Wednesday, December 11, 2013

Interesting Decision Concerning California's Ten Day Waiting Period For Guns

The decision is Silvester v. Harris (E.D.Cal. 2013).  This is not a final decision, but really a decision about whether California Attorney-General Kamala Harris is likely to prevail at trial with her claim that California's ten day waiting period law (WPL) for gun purchases does not violate the Second Amendment.  While the judge ruled that a waiting period law is not intrinsically a violation of the Second Amendment, Harris has to provide some evidence that it accomplishes some legitimate function:
When a fundamental right is burdened, rational basis scrutiny does not apply. See Nordlinger, 505 U.S. at 10; Silveira, 312 F.3d at 1087. Contrary to Harris’s argument, Harris has not established that the WPL does not burden the Second Amendment right to keep and bear arms. As explained above, Harris did not show that the WPL passes either intermediate or strict scrutiny. Because Harris’s arguments do not show that rational basis review is appropriate, Harris has not adequately met her initial burden. Summary judgment on the Equal Protection claims is inappropriate.

No comments: