Richards v Bonta 2023- challenge 10-day wait

[TruOil]

Gun rights advocates renew legal fight over California?s 10-day wait for firearm buyers


For those not familiar with the Chevron Deference (or Chevron Doctrine), you can look it up... Here.

The Chevron defense applies to administrative regulations. The ten day rule is a statute. Therefore the Chevron rule does not apply.

[JiuJitsu]

Yep, great stuff.

These recent and thorough compilations of historical weapons laws make gun grabbers cry themselves to sleep at night. The bare facts laid out here show there is no significant historical law or widespread American tradition of any of their favorite gun control restrictions.

So now they resort to denying or warping the tests clearly laid out in Heller/Caetano/Bruen, or saying their infringing law doesn?t even implicate the 2A at all, or using a grossly different historical law as a ridiculous ?analogy?. Its both frustrating and hilarious. However, ultimately they will lose.

[Chewy65]

The Chevron defense applies to administrative regulations. The ten day rule is a statute. Therefore the Chevron rule does not apply.

The canon of constitutional avoidance trumps Chevron deference owed to an agency's interpretation of a statute. Kobach v. U.S. Election Assistance Comm'n 6 F. Supp. 3d 1252, 1263 (D. Kan. 2014). Nor are Chevron principles applicable where a substantial constitutional question is raised by an agencies interpretation of a statute it is authorized to construe. Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1105 n. 15 (9th Cir. 2001)

[chris]

Round 2 for 10 day wait. IIRC the previous case was Sylvester V. Harris, which ultimately lost at the 9CA back around (2014?)

I remember that. The argument was for that those who already have firearms have no need for the wait only the first gun purchase.

[DolphinFan]

Yea another piece of low hanging fruit, the 10 day wait.
Since the first step in the new guidance is to see if there is any Text/History/Tradition of a waiting period between 1790-1969.

Since we know, thanks again Rob Bonta for the timeline, the only legal blow during that period was a fire code for the safe storage of black powder, there is no other step to take.
Yeah, it?s almost all unconstitutional now but will take time as it?s challenged through the courts.

What is the penalty for a Jurist, Judge, who doesn?t follow guidance from the highest court in the land?

[ritter]

]
What is the penalty for a Jurist, Judge, who doesn?t follow guidance from the highest court in the land?

Have their opinion vacated/overturned on appeal. The horror, I know.

[ProfChaos]

A lot of great points in the posts above. I did not see any mention of instances where someone being threatened/ in danger sought to buy a gun to protect herself and was ultimately harmed by the threat (ex, stalker, etc.) during the waiting period. This type of argument is emotionally compelling which can be hugely powerful in the court of public opinion, as we se with the anti-gunners? attacks on our liberties.

Does anyone know how statistically compelling this kind of argument is, specifically when weighed against homocides committed by first time buyers? (I live close enough to a tall bridge(s) that I disagree with including suicides in the arithmetic.)

I remember a few stories of people having to wait while they had stalkers/violent ex's who were after them. This is the first one I found.

https://www.foxnews.com/us/no-one-helped-her-nj-woman-murdered-by-ex-while-awaiting-gun-permit

[TrappedinCalifornia]

The Chevron defense applies to administrative regulations. The ten day rule is a statute. Therefore the Chevron rule does not apply.

The canon of constitutional avoidance trumps Chevron deference owed to an agency's interpretation of a statute. Kobach v. U.S. Election Assistance Comm'n 6 F. Supp. 3d 1252, 1263 (D. Kan. 2014). Nor are Chevron principles applicable where a substantial constitutional question is raised by an agencies interpretation of a statute it is authorized to construe. Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1105 n. 15 (9th Cir. 2001)

Um... Perhaps it might be more accurate to say... "Chevron-like deference" or "legislative deference?"

Just like microstamping survived the 9th Circuit due to 'deference'...

