BREAKING: California’s 10-Day Waiting Period Overturned…Mostly

“It is hereby ordered that the 10-Day waiting periods of California Penal Code section 26815(a) and section 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the standard BFEC/standard background check prior to 10 days and who are in lawful possession of an additional firearm as confirmed by the AFS system.” That’s the ruling just handed down by the US District Court for the Eastern District of California in Jeff Sylvester et al. v. Kamala Harris, a suit filed by Calguns and the Second Amendment Foundation. What’s more . . .

The ruling also extends to CCW license holders in the Golden State. Both of them. It’s a start, anyway. Exactly how someone who’s passed the specified background check is to demonstrate to the AFS system that he or she owns “an additional firearm” isn’t really clear.

The ruling notes that as in Illinois’ Moore v. Madigan ruling creating a right to carry in Illinois, the state asks the court for a 180-day delay in implementation. We’re not attorneys, but the phrase “The Court finds Moore’s approach to be appropriate” seems to indicate the state gets its stay to figure out how to implement the change. And challenge the ruling. In the mean time, congrats Calguns and SAF.

[h/t DrVino]

comments

  1. avatar Accur81 says:

    Hmmm. So can I just pick up a gun at a dealerships if I’m on record with a previous purchase?

    1. avatar Robert W. says:

      IF the extended CA DOJ background check doesn’t get held up, yes. According to DOJ’s info, you have about a 1/5 chance right now of being accepted within an hour. All others go into a backlog and you probably will have to come back at a later date.

      1. avatar Gene says:

        In my best Carnac voice: What is “everyone gets delayed?”

        1. avatar Robert W. says:

          As much as you know the DOJ would LOVE to do that, they would be getting sued again SOOOOO fast if their proportion of instant acceptances started immediately dropping, or they put in some kind of arbitrary wait to their system, as it would not comply with the judges order.

          So, in the long run, I think we will actually see the DOJ buckle on this one and it will end up exactly as written in the order. If a CA district court isn’t even willing to say that current standards meet INTERMEDIATE scrutiny, it is unlikely that appeal will be accepted by higher courts. Dealing with a strict scrutiny situation, sure, but this is pretty obvious.

    2. avatar rlc2 says:

      Thank you, Calguns and SAF. Heading to the CGF website to hit the tipjar, and now beginning to consider the lifetime membership in SAF worth the investment, when you stick to your strength; funding the most highly qualified attorneys, to guide sympathetic litigants on the right cases, in patient strategic litigation for long term goals. Brick by brick in the wall….

      1. avatar Mr. Pierogie says:

        The NRA could learn a thing or two from the SAF. Seems to me that SAF is the major player in blue states these days, declaring significant victories on behalf of gun owners with just a fraction of NRA’s budget.

        1. avatar JR_in_NC says:

          The NRA is so maligned in those states (ie, people have drunk the anti-NRA Kool Aid) that it might be beneficial that the fight is being conducted by someone else.

          Not saying the NRA should withdraw or anything …

        2. avatar Robert W. says:

          Completely agree with you JR. The NRA has been thrown under the bus here in Cali, from a combination of the kool-aid drinkers and, the worst part, the firearm owners that are just disgruntled because of the point that this state has been allowed to devolve towards.

          I am young (26), but a couple years ago I finally started paying attention to 2A politics, and realized that the NRA is still the biggest name in the game, and that the sleeping giant has woken up and is doing everything that it can towards righting the worst infringements. My 25th birthday present to myself was my life membership, and I am proud of it. Granted, I will still call out a couple crazies in the organization when needed to *cough* Wayne *cough*

  2. avatar Marcus Aurelius Payne says:

    Fingers crossed, eggs not being counted.

  3. avatar TRP says:

    WOW, guess there IS hope for us in the Peoples Republic of Kalifornia!

  4. avatar dwb says:

    effing awesome!

  5. avatar Kevin L says:

    Finally a victory in CA. Shall issue in MD next please.

    1. avatar Geoff PR says:

      Just close your eyes, tap your heels together three times, and say…

    2. avatar Steve in MD says:

      I wouldn’t hold your breath. We might be able to do away with our stupid 7 day waiting period though.

