CGF: Silvester v. Harris - Second Waiting Period Unconstitutional

[One78Shovel]

Happy Holidays I hate that politically correct phrase-

MERRY CHRISTMAS!

-178S

[ALSystems]

Originally Posted by AR-MAN88

A job well done! Now, can we work on the high caps magazine?

Gene said that's planned for first quarter 2012.

[One78Shovel]

Originally Posted by CaliforniaLiberal

It takes as long as it takes....

I would have guessed a year or two, three years at the most, but we've just read here that perhaps it will only take a year.

Which makes me think that the smart money is on not having to go to the US Supreme Court to get a final ruling.

No one knows for sure how long this will take. Stick around and find out. And send in your donations to CalGuns Foundation to speed things up a bit.

Actually, I would not mind seeing the State have to endure continuing pain over this, in other words, break them slowly.

-178S

[parb]

Originally Posted by One78Shovel

Happy Holidays I hate that politically correct phrase-

MERRY CHRISTMAS!

-178S

ditto!

[compulsivegunbuyer]

I've passed up many guns because I would of had to go back later. What I find realy stupid is having to wait again for a warranty replacement firearm. I waited the 10 days, it took 2 months to come, and I have to wait another 10 days to take the thing home. Yet, if I sent it in and they just fixed it, they send it right back to my door.

[Kavey]

Gene Hoffman for President

[383green]

Originally Posted by Kavey

Gene Hoffman for President

Would Gene be as effective in a Presidential role as he is as an unlicensed steamroller operator? I mean, what could he actually do as President other than swinging the veto hammer, nominating 30 or 40 young pro-liberty Supreme Court judges, and appointing a coma victim to head BATFE?

[VegasND]

Y'know, after some thought, I do believe there are worse choices.

Originally Posted by Kavey

Gene Hoffman for President

[Dreaded Claymore]

Originally Posted by hoffmang

Briar patch. Please don't throw us into it.

Can we get someone to make a LOLbunny image out of this?

[tomd1584]

This is awesome...made my day for sure!

I just made a donation this morning to the WWP (see sig). Next month was gonna be CGF, but I guess it's happening tonight instead!

[FABIO GETS GOOSED!!!]

Originally Posted by hoffmang

And should a court follow any of the modes of analysis in Heller there is no way to justify the 2nd waiting period under intermediate scrutiny, much less Ezell's almost strict scrutiny.

What will be interesting is how much the standard of review will be watered down, seeing as the plaintiffs' exercise of the core 2A right to use firearms in self defense is literally unaffected by the second waiting period. The plaintiff with the CCW is probably better situated than most gun owners in the state to exercise the core right and the waiting period does not put any restriction or limitation whatsoever on the possession/carry/use for self defense of the firearm(s) he already has, inside or outside of the home. The collector plaintiff just wants more guns, again with no reason alleged how the exercise of the core right to use his currently possessed firearms in self defense is impacted let alone burdened by having to wait 10 days to add another gun to his collection. "I want more guns" is what it boils down to. Similar to the "I want two-tone" plaintiff in the roster case. It's like, let's find a fact pattern as far away from the core right and as close to the margin of the right as we can (I want more guns just because) and plaintiffs who have less of a self-defense need for more firearms than most anybody else, and then we'll see just how weak of a standard of review we can get. How many other gun regulations are there where the argument can be made that the regulation does not burden the core right of self defense at all? True, acquisition of firearms is or should be protected activity (insofar as it corresponds to the core right to possess firearms for self-defense) and the second waiting period may be harder to justify than other regulations, but without a more compelling self-defense tie-in this lawsuit is not a good vehicle for heightened scrutiny.

[DiscoBayJoe]

^ who's to say the primary gun isn't broken and in need of repair, lost, or stolen?

I have a friend who was on vacation and came home to his house ransacked - guns gone. He's not just looking for more guns. He's looking for protection. He had to resort to borrowing a gun for the 10-day wait. What if he didn't have a willing friend? Sure smells like a 2A/RKBA violation to me!

[FABIO GETS GOOSED!!!]

Originally Posted by DiscoBayJoe

^ who's to say the primary gun isn't broken and in need of repair, lost, or stolen?

Yeah, if only the plaintiffs in this case were in that situation rather than bragging about how they are already lawfully carrying a loaded, functional firearm into the gun store with them when they are purchasing more guns which they don't really need for self defense lol:

“I have a license to carry a loaded firearm across the State,” noted Jeff Silvester. “It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”

[FABIO GETS GOOSED!!!]

