News

This is the third in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
We now move forward in our series on the pending appeal in Silvester v. Harris, focusing on our Plaintiffs’/Appellees’ answering brief.  Defendant/Appellant California Attorney General Kamala Harris had her chance to explain why she believes the original ruling in favor of Second Amendment rights should be overturned, and now it's our turn to respond.
DEFENDANT KAMALA HARRIS LOST FOR A REASON AND CANNOT RE-TRY THE CASE ON APPEAL
[caption id="attachment_2496" align="alignleft" width="176"] Plaintiff Jeff Silvester[/caption]
When an appellate court (such as the Ninth Circuit) hears an appeal following a trial -- such as in the case of Silvester -- it is important to remember that the court generally reviews the legal, not factual, decisions of the lower court.
An appeal following a trial is not a "do-over" of the entire trial; unless the appellate court finds that the lower court made a “clear error,” it will generally accept the lower court’s findings of fact as true.
In our answering brief, we spend a significant amount time patiently pointing out the District Court’s findings of fact and conclusions of law that Harris’ opening brief [conveniently] ignores.
In this case, the Ninth Circuit should be mainly interested in deciding whether the lower court was correct in its legal reasoning as applied to the facts of the case.  Absent “clear error,” it should refuse to “re-weigh the evidence and overturn the district court’s evidentiary determinations – in effect . . . substitut[ing] [its] discretion for that of the district court.”

FACT – DOJ’S BACKGROUND CHECK SYSTEM IS LARGELY AUTOMATED AND REGARDED AS RELIABLE
As you may remember, Harris attempted to argue both that the background check system was too unreliable to trust and that DOJ often ran the same check multiple times, only finding prohibiting information later in the 10 day wait.  However, the district court found a number of contrary [and vital] facts:

• Upwards of 99% of all DROS applications are approved by DOJ


• [A]pproximately 20% of all applications are auto-approved


• Auto-approvals can occur as quickly as one minute, but probably in less than an hour


• Two additional safeguards work hand-in-hand with the databases discussed above to prevent prohibited persons from possessing firearms. . . . the Armed and Prohibited Persons System (‘APPS’) . . . [and] the ‘rap back’ service


• [T]he record contains no evidence whatsoever that the 10-day waiting period was established to allow time for post-approval reporting (i.e. for DOJ to run multiple checks “just in case” a purchaser becomes prohibited on Day 6)


• Law enforcement officers throughout California rely on the AFS database in performing their work


• If a gun owner with a gun in the AFS system becomes prohibited and the APPS law is followed, their name will appear in the APPS database to notify DOJ that their gun should be retrieved

FACT – THE WAITING PERIOD LAWS ARE NOT “LONGSTANDING”
In her opening brief, Harris attempted to twist the language of Heller and subsequent case law to create a new exemption to the Second Amendment.  While they did attempt – unconvincingly – to tie the WPL into “conditions on the commercial sale of arms” and prohibitions against possession by felons and the mentally ill, their major thrust was to attempt to paint the WPL as “longstanding” and then create a broad Second Amendment exemption for all “longstanding” gun laws.
Under their proposed standard, virtually any gun law in existence for more than a few decades in more than a couple of states would be presumptively lawful and outside of the scope of the Second Amendment.  However, that view was not and is not consistent with the law. As our brief argues:

This is a misreading of Heller. The Court did not create a constitutional safe harbor for “presumptively lawful” regulatory measures unmoored to searching historical analysis. . . . Thus, each firearms regulation (even “presumptively lawful” ones) must be judged based on its “historical justifications” to determine whether it falls within the scope of the Second Amendment right. To this end, Heller instructs that historical analysis of the scope of the Second Amendment is judged against the “public understanding” in the period after ratification through the end of the 19th century.

