Judge: Gun waiting period 'burdens' 2nd Amendment

Possession of firearm necessary prerequisite to exercising right to bear arms'

By Bob Unruh - 12/13/2013

A federal judge in California has ruled in a Second Amendment case that a state-imposed waiting period to take possession of a firearm is a burden on the constitutional right to keep and bear arms.

The ruling came in a challenge brought by the Second Amendment Foundation to the state�s mandatory 10-day waiting period to obtain firearms. The case, Silvester v. Harris, continues.

It was Senior Judge Anthony Ishii of the U.S. District Court for the Eastern District of California who said in an 11-page decision that California Attorney General Kamala Harris argues that the WPL (Waiting Period Law) is a minor burden on the Second Amendment, [but] plaintiffs are correct that this is a tacit acknowledgement that a protected Second Amendment right is burdened. He wrote: The court concludes that the WPL burdens the Second Amendment right to keep and bear arms. Alan Gottlieb, SAF executive vice president, said the statement is important.

Judge Ishii's comparison of the waiting period to a prior restraint is significant, Gottlieb said. He further stated that Harris, in her motion to dismiss the case, had not shown that the waiting period law is effective in reducing gun-related violent crime, or in keeping guns out of the wrong hands where the government has already issued that purchaser a License To Carry or a Certificate Of Eligibility.

Also in the argument was Calguns, the state firearms advocacy organization. Chairman Gene Hoffman said it is refreshing to see lower federal courts taking the burden of intermediate scrutiny or strict scrutiny seriously.

California has such a byzantine scheme of gun control that it can't justify making people who already own firearms registered with the state of California wait 10 days to buy a new gun after they complete a background check, Hoffman said. We look forward to bringing some common sense back to how the law-abiding buy and sell registered guns in California.

An argument for armed self-defense, in America Fights Back: Armed Self-Defense in a Violent Age.

The judge also noted that there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm.

Gottlieb said the judge wisely concluded, as did Martin Luther King Jr., that a right delayed is a right denied.

The organization has taken on numerous gun-rights cases since the U.S. Supreme Court in two decisions, the Heller and McDonald cases, ruled that the Second Amendment applies to individuals, not just militias such as a national guard, and also is extended to states.

For example, the organization recently wrote to a judge in Washington, D.C., challenging him to decide a case that has been pending since 2009. That case, before the U.S. District Court of Appeals for the District of Columbia, is over the right to carry a handgun for protection.

The Second Amendment states: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

SAF also has worked to publicize the details behind former New York Mayor Michael Bloomberg's Mayors Against Illegal Guns organization, which was revealed to include a long list of mayors who, because of their convictions, were no longer eligible to own weapons themselves.

Another embarrassment surfaced for the organization.

According to a report from the Second Amendment Foundation, Mayor James Schiliro of Marcus Hook, Pa., faced a long list of charges for allegedly trying to force an underage boy to perform sex acts and then firing a handgun at a wall when the boy refused.

Mayor Schiliro is one more example of why we started the Detroit Mayor Kwame Kilpatrick, and recently indicted former New Orleans Mayor Ray Nagin, both of whom were MAIG members.

SAF launched its campaign last fall, and the list keeps growing, Gottlieb said.

The mayors' group boasts that it has grown to more than 725 mayors in 40 states. But SAF is publicizing mayors who have run into their own troubles.

It launched its campaign in newspapers, magazines and on the Internet, revealing the criminal and ethical wrongdoings of many of the mayors themselves.

The organization also has been acting largely under the radar to fight unconstitutional firearms restrictions across the nation. Recently, it won its request for preliminary injunction from District Judge M. Christina Armijo in New Mexico, who took action in the case of John Jackson, a permanent legal resident alien who could not obtain a concealed carry permit in the state.

The organization also announced it has filed a motion for injunctive relief in a related case in Nebraska. There, non-citizens legally living in the state are prohibited from obtaining a concealed-carry permit.