Silvester v. Harris - CA 10 Day Waiting Period

[Al Norris]

After two years, there is finally something to report.

As Librarian reported (in the 2A Current Cases thread), the CA DOJ has lost it's bid in a Motion for Summary Judgment.

Using the newly implemented standard in the 9th Circuit (Choven, a case in which the 9th Circuit adopted the two step process being used in several Circuits), the Judge, after summarizing the arguments of both sides, declared that the DOJ did not meet the burden of positive evidence that the waiting period was justified.

From the decision:

Harris moves for summary judgment on each of the claims alleged by Plaintiffs. With respect to the Second Amendment claims, Harris has not sufficiently met her burden. Harris has not presented sufficient evidence to show that the WPL passes either intermediate or strict scrutiny for either the “background check” rationale or the “cooling off period” rationale. With respect to the Equal Protection claims, Harris has focused exclusively on rational basis scrutiny. However, Harris has not adequately demonstrated that rational basis scrutiny is appropriate. Therefore, Harris’s motion for summary judgment will be denied in its entirety.

ORDER

Accordingly, IT IS HEREBY ORDERED that Defendant’s motion for summary judgment is DENIED.

Actually, the CA DOJ offered no evidence whatsoever. Only unsupported supposition. The Judge made the correct call (which in itself is remarkable for a CA District Judge appointed by Clinton).

The Plaintiffs, did not make a counter MSJ, so the case is essentially at a point where dispositive motions should be getting ready to be filed. Discovery (which has lasted for months) is nearly over... For practical purposes, it is over. Only wrangling over "expert testimony" remains.

While this is certainly good news, it is only a first step. What remains is for the CA DOJ to prove that the "Cooling Off" period is a rational reason to hinder gun rights, most especially to those who already own firearms. The CA DOJ must also offer some rational reason that the Background Checks should take a full 10 days. Fact is, after making a rational argument, CA needs to go further and show how this is an important reason and then, that the chosen method effects that reason (the premise behind intermediate scrutiny). That is essentially what the judge has said.

Looking at the language of the decision, this Judge is fully aware that a "Rational Basis" scrutiny, cloaked as "Intermediate" scrutiny, will not save them. This is important, as it sounds more like Judge Legg (Woollard), than normal (or what has passed as "normal"). If I'm reading what the judge said, correctly, he is implying that a higher level of "intermediate" scrutiny will apply, if not quite "Strict" scrutiny. Those are words from Ezell.

Now... Do you want to see a fly in the ointment? Read the press release by the CalGuns Foundation: http://www.calgunsfoundation.org/201...ng-period-ban/

This press release is entirely misleading, at best. It great that the judge knocked down the DOJ's motion. But the press release simply reiterates the Judges own summary of the arguments and does not side with the Plaintiffs, at this point in time.

Yes, we need to give people hope. But do we need to stoop to the level of our opponents?

There is still the prospect that the CA DOJ will appeal this decision. So I suspect that nothing more will be moving in this case, until after the 45 day period for filing, passes.

In other news, see this, from the Volokh Conspiracy: 10-Day Gun Waiting Period Potentially Unconstitutional