FACT – THE WAITING PERIOD LAWS LACK A “REASONABLE FIT” TO THE STATE’S INTERESTS, AND VIOLATES THE SECOND AMENDMENT AS APPLIED TO THE THREE CLASSES OF GUN OWNERS IN THE DISTRICT COURT DECISION
After we address the procedural issues and proper application of the law on appeal, our brief turns to the core of the case: When applied to people whom the State knows to already own guns, or have gun licenses like a license to carry guns (“CCW”), and after the firearm buyer/transferee passes the mandatory background check, the Waiting Period Laws simply cannot meet constitutional muster.
Even under the deferential theory offered by the cited cases in Harris’ opening brief, many based on First Amendment caselaw, “intermediate scrutiny” still requires that the law in question be a “reasonable fit” to the State’s important objective.  Harris largely ignores this legal principle, despite (or because of) the fact that it is the central issue in Silvester.
In order to prevail on appeal, Harris would have had to show that the District Court was clearly wrong in its application of intermediate scrutiny, and that the Waiting Period Laws -- again, as applied to the three classes of law-abiding gun owners -- are “narrowly tailored,” i.e. “the regulation must not be substantially broader than necessary to achieve the government’s interest.”  In order to do so, the “government may not rely on ‘anecdote and supposition,’” nor may the Waiting Period Laws stand “if it provides only ineffective or remote support for the government’s purpose.”
As stated in our answering brief:

Indeed, the State argues as if the “reasonable fit” test is indistinguishable from a rational basis test, complaining that the District Court should have “accept[ed] that a reasonable legislature could believe” that the WPL reduced handgun violence based on the evidence at trial . . . But Heller emphatically instructed that rational basis is not the standard for reviewing Second Amendment claims. . . . Thus, while the State may have leeway in marshaling evidence in identifying a “substantial government interest” and tailoring a regulation to serve such an interest, the government is not afforded the same leeway when it relies on evidence to develop a (hypothetical) rationale after the fact to establish a “reasonable fit.”
In any event, the District Court here did consider nearly all of the studies submitted by the State and determined that they did not establish a reasonable fit. The State simply wants a retrial on appeal.

(Internal citations omitted.) (Emphasis added.)
CONCLUSION
We realize that gun owners often feel frustrated by the slow pace of the courts and, sometimes, by what we would argue are wrongly-decided outcomes.  Legal procedures can be complicated and strange, and at times it might seem that some judges simply make up whatever they think should be the rule in order to ensure that gun control laws stay in place -- regardless of how flawed those laws may be.
However, it is important to remember that Silvester is a perfect example of the lower court getting it right.  Our answering brief does the critical job of showing how and why we prevailed, and why we should prevail again at the Ninth Circuit.  It reinforces the well-reasoned and legally-sound ruling of U.S. District Court Judge Anthony Ishii and shows Harris defense of the Waiting Period Laws for what it is – legally, factually, and constitutionally wrong.
Silvester has been a long, expensive -- and successful -- fight for your Second Amendment rights.  If you support the case and our hard work to restore freedom in California, we’d ask that you please make a donation to CGF today.

Stay tuned for Part 4, where we’ll review the two pro-gun amicus briefs filed in the case!

Part I: The State’s Opening Brief

Part II: The Amici in Support of California

This is the second in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
Background for clarity: Amicus curiae (plural: amici) is Latin for "friend of the court."  As explained by the Cornell University Law School Legal Information Institute, “Frequently, a person or group who is not a party to a lawsuit, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court's decision.”  This article explores the amici in support of (ISO) Defendant/Appellant Attorney General Kamala Harris.
BRADY, EVERYTOWN, AND THE ARTIST FORMERLY KNOWN AS LCAV
Following Harris’ opening brief, three amici --  the Brady Center to Prevent Gun Violence, Everytown for Gun Safety, and the Law Center To Prevent Gun Violence -- each filed briefs in support of Harris and reversal of the District Court’s decision that found California’s 10-day waiting period laws (WPL) unconstitutional as applied to three classes of people. (If you’re needing to catch up on what happened in the case and why, visit our Silvester v. Harris case web page.)
Covering all three briefs is relatively simple, because all three briefs largely make the same arguments:

• The WPL are “longstanding” and therefore presumptively lawful;


• The WPL regulate the “commercial sale of arms” and are therefore presumptively lawful;


• Even if the WPL were not presumptively lawful, they relate to an “important government interest” – public safety – and therefore survive intermediate scrutiny.