...Nor do we substitute our own policy judgment for that of the legislature. Id. When policy disagreements exist in the form of conflicting legislative "evidence," we "owe [the legislature's] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions." Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (internal citations and quotation marks omitted); see also id. ("In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress." (internal quotation marks omitted)). "It is not our function to appraise the wisdom of [California's] decision to require" new semiautomatic gun models manufactured in-state to incorporate new technology; instead, the state "must be allowed a reasonable opportunity to experiment with solutions to admittedlyserious problems." City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 52 (1986). These principles apply equally to benchmarking the efficacy as well as the technological feasibility of the regulations. Therefore, in the face of policy disagreements, or even conflicting legislative evidence, "we must allow the government to select among reasonable alternatives in its policy decisions." Peruta v. Cty. of San Diego, 824 F.3d 919, 944 (9th Cir. 2016) (en banc) (Graber, J., concurring), cert. denied, 137 S. Ct. 1995 (2017); accord Kachalsky v. Cty. of Westchester, 701 F.3d 81, 99 (2d Cir. 2012) (?It is the legislature?s job, not ours, to weigh conflicting evidence and make policy judgments.?)...

In that sense, the "10-days" isn't due to the need for a 'background check;' but, instead, is a 'cooling off' period. Yet, according to the dissent in Silvester...

...California contends that the District Court did not make the kind of "historical or adjudicative" findings that warrant deference. Brief in Opposition 9. But the Federal Rules do not "exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous." Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982). A court of appeals must defer to a district court's factual findings, even when the findings "do not rest on credibility determinations, but are based instead on physical or documentary evidence." Anderson v. Bessemer City, 470 U. S. 564, 574 (1985). In fact, deference is "[p]articularly" appropriate when the issues require familiarity with "principles not usually contained in the general storehouse of knowledge and experience." Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U. S. 605, 610 (1950). And "no broader review is authorized here simply because this is a constitutional case, or because the factual findings at issue may determine the outcome of the case." Maine v. Taylor, 477 U. S. 131, 145 (1986)...

If this case involved one of the Court?s more favored rights, I sincerely doubt we would have denied certiorari. I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State's purported interest in creating a "cooling off" period...

Wasn't that the basis for Judge Strikes Down California 10-Day Waiting Period for Guns in 2014; i.e., calling into question the 'deference?' Isn't that what Circuit Judge Bybee was getting at in his concurrence/dissent in Pena...

...Surprisingly - and perhaps telling - the State has failed to address on appeal Plaintiffs' concerns regarding whether manufacturers can successfully implement microstamping. The majority attempts to fill this void by relying on a form of deference that is inapplicable to the question of whether gun manufacturers can comply with the UHA?s testing protocol. Given the conflict of evidence on this very point, the majority should not conclude that the microstamping requirement survives intermediate scrutiny...

Remember, the 'waiting period' began in 1923 and has varied, several times since. What was the basis for the variance? What objective evidence was introduced to substantiate not only the time needed to do the background check, but that a 'cooling off period' was 'helpful' when a firearm was already owned? Isn't that was Ishii was getting at in Silvester with his repetition of: "There is no data or evidence regarding..." As the 9th Circuit declared...

...The law has remained the same since 1996. Its history demonstrates that the California Legislature has, since 1923, required potential purchasers to wait for some period of time before taking possession of a firearm. The amount of time a purchaser has had to wait has fluctuated, mainly because of the nature of the background check process, but the legislative purpose has always been to allow enough time for background checks. The Legislature made clear in 1996, that it was additionally concerned about the impulsive use of handguns. It thus emphasized that a waiting period also serves as a cooling-off period...

The State had contended that the cooling-off period as applied to Plaintiffs is reasonably suited to a safety objective; waiting ten days may deter subsequent purchasers from buying new weapons that would be better suited for a heinous use. The district court dismissed the State?s argument. The court thereby essentially discounted the dangers inherent in the proliferation of guns, including guns suitable only for use to injure others, such as Saturday night specials or large-capacity guns that have been used in mass shootings. The district court entered judgment for Plaintiffs...

The State is required to show only that the regulation "promotes a substantial government interest that would be achieved less effectively absent the regulation." Fyock,779 F.3d at 1000 (citation and quotation marks omitted). The State has established that there is a reasonable fit between important safety objectives and the application of the WPLs to Plaintiffs in this case. The waiting period provides time not only for a background check, but also for a cooling-off period to deter violence resulting from impulsive purchases of firearms. The State has met its burden...

The problem? The 9th Circuit agreed with the State, but did not show any determination(s) to justify the agreement. In other words, they effectively deferred to the State's arguments while cloaking that deferment in 'scrutiny.' Why? Because such 'agreement' without 'facts' is at the heart of Chevron Deference...