    3. avatar Hannibal says:

      It isn’t the first victory to come out of there recently… it’s kinda weird, almost as if they’re respecting Heller.

  6. avatar jwm says:

    The fact that you’re a repeat customer at a gun shop may pass muster for having another firearm. Or the CA mandated registration may be used as proof also.

    Little by little even CA has to recognise our civil rights.

    1. avatar Gunr says:

      I’m surprised that the law would use a prior purchase for proof of eligibility. Doesn’t prove a thing, except that at one time in the past you could pass muster.
      Here in Oregon I can buy a gun, have it in my possession, usually in a lot lass than an hour, then, a few days later, I can bring in a different gun for my LGS to sell on consignment, and then change my mind a couple of days later, I have to go through a background check to be able to get my own gun back!
      This is because I might have been convicted of a felony, between the time I brought the gun in to sell, and when I decided to keep it.

      1. avatar Mike says:

        Waiting periods are cool down periods, what point is there in a cool down period if you already own a firearm? Once you own one, there’s absolutely no person in the world who could logically argue that you should have to wait on a second, third, etc.

        1. avatar Gene says:

          I wonder if that “cool down” period made some foks reconsider buying a R51. Maybe there should be a Federal Remington purchase cool down period?

      2. avatar DrVino says:

        You STILL have to pass a background check.
        The 10 day period was billed as a “cooling off period”. You know…. to reduce gun violence (like with mentally ill people who have grudges against some groups and would like to slaughter as many… say, beautiful blond girls, as possible).
        If you already own a gun, then you no longer need to wait the 10 days.
        Presumably.
        YMMV
        The Legislature or DOJ must work out the deets…

      3. avatar Misnomer says:

        I don’t understand. How could you commit a felony without your magic felon talisman (aka gun)?

      4. avatar Robert W. says:

        Gotta remember that we have registration here in california. The BGC system can be tied into the registration system, so there is real proof of firearm ownership.

    2. avatar rlc2 says:

      To be fair, CA is not one monolithic entity, jwm, as you know.

      Actually, self defense for good cause for sheriffs to shall issue is a matter of law, reversed and remanded, and
      precedential in that it is citable, in other district courts, as it was in Palmer, in DC.

      We are simply waiting for the 9th to decide if POTUS prettiest stae AG, and very ambitious Democratic San Fran liberal, Ms Kamal Harris, to politely decide if she should be allowed to elbow her way in, as an interested party, having turned doen the information in arguments before the court, in Dec 2012, which will then give her the right to request en banc consideration of the case again, by the judges chosen from the majority liberal pool.

      Considering the optics, in Sacramento and Sa Fran these days (Uncle Leland?) and nationally, for this pol who was once trumpeted as the next female Obama, its not surprising she has been sorta quiet, and allowing nitwits like DeLeon to float turds in the CA legislature, like SB53, which poor old Oakland boy, Gov Moonbeam Jerry Brown, must politely push away with veto, or run the risk of further loss of confidence in THE DEMS UNCONTESTED DOMINATION OF ALL THREE BRANCES OF STATE GOVERNMENT, for the last three years,
      (7 if you dont count Arnies second lame duck fvck the maid term.). And a supermajority in the Legislature since 2012. No wonder citizen referendums and poor repub gerymandered out of any chance of winnning contested seats have no hope, and CA has become the poster child of Progtard FAIL like when you give the spoiked 14 year old the key to the family SUV. But, I digress, the point being, litigation is all that works, and it takes time and money.

      As Ralph has noted, Judge O’Scanlainns ruling was a masterful summation and restatement of the latest legal scholarsip about the Founders intentions, for example, here;
      http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/ninth-circuit-strikes-californias-restrictive-rule-against-licensed-carry-of-handguns/

      and the careful, patient strategic litigation by well funded attorneys working together, using Heller and McDonald decisions to answer the narrowly tailored questions built upon irrefutable legal argument, that Peruta represents.
      3D chess, as some have opined, and IANAL, but I have seen the maturation of gun owners, in CA, and quiet but brilliant leadership at CGF that has informed it, thank you Gene, Brandon, and many ithers, you know who you are. Point being, once the circular firing squads were called off, and local wise legal and national talent was partnered, enabled by the horizontal netwoks mentione in the Rise of the Anti-Media, for example SAF and NRA synergizing instead of cat-fighting, big things happened…and moe underway.