WPL ARE “LONGSTANDING”
The first argument all three briefs make comes from a much-debated footnote in the Supreme Court’s 2008 D.C. v. Heller decision:

Like most rights, the Second Amendment right is not unlimited. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Heller, 128 S.Ct. 2783 (2008) at 2816-2817.
This single passage is the crux of most Second Amendment legal debate today.  The courts are still actively wrestling with the question of how to determine what gun laws are “presumptively lawful” and what laws are unconstitutional infringements.  While we would say the answer is obvious – what part of “shall not be infringed” is unclear? – the reality of Second Amendment litigation is that we have to face arguments that turn on various "dicta" in Heller.
LCPGV and Everytown argue in various ways that the WPL should be considered “longstanding” and presumptively lawful.  (Interestingly, the Brady Center splits from the pack on this issue, arguing that only “prohibitions on the possession of firearms by felons and the mentally ill” are required to be “longstanding.”)
Everytown argues:

[A] dozen states enacted waiting periods in the 1920s and 30s consistent with the Uniform Law Commission’s model legislation, and Congress enacted a waiting period for the District of Columbia. . . . [E]ven the NRA advocated their adoption for the first three-quarters of the 20th century. . . .Given this “historical prevalence,” California’s law is a “longstanding” regulation under Heller.

LCPGV goes further, arguing that the Third Circuit’s analysis should be used, requiring only that a regulation “(1) have existed in some form for a significant period of time, either in a diverse number of jurisdictions or over a significant portion of the population; and (2) be consistent with the traditional regulation of firearms” to be considered “longstanding:”

Waiting period laws like those in effect in California have been enacted in ten states . . . Moreover, waiting period laws also apply to approximately one-third of the national population as of the 2010 census . . . The widespread passage of waiting period laws over the last century demonstrates that these laws have been generally accepted in a wide array of jurisdictions over a significant period of time and therefore should be considered “longstanding.”

Under this view, unusually-strict gun control laws passed by a minority of states within the past 80 or so years masquerade as “longstanding” and “presumptively lawful” instead of the uncommon and unconstitutional infringements that they are.
THE WPL REGULATE THE COMMERCIAL SALE OF ARMS
The next argument is vitally important.  Under these groups’ views, any law “imposing conditions and qualifications on the commercial sale of arms” is a “presumptively lawful” regulation under the dicta of Heller.  This category, generally understood to refer to rules governing licensing of FFLs or transfers of firearms, is twisted by the amici to cover any law relating to the sale of firearms.  Under their argument, even a complete ban on the sale of handguns would apparently be “presumptively lawful” so long as private possession were not banned.
As the Brady Campaign so simply puts it:

[S]ince the Waiting Period is a “presumptively lawful” condition on commercial sales of firearms, it should be upheld without further scrutiny of any type.