...The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency....

Whether a court directly references "Chevron deference" or uses different nomenclature doesn't really matter in terms of achieving the desired outcome; which stems from a two-part test...

...In the end, Chevron v. NRDC instructed courts to follow a two-part analysis. The first question asks if Chevron deference is appropriate: is the statute genuinely ambiguous? In other words, did Congress actually leave a gap in the statute for an agency to fill? If so, then presumably the agency has the authority to fill it, and a court may proceed to Step 2 of the inquiry.

In Step 2, a court only asks whether the agency's interpretation of the statute is reasonable. If it is, then the agency?s interpretation prevails in the case. The court will not substitute its own judgement of what Congress intended for that of the agency?s...

My reaction stems more from the alternative SCOTUS has been pushing to the Chevron Doctrine; i.e., the Major Questions Doctrine (a limit on Chevron Deference)...

...In the last few decades, the Supreme Court has placed another limitation on the Chevron Doctrine's scope. The "major questions doctrine" holds that courts should not defer to agency statutory interpretations that concern questions of "vast economic or political significance." The Supreme Court justifies this limitation with the non-delegation doctrine. According to the Supreme Court, courts are supposed to interpret "major" legal questions, not administrative bureaucrats...

Thus, while I (may or) may not be using the 'correct' technical name, the gist of my reference is actually (somewhat) sound and, in effect, seems to be part of the Richards v. Bonta case...

...Plaintiffs acknowledge that the relief they seek is contrary to Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016). But Silvester has been abrogated, as Bruen expressly rejected the "two-step" approach used in Silvester to reject a similar challenge to California's Waiting Period laws.

11. California's Waiting Period Laws, and Defendants' enforcement of them, are not analogous to any constitutionally relevant history and tradition of regulating firearms. Thus, the Waiting Period Laws must be declared unconstitutional and enjoined...

What was the two-step approach in Silvester?

...To uphold a regulation under intermediate scrutiny,we have identified two requirements: (1)the government's stated objective must be significant, substantial, or important; and (2) there must be a "reasonable fit" between the challenged regulation and the asserted objective...

Again, what were the "two-steps" as per the Chevron Doctrine: 1.) is the statute ambiguous and (2.) is the agency's interpretation reasonable?

Sounds somewhat similar to a non-legally trained individual in that 'ambiguity' can stem from whether the statute is significant, substantial, or important enough to justify Government intrusion on an enumerated right. Given that Bruen declares...

...Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of "intermediate scrutiny" often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable - and, elsewhere, appropriate - it is not deference that the Constitution demands here...

...The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right...

...I think my original comment...

...Basically, what Bonta's office has done is assemble every gun law they could find and hope that by submitting them, the courts will 'defer' to the 'experts' as they have in the past based on, presumably, Chevron Deference...

...though I may not be technically accurate and the nomenclature may be slightly 'off,' my argument still seems to make a certain intuitive sense (especially in light of my caveat of presumably).

Remember, I am not a lawyer, nor do I play one on TV. Thus, I make no claims and have no illusions regarding proficiency using the nomenclature. So, while the Chevron Doctrine may not, strictly speaking, apply, I think my overall argument still does; especially if we bear in mind that there is the legal battle and the public relations one where, by putting together 96 pages of 'laws' that most in the public will not scrutinize, the State Government can 'claim' that they have 'history on their side' when, in fact, based on the clarification laid out in Bruen, their hand is weaker than that.

[Chewy65]

Trapped in California,

I like your thinking. Nobody else seems to thing it makes sense, but I am looking at the Avoidance Canon of Statutory Construction.

For it to apply you first must determine that a statute's ambiguity lends itself to at least two reasonable interpretations.

Then if one interpretation is viotative of the Constitution and the other is not, you must construe the statate according to the Consttutional construction even if the other seems more in keeping with legislative intent.

However, if the plain text of the statue is not ambiguous you cannot construe it and must apply it according to its plain text even to save it from running avfoul of the Constitution. You have no choice but to declare it a violation of the Constitution and enjoin its enforcement.

[TrappedinCalifornia]

...However, if the plain text of the statue is not ambiguous you cannot construe it and must apply it according to its plain text even to save it from running avfoul of the Constitution. You have no choice but to declare it a violation of the Constitution and enjoin its enforcement.