The waiting period is even worse under the historical categorical analysis as the waiting periods didn't show up until the early 20th century.

1923 = presumptively lawful "longstanding regulation" according to Heller 1 and 2.

[taperxz]

FGG, I am waiting for your idea of the governments compelling interest in the 10 day wait/cooling off period/ ban for gun owners. Do they have one?

[FABIO GETS GOOSED!!!]

Originally Posted by taperxz

FGG, I am waiting for your idea of the governments compelling interest in the 10 day wait/cooling off period/ ban for gun owners. Do they have one?

Do they need a "compelling interest" in watered down heightened scrutiny? And what happens to heightened scrutiny anyway when there is at best de minimis and at worst no burden on the exercise of the core right? Seeing as scrutiny is unsettled at this point in time, my problem with this case and similar cases like the roster case is that as vehicles for heightened scrutiny they are factually weak and I would rather see cases that are factually strong.

[dantodd]

Originally Posted by FABIO GETS GOOSED!!!

What will be interesting is how much the standard of review will be watered down, seeing as the plaintiffs' exercise of the core 2A right to use firearms in self defense is literally unaffected by the second waiting period.

This will surely be the state's response. If they stipulate that the wait is an infringement they have essentially lost becuase it won't pass even relatively modest intermediate scrutiny. However; if they get the judge to accept that it is not an infringement on the core right then the law will likely have to pass no more than what equates to a rational basis test, even if it is disguised as heightened scrutiny.

It would have been nice to have a plaintiff who owns long guns only so that the 10 day wait would truly impact the right in a manner more directly analogous to the facts in Heller. Even in Ezell, it is not clear that the prohibition would necessarily fail of it weren't for the training requirement for a possession license.

I believe that Ezell would still win even of Chicafo didn't have a training requirement and I certainly hope that prior restraint on firearms acquisition beyond the first firearm would be viewed as inexcusable as prior restraint on multiple forms of reach once one form is exercised. However; I am not certain that the courts will agree.

[M. D. Van Norman]

I think Fabio’s analysis is correct. However, I don’t think establishing a level of scrutiny for judicial review is at all a goal of this case. Subsequent waiting periods shouldn’t withstand any standard of review.

That’s probably why kcbrown was expecting a lower priority. Nevertheless, subsequent waiting periods do appear to be low-hanging fruit. I also suspect that a success here will make a future move against any waiting period that much easier.

[FABIO GETS GOOSED!!!]

The choice of plaintiffs in this case could have been better IMO, is it that hard to find someone whose handgun got stolen? Also, the "I've got plenty of operable loaded handguns, in fact I'm lawfully carrying one right now, but I want more!" marketing of the case in the press release.

[model63]

Aside from the fundamental arguments....During the 10-days.... is there anything else the state is doing at present in terms of verification of information of the purchaser/x-checking information with other activity or is it strictly a cooling off period?

Wasn't it JB that touted his extension of the wait period from like 5 or 7 days to 10 days?

[FABIO GETS GOOSED!!!]

Originally Posted by M. D. Van Norman

I think Fabio's analysis is correct. However, I don't think establishing a level of scrutiny for judicial review is at all a goal of this case. Subsequent waiting periods shouldn't withstand any standard of review.

Nevertheless, subsequent waiting periods do appear to be low-hanging fruit. I also suspect that a success here will make a future move against any waiting period that much easier.

Timing is a big issue for me here, heightened scrutiny may not be a goal of the case, but the case may result in crappy scrutiny which may be more harmful than helpful in other contexts. The case also has the potential IMO to harm future moves against waiting periods for initial purchases, e.g., by solidifying that waiting periods are good ideas for initial purchases. Heller 2 also opens the door for the argument that waiting periods are longstanding regulations that are presumptively lawful. Does all of this really need to come to a head right now?

[FABIO GETS GOOSED!!!]

The "cooling off" aspect of the waiting period couldn't possibly have any application to subsequent firearm purchases. If someone's going to impulsively shoot up his workplace or hunt down his ex-wife at hers, etc., he's already got a gun so if he snaps he's going to do it anyway. Also, how much worse can it be if he brings 2 guns instead of one? So there really shouldn't be any problem allowing instant second gun purchases with no waiting period.

[curtisfong]

Originally Posted by FABIO GETS GOOSED!!!

The choice of plaintiffs in this case could have been better IMO, is it that hard to find someone whose handgun got stolen?

You could lend a hand.

[Connor P Price]

Originally Posted by FABIO GETS GOOSED!!!