THE “2A TWO-STEP”
Finally, we come to a recurring argument of gun prohibitionists that is so prevalent in litigation, Second Amendment advocates call it the “2A Two-Step” or “post-Heller Two-Step.”  In this perverse interpretation of the Second Amendment, they first argue that, since the “core” of the Second Amendment is the right to keep and bear arms for self-defense within the home, any law that does not directly destroy the ability of a person to defend themselves within their own home is reviewed under the lesser of the forms of heightened judicial review, “intermediate scrutiny.”
“Scrutiny” levels are a legal concept that is beyond the scope of this article, but generally speaking, in order for a law to pass intermediate scrutiny, “the challenged law must further an important government interest by means that are substantially related to that interest.”  Notably, intermediate scrutiny generally requires a showing (evidence) going to the law’s tailoring and fit with the stated interest.
However, under the “post-Heller Two-Step,” the government first argues that “public safety” (or, sometimes more explicitly, “reducing gun violence”) is a “substantial interest” of the government.  From there, it argues that any law they claim to further public safety is a “good enough” fit with the interest (nevermind evidence), and is therefore constitutional.  (For more on the Two-Step, read this brief to the Supreme Court.)
Under this improper application of “intermediate scrutiny,” any gun control law short of a total ban on the possession of firearms in homes by law-abiding people would be constitutional...because the government says it is.
CONCLUSION
Interestingly enough, the amici in this case are more interested in the procedural discussions of how to evaluate the constitutionality of gun control laws than they are with the actual waiting period laws.  Unlike Harris, who spent a large portion of her opening brief arguing about the hypothetical evils she thinks will occur if the Ninth Circuit upholds the District Court’s decision holding WPL unconstitutional, the amici in support of Harris spend the majority of their arguments discussing scrutiny standards and the definitions of terms.  It’s almost like they think the Second Amendment is a second-class right…
Thanks for following our series on Silvester v. Harris.  Things get exciting in Part III, where the Plaintiffs/Appellees fire back!
Part I: The Silvester v. Harris (10-Day Waiting Period Case) Appeal – Part I: The State’s Opening Brief

This is the first in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied). Each post will walk through a different aspect of the appeal, beginning with the State’s opening brief at the Ninth Circuit. For more information on the Silvester case prior to appeal, see this Aug. 25, 2014, news release on the District Court’s decision (finding the WPL unconstitutional) and this Nov. 20, 2014, news release on the District Court’s denial of the State’s post-trial motions.
THE DISTRICT COURT’S DECISION BEING APPEALED
Silvester v. Harris is a federal civil rights lawsuit that challenges the State of California’s 10-day waiting period laws (“WPL”) as unconstitutional under the Second and Fourteenth Amendments to the United States Constitution. (Because the Court found the WPL to violate Second Amendment rights, it declined to rule on the Fourteenth Amendment claims.) The plaintiffs in the case are gun rights groups The Calguns Foundation and Second Amendment Foundation, and individuals Jeffrey Silvester and Brandon Combs. The defendant is California Attorney General Kamala Harris.
On August 25 of last year, Judge Anthony Ishii of the United States District Court for the Eastern District of California released his decision after a bench trial, holding that the WPL is unconstitutional as-applied to three classes (“groups”) of law-abiding people: “individuals who successfully pass the BFEC/standard background check prior to 10 days and who are in lawful possession of an additional firearm as confirmed by the AFS system,” “individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess a valid CCW license issued pursuant to California Penal Code § 26150 or § 26155,” and, “individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess both a valid COE issued pursuant to California Penal Code § 26710 and a firearm as confirmed by the AFS system.”

DOJ’S POST-JUDGMENT MOTIONS
Defendant Attorney General Kamala Harris filed a request to alter or amend the judgment on September 22, 2014, an appeal to the Ninth Circuit Court of Appeals not quite a month later on September 24, and a request for stay pending appeal a few days later on September 29th. Judge Ishii rejected their motions to stay and/or alter the judgment on November 20, 2014, finding that the State had not shown sufficient irreparable harm would be caused by complying with the order, especially when weighed against the irreparable harm being done to gun owners while their rights are being infringed upon.
The State’s appeal is going forward before the U.S. Court of Appeals for the Ninth Circuit.  Harris filed her Opening Brief on March 25, 2015, and it’s that brief – and the arguments contained within – that we’re going to look at today.
APPELLANT’S OPENING BRIEF – LEGAL THEORY

Hypothetical Frontiersmen
The Attorney General begins her argument with a hypothetical look at American history.  According to Harris, the Founding Fathers would have been used to a slower “pace of life” in the Founding Era and, therefore, really wouldn’t have minded a waiting period.  In their view, the impossibility of an act in the 1700s justifies arbitrary restrictions in the 2000s.  Because “[m]ost people lived on isolated family farms, a day’s horseback ride away from the nearest store, which may or may not have carried firearms and which store was typically closed during the entire harvest season,” therefore a second waiting period is justifiable today.  Taking the legal concept of interpreting the Second Amendment as it would have been understood to the Founders, the State concludes that the Founders would not have viewed the Second Amendment as guaranteeing “instant” access to firearms, let alone “instant” access to multiple firearms.