      Why do you care what some OFWG in Ca thinks?
      As California goes, so goes the Nation, the old sayin goes…and my take on the next generation, of Millenials, techies, and ithers who value reason over propaganda, are slowing waking up to the ripoff of Hope and Change, and even the Pampered Princes in Sacramento, and Dowager Empresses in DC are realizing their grip on assumed power is at risk.

      And you know what they say, about what walks, and what talks…Take Back the Senate in 2014, elect a POTUS who believes in, instead of apologizes for America, and will secure Moderate Justices to SCOTUS, in you believe in more than just talkin about your individual rights to freedom, 2A just the canary in the coal mine…

      1. avatar Mark N. says:

        Peruta, a court of appeals decision, is binding on all the California federal trial courts in the district. Palmer, being a trial court case not an appellate decision is not binding anywhere.

        1. avatar rlc2 says:

          Thanks, I get that, and IANAL, so if someone else is, and can explain better-
          it might help, as I am probably using the wrong words here-

          As I understand it, no District court is binding by the decision of another District Court, outside of its district, and strictly speaking, I suppose precedential is the wrong word, technically- so thanks for that-

          The District Courts and entities in the District are bound only by decisions in that district- and of course, by SCOTUS, when the Justices take something up, to resolve a split among Districts.

          In the meantime, the Attorneys can cite a supplemental authority, as the attorneys for Palmer did, here on Peruta decision, on 2/18: http://michellawyers.com/palmer-v-district-of-colombia/

          Michel and Associations is the West Coast coordinator, for the Peruta case- official updates on their website here: http://michellawyers.com/guncasetracker/perutavsandiego/

          They will occasionally weigh in on Calguns.net, in forums to help update info there, or clarify misconceptions for us laypersons…

      2. avatar MarkPA says:

        Excellent analysis. Particularly in making the case for why PotG in the free States need to care about the slave States. CA is absolutely critical. SCOTUS is supposed to eventually get-around to resolving conflicting rulings among the Circuits. Now, the 2’nd, 3’rd, and 4’th Circuits deny a right-to-carry while the 7’th supports a right-to-carry; three-against-one. SCOTUS could arguably dismiss the conflict among the Circuits; or, at least defer it as long as they like. This is why CA is critical; the Peruta decision must run it’s course and stand as settled law in the 9’th Circuit. We need to pray for SAF and PAY our donations to SAF to carry on this fight. With Peruta running its course and standing, the Circuits will be three-against-two. The DC carry case has finally been decided in support of Carry; so, now it will (almost certainly) go to the DC Circuit. If it went pro-carry (our wet dream) the Circuits would be three-to-three. How long could SCOTUS continue to ignore a three-to-three split? What other Circuit could produce a case to make the split more clear? All the other Circuits have States that are right-to-carry.
        CA is the highest-population of the slave States. If Peruta stands it leaves MD, NJ, NY as all smaller jurisdictions. I think that builds the pressure to regard slave-states to be out-of-step with national sentiment.
        It’s difficult for the PotG trapped behind enemy lines in slave states to free themselves. They don’t have the votes to influence their legislatures. The slave States are failing economically and failing to control their crime rates. The emigration of leftist voters to prosperous and safe free States will spread the cancer of hoplophobia. We’ve seen this happen with emigration from California to Colorado. We need to inoculate voters in slave States to recognize that their leftist dystopias won’t immolate themselves in gun-fire if Shall-Issue is adopted in their jurisdictions. They won’t instantly become conservatives or libertarians; however, they won’t be quite so likely to tip the balance-of-power when they move from failing slave States to prosperous free States.
        I see 3 avenues to free the slave States:
        1) support litigation everywhere
        2) push for National Reciprocity; and,
        3) consider an Article V convention of the States to adopt a Right-to-Carry Amendment
        #3 will have a tendency to push SCOTUS or Congress to grant relief in the hope of avoiding the States setting a precedent of taking initiative in interpreting the Constitution by way of an Article V convention

    3. avatar LarryinTX says:

      Guys, be careful what you celebrate. This just makes certain there is an excuse to maintain the registration scheme which obviously exists. They will know where to come and what to look for, when the time comes. And “they” are certain it will.