Your argument hinges on the following...

Constitutional-Doubt Canon. A statute should be interpreted in a way that avoids placing its constitutionality in doubt.

Avoidance Canon (sometimes used interchangeably with above) - If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.

What is the statute in question? According to Richards v Bonta...

...California Penal Code sections 26815 and 27540, and Defendants' regulations, policies, and enforcement practices applying their Waiting Period Laws, impose at least a ten-day ban, as well as other burdens and costs, on the possession of constitutionally protected arms by a legally eligible individual under pain of criminal and other penalties...

Section 26815 and Section 27540 both read fairly unequivocally to my eye; but, readers can be the judge. Let's assume there is no 'ambiguity' in that regard and, therefore, the 9th Circuit was relying on 'deference' rather than 'interpretation.' Such an assumption returns us to the 'deference' accorded by the 9th Circuit in Silvester as I presented in Post #38. Again, to my eye, deference is clearly demonstrated in that the 9th 'agreed' to the claims asserted rather than 'demonstrated.' This leads us back to the Major Questions Doctrine, also presented in Post #38. This leads us to courts being the 'interpreter' or 'arbiter' of "major" legal questions; not administrative bureaucrats or politicians (legislators).

Richards heavily relies on Bruen and, as I said in Post #38, 'ambiguity' can stem from whether the statute is significant, substantial, or important enough to justify Government intrusion on an enumerated right. As stated in Bruen...

...To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified...

Let's assume, for the sake of argument, that the argument in Richards is correct; i.e., "no analogous waiting period laws existed in the constitutionally relevant period." Such an assumption obviates the first metric in that, as was conceded in Silvester, as shown in Post #38, waiting periods did not begin until 1923, technology allows for almost 'instant' background checks, and a 'cooling off period' became the 'major Government interest.'

But, what about the second metric, that regulatory burden is comparably justified? That would bring us to the two-step approach in Silvester?

...To uphold a regulation under intermediate scrutiny,we have identified two requirements: (1) the government's stated objective must be significant, substantial, or important; and (2) there must be a "reasonable fit" between the challenged regulation and the asserted objective...

Just to keep from jumping ahead, let's stipulate that the Government has deemed the 'waiting period' to be 'insignificant' as related to the exercise of the right, declaring it to be an 'insubstantial' inconvenience; both of those being difficult to establish beyond a series 'hypothetical' or 'rare case' scenarios. Thus, the Government is left with 'important,' something the 9th Circuit explicitly acknowledged in Silvester...

...There is accordingly near unanimity in the post-Heller case law that when considering regulations that fall within the scope of the Second Amendment, intermediate scrutiny is appropriate. Most circuits also appear to apply a two-step test similar to ours. The case law in our circuit and our sister circuits thus clearly favors the application of intermediate scrutiny in evaluating the constitutionality of firearms regulations, so long as the regulation burdens to some extent conduct protected by the Second Amendment. Critical to that analysis is identifying an important legislative objective and determining whether the regulation reasonably fits with the objective...

Now, bear in mind that the legal definition of "reasonable fit" is... the regulation must not be substantially broader than necessary to achieve the government's interest.

As shown in Post #38...

...The law has remained the same since 1996. Its history demonstrates that the California Legislature has, since 1923, required potential purchasers to wait for some period of time before taking possession of a firearm. The amount of time a purchaser has had to wait has fluctuated, mainly because of the nature of the background check process, but the legislative purpose has always been to allow enough time for background checks. The Legislature made clear in 1996, that it was additionally concerned about the impulsive use of handguns. It thus emphasized that a waiting period also serves as a cooling-off period...

The State had contended that the cooling-off period as applied to Plaintiffs is reasonably suited to a safety objective; waiting ten days may deter subsequent purchasers from buying new weapons that would be better suited for a heinous use. The district court dismissed the State's argument. The court thereby essentially discounted the dangers inherent in the proliferation of guns, including guns suitable only for use to injure others, such as Saturday night specials or large-capacity guns that have been used in mass shootings. The district court entered judgment for Plaintiffs...