“Longstanding” Regulations
Harris continues on into a recurring argument amongst gun prohibitionists, taking a single line from the Heller decision and interpreting it to protect virtually any gun law in existence more than a few years.

[B]y virtue of being more than 90 years old, and representative of numerous other firearm waiting-period laws, the Waiting-Period Laws must also be seen as “longstanding” under Heller—and for that reason, as well, presumptively lawful.

Further, she argues that, although “only ten states impose a waiting period,” “10 states is a significant fraction . . . of all states, and reflects fairly widespread acceptance of waiting-period laws.”
In the State’s view, if a policy has been enacted by more than a handful of states for more than a handful of years, it should be “bootstrapped” into constitutionality merely by existing in some places for some period of time.

Raging Hypotheticals – DOJ’s Nightmarish Future
Moving forward, California moves into the “meat” of the brief – its hypothetical future full of law-abiding criminals-in-training taking advantage of administrative and regulatory processes to wreak havoc on the unsuspecting masses.

[W]aiting-period laws tend to inhibit firearm violence even by people who at one time in the past were known to have firearms. A person’s firearms may be broken, loaned out, lost, stolen, or lacking in ammunition. Also, a gun owner or his or her family member could surrender his or her firearms to law enforcement authorities while the gun owner seeks mental health treatment, and BOF via its databases would not necessarily know of the situation. Additionally, a person who already owns firearms may choose to acquire new or additional firearms to commit acts of violence more effectively or heinously.  Just like first-time firearm buyers, the people in these situations could not commit acts of firearm violence (or could commit only less deadly acts of firearm violence) without new firearms, making it worthwhile for Appellant to delay delivering firearms to all people subject to the Waiting Period Laws.

(Internal citations omitted)
In the Attorney General’s estimation, absent a 10 day waiting period, current gun owners might receive a mental health hold, surrender their firearms to law enforcement, rush down to their local gun store, buy a rifle (beating the DOJ BOF’s database updates), and go on to kill themselves or others.  Harris expresses her grave concern over the possibility that someone will pass a background check on Day 1, only to fail it on Day 10.
THE THREAT OF CCW LICENSEES
Finally, Harris explains what “errors” of fact or law she believes the District Court made in issuing its prior decision.  According to Harris, CCW licensees and holders of COEs are violent potential psychopaths just waiting for a bureaucratic loophole to unleash their inner demons.
Harris argues that, “[t]here is no evidentiary basis for finding that CCW permit holders are unlikely to be violently impulsive, or are likely to be deliberative and reflective about firearm use, or are unlikely to engage in straw purchases.”  In reality, some studies have found CCW licensees notably less likely to commit a gun-related crime than even active law enforcement officers.  (Many studies have shown that carry licensees are some of the safest and conscientious people around.)
Harris goes even further, imagining a scenario where CCW licensees and holders of a COE realize that they are able to instantly pass background checks and scheme to sell their privileged status to others as ‘preferred straw purchasers’:

It is reasonable to assume that, under the final judgment, there will emerge a certain group of subsequent purchasers who are routinely auto-approved for firearm purchases, and thus are able to obtain firearms very quickly. These people likely will come to recognize their “favored” status in firearm transactions. They will have natural incentives to become straw purchasers for the many other people who, even though legally permitted to obtain firearms, otherwise would have to wait at least several days for CIS Analysts to conduct their background checks manually and approve the purchases. There likely will be an increase in the number of illicit straw purchases, and California will have ever-less accurate and complete records about which people purchased which firearms.