  7. This is pretty big. It never made any sense that a person who already had a gun had to wait for 10 days to buy another gun.

    The better way to show that you had access to a gun would be just to bring one to the shop.

    1. avatar Geoff PR says:

      Yeah, Dean, but what’s stopping someone getting a gun loan from a friend for the buy and then returning it?

      1. avatar uncommon_sense says:

        Nothing Geoff … but it concretely shows that the purchaser is not purchasing the new firearm for a “crime of passion” or a spree killing because they could already do that with the borrowed firearm.

        1. avatar Scrubula says:

          Never mind that most killing spree people don’t have previous violent crimes and usually bring more than one firearm.
          Of course, there is no possible way to catch them without analyzing their mental health.

        2. avatar JR_in_NC says:

          Geez.

          Don’t you guys know you are NOT SUPPOSED to apply logic to these things?

          It’s pure emotion, man. It has been DECLARED that waiting periods save lives, so they are good. We’ll have none of this, “but you already have access to a gun, so the waiting period is useless” stuff.

  8. avatar SuperiorPosture says:

    So… I wonder how the lawsuits against the constitutionality of the “approved roster” are making out…

    Until that gets dumped, California is still easily the most restrictive state. And this coming from a guy who lives in New Jersey.

    1. avatar Jake Tallman says:

      Ever heard of the New York SAFE Act?

      1. avatar SuperiorPosture says:

        Even under the SAFE Act, you’re allowed to buy a new Glock-brand Glock.

        Try that in California when the new roster comes out. Or Smith & Wesson. Or Ruger…

      2. avatar Peaches says:

        This is good news for the case against the NY SAFE act. Notice that the judge says public safety doesn’t outweigh the constitution. So that means if Gura is smart (which I know he is), he will use this case to make his argument in NY.

  9. avatar ST says:

    Good news; every gun you buy after #1 doesn’t have a waiting period.

    Bad news: gun #1 does. And DOJ might randomly select you for a 30 day hold on top of that….m

    1. avatar LarryinTX says:

      Exactly right. Now, how can we get the word out that EVERYONE needs to buy that first one ASAP. That will free up the system pretty good! Once everyone actually owns a gun, attitudes will change.

  10. avatar Dave357 says:

    The words I really like is “violate the Second Amendment”. This helps cement the fact – in the minds of those who still haven’t gotten the message – that the Second Amendment is for real.

    1. avatar Scrubula says:

      Agreed. State law is not above the constitution.

  11. avatar TN says:

    Awesome. Now get rid of the roster list and 1 gun only in 30 days law.

      1. avatar Mark N. says:

        Better hurry. The roster is down to 925 firearms total. Ruger is down to two pistols, and Taurus down to one. Others have disappeared completely.

        1. avatar rlc2 says:

          My bad for the long post above, forgot the TL;DR. Money Talks, you know what walks. Hitting CGF tipjar, and bookmarking their Amazon button.15% of all my purchases go there, free. An Army of Davids, we are…
          http://www.amazon.com/An-Army-Davids-Technology-Government/dp/1595551131

          and that works…read the academic study, including histrory of NRA, in:http://www.amazon.com/Rise-Anti-Media-In-forming-Americas-Concealed/dp/0739118862

          Wax on, wax off.

    1. avatar Dave357 says:

      And microstamping?

      1. avatar rlc2 says:

        See CGF for status, or read Calguns.net, the informal forums …lots of opinions and history there, too.

  12. Dan,

    You said: “Exactly how someone who’s passed the specified background check is to demonstrate to the AFS system that he or she owns an additional firearm isn’t really clear.”

    It’s actually clear in the decision as well as the facts. DOJ knows if someone has a firearm registered to them. Therefore, if someone has a firearm in DOJ’s AFS and either a CCW or COE, they don’t need to wait the 10 days. Simple.

