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Gun Rights Lawsuit Heating Up: California Ordered to Respond, Multiple Briefs Filed in Support of 10-Day Waiting Period Petitioners
A Second Amendment lawsuit out of California is drawing attention at the Supreme Court and support from multiple groups, said gun rights group The Calguns Foundation, which joined Second Amendment Foundation and two individuals on a petition in September seeking the Court’s review of a Ninth Circuit ruling that upheld the state’s 10-day waiting period laws when they are enforced against law-abiding gun owners after they pass a rigorous background check.
Last month, the respondent California Attorney General Xavier Becerra waived his right to reply to the petition. But on September 29 the Supreme Court ordered the State to reply; on October 24, the Court granted the State of California an extension of time to file that reply, making the new deadline December 1. Adding support for the case, multiple briefs have been filed in support of the petitioners, encouraging the Supreme Court to grant review and overturn the Ninth Circuit’s ruling.
In a brief authored by preeminent constitutional scholars Ilya Shapiro and Trevor Burrus, the Washington, D.C.-based think tank Cato Institute presented a strong case for the Court to grant certiorari. The brief argues, among other things, that intermediate scrutiny “means something different in almost every circuit [court of appeal] when applied to the Second Amendment” and that the Ninth Circuit “abused petitioners’ fundamental rights by misapplying intermediate scrutiny.”
And in another brief, former California Deputy Attorney General Raymond M. DiGuiseppe argued on behalf of a coalition of Second Amendment advocacy groups—including Firearms Policy Coalition, Firearms Policy Foundation, Gun Owners of California, and Madison Society Foundation—that Supreme Court review is necessary in this case “to reestablish the rule of law and halt the trend of judicial obstructionism” that is “jeopardizing” the constitutional protections of the Second Amendment. “This is not the first time the Ninth Circuit has played ‘fast and loose’ with the Court’s Second Amendment jurisprudence to fend off constitutional claims – nor will it be the last if this Court does not step in,” the brief said.
Attorneys Douglas A. Applegate and George M. Lee of the San Francisco-based law firm Seiler Epstein Ziegler & Applegate LLP filed a brief for the Crime Prevention Research Center, a research and education organization led by the renowned economist Dr. John Lott, arguing that “the standards applied by the lower courts vary widely” and that “the Ninth Circuit reversed the evidentiary findings of the trial court and supplanted the evidence that the trial court received and weighed with its own non-empirical views of what it thought was reasonable.”
“We are pleased that other groups have recognized the serious flaws in the Ninth Circuit’s approach,” explained Erik S. Jaffe, the petitioners’ Supreme Court counsel. “The results-driven analysis in the opinion below not only does violence to the Second Amendment, but does violence to the rule of law and respect for the courts. We are hopeful that the Justices, whatever their views on the scope of the Second Amendment, will recognize that the decision below is well out of bounds of any reasonable reading of Supreme Court precedent or standards for intermediate scrutiny and will take the necessary steps to ensure the fair administration of justice in Second Amendment cases.”
In 2014, Federal District Court Judge Anthony W. Ishii—nominated to the bench by then-President Clinton—held that California’s waiting period laws were unconstitutional as applied to three categories of gun purchasers after undertaking significant discovery, depositions, and a three-day bench trial.
But in 2016, the United States Court of Appeals for the Ninth Circuit bizarrely ruled that even a person legally carrying a concealed handgun as he buys another gun at retail, and who passes a further background check, needs to be “cooled off” for another 10 days before exercising his Second Amendment rights and taking possession of a constitutionally-protected firearm.
Brandon Combs, an individual plaintiff in the case as well as the executive director of institutional plaintiff The Calguns Foundation, said that the briefs made excellent arguments and further supported the petition for review. “The Supreme Court has everything that it needs in a case with an excellent trial record teed up here to save the Second Amendment from hostile lower courts.”
“We are grateful to these amici organizations and their counsel for their support of this case and standing up for constitutional principles,” concluded Combs.
A copy of the Silvester petition to the Supreme Court and the amicus briefs can be viewed or downloaded at https://www.calgunsfoundation.org/silvester.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.
Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
Attorney Erik S. Jaffe (www.esjpc.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship, he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and has been a sole practitioner since 1997. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 60 amicus briefs at both the cert. and merits stages.
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