CONCLUSION
The State of California, through defendant Attorney General Kamala Harris, is desperately trying to provide a justification, any justification, for imposing an unnecessary and continuing burden on law-abiding gun owners.  To do so, they have been forced to hypothesize increasingly-unlikely scenarios where law abiding gun owners – even those in possession of a CCW or a COE – fall into illegality, yet would have been stopped by a full 10-day wait.
You can read all of the appeal filings at the dedicated Silvester v. Harris case website.

March 6, 2015 (SACRAMENTO, CA) — A number of California firearm retailers are firing back in a federal civil rights lawsuit against Attorney General Kamala Harris and the State’s Department of Justice.
The case was filed last November after the DOJ cited a Tracy, California gun dealer for having pictures of handguns in his store’s windows in violation of Penal Code section 26820. Plaintiffs include Tracy Rifle and Pistol, Sacramento Black Rifle, Ten Percent Firearms, PRK Arms, and Imbert & Smithers.
The plaintiffs say that the law, passed in 1923, is a ban on constitutionally-protected speech — speech that the dealers believe is protected under the First Amendment.
In a recent court filing opposing the challenge, the Attorney General argued that “California has a substantial interest in decreasing handgun violence and [Penal Code] section 26820 directly advances that interest by dampening demand for emotion-driven impulse purchases of handguns.”
“Typically the government is less upfront about its desire to use speech restrictions for other policy goals,” attorneys for the gun dealers said in their reply brief.

The gun retailers’ brief went on to say that, “At bottom, the Attorney General thinks that people’s exercise of their Second Amendment rights is unwise and dangerous. As a result, the Attorney General would like people not to exercise those constitutional rights, much as the Virginia Legislature did in Bigelow v. Virginia…when it restricted advertising for abortions.”
The Virginia abortion advertising ban was struck down in 1975 by the United States Supreme Court.
“The Attorney General might prefer a world without handguns and an Orwellian ban on Second Amendment-related speech, but the Supreme Court has told us the government can’t use speech restrictions to chill the exercise of other fundamental rights,” commented Brandon Combs, president of California Association of Federal Firearms Licensees, the state’s firearm industry association.
Tracy Rifle and Pistol owner Michael Baryla added: “The First Amendment prevents the government from muzzling citizens and businesses that government officials don’t approve of.  This speech ban should be struck down.”
Quipped Baryla, “Ms. Harris’ heavy-handed attacks on our free speech don’t seem like very ‘liberal’ policies to me at all.”
The plaintiffs’ pending motion for preliminary injunction against the statute is scheduled to be heard by U.S. District Court Judge Troy L. Nunley at 2 p.m. on March 12, 2015, in Courtroom 2 (15th floor) at the Robert T. Matsui United States Courthouse, 501 I Street, Sacramento, CA 95814.
Case documents for Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. can be viewed at calgunsfoundation.org/litigation/trap-v-harris.

 

February 26, 2015 (SACRAMENTO, CA) -- In response to a federal district court decision released today on the constitutionality of the State of California’s “Unsafe Handgun Act” handgun roster and microstamping laws, The Calguns Foundation released the following statement:

“We are disappointed that the district court sidestepped a clear violation of Second Amendment civil rights in its decision today. However, we are absolutely committed to litigating this case as far as necessary to reverse this incorrect ruling and restore the right to keep and bear modern handguns in the Golden State.

It is difficult to understand how the Supreme Court’s landmark District of Columbia v. Heller decision could be so badly mis-applied. Laws that ban law-abiding people from acquiring virtually all modern handguns following a rigorous background check have no constitutional basis and must be overturned.

It is utterly preposterous that a Federal Court would rule that a ban on all new semi-automatic handguns does not burden Second Amendment rights. Such a decision conflicts with Ninth Circuit precedent, much less the Supreme Court’s holdings in Heller and McDonald v. Chicago.

Our counsel have already appealed the ruling to the Ninth Circuit Court of Appeals and will take every action necessary to create a successful outcome there.”

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.

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Media Contact:

Brandon Combs
(800) 556-2109

[email protected]