periods are excessive.

Thanks to Gene Hoffman for the pointer.