The "cooling off" aspect of the waiting period couldn't possibly have any application to subsequent firearm purchases. If someone's going to impulsively shoot up his workplace or hunt down his ex-wife at hers, etc., he's already got a gun so if he snaps he's going to do it anyway. Also, how much worse can it be if he brings 2 guns instead of one? So there really shouldn't be any problem allowing instant second gun purchases with no waiting period.

So with that in mind, how do you think a reduced scrutiny matters? I don't even think a second wait survives rational basis.

[FABIO GETS GOOSED!!!]

I was being tongue in cheek there, I don't think the cooling off/ public safety arguments necessarily disappear when it comes to second waiting periods. So scrutiny matters and this case is far from a slam dunk.

[FABIO GETS GOOSED!!!]

You could lend a hand.

I'll pass on stealing handguns to generate plaintiffs; )

[hoffmang]

You keep forgetting that the burden is on the state to prove that they have any interest here. Articulate the state's interest and we'll have a conversation.

You'll note that even the Feds are having to justify MCDV (which they probably can.)

Also note that circuit splits are good. This is a slam dunk under the Ezell standard.

-Gene

[taperxz]

Originally Posted by FABIO GETS GOOSED!!!

I was being tongue in cheek there, I don't think the cooling off/ public safety arguments necessarily disappear when it comes to second waiting periods. So scrutiny matters and this case is far from a slam dunk.

Can you articulate theses public safety issues? I would be interested in hearing your thoughts on this.

[Gray Peterson]

Originally Posted by FABIO GETS GOOSED!!!

Timing is a big issue for me here, heightened scrutiny may not be a goal of the case, but the case may result in crappy scrutiny which may be more harmful than helpful in other contexts. The case also has the potential IMO to harm future moves against waiting periods for initial purchases, e.g., by solidifying that waiting periods are good ideas for initial purchases. Heller 2 also opens the door for the argument that waiting periods are longstanding regulations that are presumptively lawful. Does all of this really need to come to a head right now?

You forget that it's a facial challenge, too.

Originally Posted by FABIO GETS GOOSED!!!

The choice of plaintiffs in this case could have been better IMO, is it that hard to find someone whose handgun got stolen? Also, the "I've got plenty of operable loaded handguns, in fact I'm lawfully carrying one right now, but I want more!" marketing of the case in the press release.

And you expect someone to wait 2 years for a replacement gun?

Originally Posted by FABIO GETS GOOSED!!!

1923 = presumptively lawful "longstanding regulation" according to Heller 1 and 2.

*buzz* wrong. Heller I never said that at SCOTUS. Heller II (is only applicable in DC) stated it was presumptively lawful as applied to HANDGUNS only. Long guns are still a big question mark, and as you know, the 10 day wait applies to all guns, not just handguns...

Originally Posted by FABIO GETS GOOSED!!!

I was being tongue in cheek there, I don't think the cooling off/ public safety arguments necessarily disappear when it comes to second waiting periods. So scrutiny matters and this case is far from a slam dunk.

Then why don't you find better plaintiffs and file your own case if you think they are doing it wrong?

I'm noticing a disturbing pattern of behavior from you, in the sense that any time Don Kilmer files a case, you offer non-constructive criticism of it so in public to the point where you question his ability to litigate things properly. This sounds like a personal problem rather than a professional one for you. Out with it, man. Did he run over your puppy when you were a kid or something?

[FABIO GETS GOOSED!!!]

Originally Posted by hoffmang

You keep forgetting that the burden is on the state to prove that they have any interest here.

As mentioned above the cooling off/public safety arguments do not go away. "Presumptively lawful" under Heller 2 doesn't help either. Nor does the de minimis burden/no burden.

This is a slam dunk under the Ezell standard.

If you really believe that you're dreaming. In Ezell there actually was a burden on the core right to possess firearms for self-defense so severe that it amounted to a prohibition. Factually there is no comparison and Ezell affirms the "the farther away from the core, the less severe the burden, the easier to justify the regulation." You still need burden under the "two-part approach" approved by Ezell to get heightened scrutiny in the first place.

Curious, why did you go with "I've already got functional loaded guns so the 10 day wait doesn't affect my exercise of the core right at all" over "my gun got stolen and having to wait ten days seriously burdens my exercise of the core right"?

[hoffmang]

Originally Posted by FABIO GETS GOOSED!!!

As mentioned above the cooling off/public safety arguments do not go away. "Presumptively lawful" under Heller 2 doesn't help either. Nor does the de minimis burden/no burden.