The State is required to show only that the regulation "promotes a substantial government interest that would be achieved less effectively absent the regulation." Fyock,779 F.3d at 1000 (citation and quotation marks omitted). The State has established that there is a reasonable fit between important safety objectives and the application of the WPLs to Plaintiffs in this case. The waiting period provides time not only for a background check, but also for a cooling-off period to deter violence resulting from impulsive purchases of firearms. The State has met its burden...

Thus, according to the 9th's deference, the 'importance' of the waiting period lies in...

• waiting ten days may deter subsequent purchasers from buying new weapons that would be better suited for a heinous use
• the dangers inherent in the proliferation of guns, including guns suitable only for use to injure others
• deter violence resulting from impulsive purchases of firearms

I think the second criteria, "the dangers inherent in the proliferation of guns, including guns suitable only for use to injure others," is a philosophical issue rather than an objective metric and is dealt with by Heller and McDonald in terms of a 'right to keep.' But, what about heinous use and deterring violence from impulsive purchases...

...Kelly Drane, research director at the San Francisco-based Giffords Law Center to Prevent Gun Violence, said Tuesday that "these laws help to prevent impulsive acts of gun violence." She said studies have found that waiting periods reduce gun suicides by 7% to 11% and gun homicides by 17%...

Her reference to "these laws" is directly to waiting periods. Do such numbers signify a 'reasonable fit' to justify the imposition on the Constitutionally-protected right? Here you will get into a battle between statistics and their purveyors. Keeping it simple for this thread, in 2017, the highest number of murders in 'recent' years (that I'm aware of at the moment) with a firearm was reported as 11,014. The U.S. population in 2017 was 325.1 million according to the Census Bureau (which we know is a mathematical calculation).

So, if we were to take the quoted 'maximum' of a 17% reduction, then that would be about 1,873 individuals ostensibly not 'murdered' in 2017.

According to this source...

...In the United States, 47,173 people died in 2017 making suicide the tenth leading cause of death. On average, there are 129 suicides per day, and over 1,179,000 annual attempts. In 2017, firearms accounted for 50.6% of all suicides (Source: American Association of Suicidology)...

If we calculate 50.6% of 47,173, we get 23,870. If we take the maximum number cited of 11%, that means 2,626 individuals 'saved' from suicide.

Adding 1,873 and 2,626, we get 4,499 individuals benefiting from waiting periods as a 'safety objective' in 2017 according to the research director at Giffords. In other words, based on the 9th Circuit's deference, we see a potential 0.00138% of the U.S. population 'saved' by waiting periods in 2017, even with the assumption (a ludicrous one) that ALL of them resulted from the purchase of a new gun which came with a waiting period. Of course, homicides and suicides are only a portion of what could be deemed 'heinous acts,' but the idea gives you a starting point.

What it boils down to is the overall nature of the argument for deference rather than attempting to justify obfuscation of a statute based on 'canons of construction' to get us to a rationalization/justification for obfuscation of the 'waiting periods.' Bear in mind that the above doesn't even look to the debate over whether most firearms used in crimes (which include far more than homicides and suicides) are 'newly purchased' and used to commit the crime in question by the purchaser. What it does do, however, is highlight the histrionics, philosophical predilections, and 'emotion' involved in the deference paid by the courts rather than objective or 'neutral' analysis; not to mention the 'theatrics' that have become involved in protecting our natural rights.

[abinsinia]

ANSWER to 1 Complaint,, by Rob Bonta, Allison Mendoza.(Meyerhoff, Robert) (Entered: 05/23/2023)

It's a very uninteresting filing.

https://storage.courtlistener.com/recap/gov.uscourts.casd.758156/gov.uscourts.casd.758156.6.0.pdf

[Drivedabizness]

They got balls.

[curtisfong]

Can a legal expert explain what "requires no response" means?

How can you not respond, then claim

The Complaint, and the claims for relief alleged therein, fails to state facts sufficient to constitute a cause of action against Defendants.

[Chewy65]

Can a legal expert explain what "requires no response" means?

How can you not respond, then claim

That is legaleze for, even if averything the Complaint claims is true, the doesn't entitle you to butt-kiss.

[Drivedabizness]

Officers of the Court owe a duty of candor.

If a trier of fact finds that one of the parties has mislead the Court, wouldn't that hurt their case under civil rules of procedure? (aka if they lie about one thing they can be presumed to be lying about everything)