You keep saying it's a gun owner's burden to justify why the laws are unconstitutional when it's the state's to prove that the restrictions serves a valid public safety reason. "As mentioned" above is absolutely nothing that supports the state's regulation.

If you really believe that you're dreaming. In Ezell there actually was a burden on the core right to possess firearms for self-defense so severe that it amounted to a prohibition.

Nope. All the plaintiffs save one in Ezell had completed their training - and the court could care less about the one who was lazy. You keep applying the vacated Nordyke standard to a fundamental right. Your right to read isn't satisfied by just one book - even just one porn magazine.

The government has to show how imposing a 10 day wait on a carry licensee has more than even a rational basis. It doesn't even have that. As such, this is a "no standards of scrutiny" case.

If we treat the right to arms in court the way you're advocating it is no right at all.

-Gene

[taperxz]

Why does a gun need to be stolen? Different guns for different purposes.

A 44 mag which I own may be to large to carry as a concealed carry weapon. Perhaps a small compact one is needed. Perhaps my shotgun is broken and it's the last week of bird season and I need one now before the season ends.

[taperxz]

BTW, since hunting is part of the core right, would that not be an infringement on my right if the 10 day wait prevented a licensed hunter from exercising his right?

[FABIO GETS GOOSED!!!]

I'm noticing a disturbing pattern of behavior from you, in the sense that any time Don Kilmer files a case, you offer non-constructive criticism of it so in public to the point where you question his ability to litigate things properly. This sounds like a personal problem rather than a professional one for you. Out with it, man. Did he run over your puppy when you were a kid or something?

I could care less who is filing what lol. I don't agree with the strategy of filing cases at this point in time where the burden on the core right is de minimis if not nonexistent. Just because the same attorney is involved in Nordyke, Pena, and Sylvester which all fall into this category IMO doesn't make it personal. I don't think the misdemeanor domestic violence case is going to go anywhere but that is not because of the arguments the same attorney is or is not making, it's because I don't think the arguments will be enough to overcome the bad precedent that is pretty much right on point. I haven't even commented here on that case so how does that fit your "any time he files a case" theory?

*buzz* wrong. Heller I never said that at SCOTUS. Heller II (is only applicable in DC) stated it was presumptively lawful as applied to HANDGUNS only. Long guns are still a big question mark, and as you know, the 10 day wait applies to all guns, not just handguns...

So when did we start seeing the presumptively lawful felon in possession laws again? Back in the 1770's?

And you expect someone to wait 2 years for a replacement gun?

So which would you rather see, a plaintiff that doesn't need a replacement gun or a plaintiff who actually does?

[Gray Peterson]

Originally Posted by FABIO GETS GOOSED!!!

Curious, why did you go with "I've already got functional loaded guns so the 10 day wait doesn't affect my exercise of the core right at all" over "my gun got stolen and having to wait ten days seriously burdens my exercise of the core right"?

Because gun owners, even people on this forum, do not tend to post on here that "All of my guns were stolen by a burglar, OMFG" at all.

[FABIO GETS GOOSED!!!]

Originally Posted by Gray Peterson

Because gun owners, even people on this forum, do not tend to post on here that "All of my guns were stolen by a burglar, OMFG" at all.

I guess you guys have no other way of finding plaintiffs than waiting for someone to post on calguns.net lol.

[Peter.Steele]

Originally Posted by taperxz

Can you articulate theses public safety issues? I would be interested in hearing your thoughts on this.

I'm not saying that the argument is necessarily a correct one, but a guy that owns, for instance, a deer rifle is perhaps not the most equipped for post office rampages. A cooling-off period might prevent him from going on a rampage with a pistol and an autoloading shotgun or rifle.

Now, the reverse side of that is that if he's planning an activity such as this, then no cooling-off period is going to necessarily end his plans, just postpone them by a few days.

(And of course, it's worth mentioning that a guy with a deer rifle, who knows how to use it, is more than likely up to the challenge of just killing a whole bunch of people on his own from a tall building or something.)

[Gray Peterson]

The basic core question:

What is the rational basis for imposing a 10 day waiting period for someone who already owns numerous guns?

[Gray Peterson]

Originally Posted by FABIO GETS GOOSED!!!

I guess you guys have no other way of finding plaintiffs than waiting for someone to post on calguns.net lol.

"you guys"?

Be careful attacking the educative volunteer who has no control over the litigation strategy of CGF and is not a board member. I was offering a possible reason why they couldn't find one, not that was necessarily the reason why.

[wildhawker]

See, legislative intent and post hoc rationalization.