    1. So…you have to have an AFS-registered gun? If you’ve passed the check and own a gun that’s not registered in the AFS system, what then?

      1. avatar Mark N. says:

        All handguns in California after a certain date are required to be “registered”, including ones brought into the state by people moving here (since 1998). Technically, the DOJ claims that there is no “gun registration”, just a record (computerized and searchable) of dealer records of sale. I don’t understand the distinction.

        1. avatar Gunr says:

          You mean that people that own guns are actually moving TO Kali.?

        2. avatar JR_in_NC says:

          Gunr, that was my first thought as well.

      2. A few things:

        1. All handguns added to a California CCW license are added to DOJ’s AFS even if not previously registered.
        2. All firearms sold/transferred in California through licensed dealers (via DROS) are added to AFS.
        3. Gun owners may “volreg” (voluntarily register) their firearms with DOJ. So a $19 volreg and a COE will get you the magic formula for waiting period exemption, or a California CCW (which are, under Peruta/Richards, effectively “shall issue” notwithstanding ongoing processing issues and unconstitutional local policies).

        I’m not suggesting that the above is the end of the line, and certainly we’re looking to challenge further burdens on Second Amendment rights, but this is an important first step to build on.

        -BC

        1. avatar Gunr says:

          So in Kali.,you must have any gun you carry, listed on your CC permit?

        2. avatar Mark N. says:

          Yes, the handguns you may carry must be listed on your CCW. The front of the permit has space for three handguns, and some counties therefore limit you to only three. Others will list more on the back if you desire. Some counties limit the caliber you can use, and/or require that any handgun was on the roster at the time of its purchase, while others don’t care. Modified actions are frowned upon or may be prohibited. You have to remember that there is a state law for CCW applications standards, but everything else is within the jurisdiction and discretion of the issuing agency (local sheriff or chief of police), so standards vary widely, just as issuance policies vary from virtual shall issue to effectively no issue.

        3. avatar LarryinTX says:

          Heck, I have met people who carry 3 at the same time!

    2. avatar LarryinTX says:

      Last I heard, it is a FELONY for anyone at DOJ to maintain a list of who owns a firearm. And we are just assuming that DOJ has such a list? Did I go off the road somehow?

      Rereading: Are we talking about CA DOJ, or USDOJ?

  13. avatar MotoJB says:

    Could be a slight glimmer of hope/progress…but until we’re allowed more than 10 rounds and allowed to use semi-auto military style weapons (not “assault weapons”) without bullet buttons, then this place still sucks for gun owners.

    1. avatar v v ind says:

      I’m wishing upon a star for a NFA friendly court ruling….I really want a suppressor

  14. avatar Jay in Florida says:

    One stupid law at a time and things will mostly go our way.
    Here in Florida.
    CCP no wait fill out 4435 and background check walk out with new toy.
    NO CCP form check 3 days.
    Never did understand NY.
    De facto 30 day wait license or not.
    Judge has to approve certificate needed to pickup fire arm.

    1. avatar beefeater says:

      NY can be even worse than that. I’ve been in the process of trying to get my pistol permit in Albany county since September of 2013. Without that permit, I am not allowed to have a handgun of any type, even in my own home.

      1. avatar Gunr says:

        That really sucks! You must have a hell of a good job, and close family ties to keep from moving away, FAR away.

      2. avatar PeterZ in West Tennessee says:

        IANAL, but it seems to me that a prohibition of handguns in the home violates Heller, and strong roadblocks to getting permitted violates Peruta (I know. Different district). Maybe something can be done.

  15. avatar Ralph says:

    Kevin de Leon has proposed that the waiting period should be replaced by a protological exam for men, while women will get a mammogram utilizing a sandwich press. Hey, it’s for the children.

    1. avatar Slick says:

      Dont give that asshat any more ideas…..

  16. avatar Scrubula says:

    Congrats. Their moves to make firearms hard and unappealing to own for anyone didn’t stand up in court.
    Of course, there are still hundreds of other unconstitutional laws.
    The stay doesn’t bother me a whole lot. If they weren’t granted one they would have bitched and whined for one anyways.

  17. avatar Michael B. says:

    Florida still has a three day waiting period for handgun purchases unless you’ve got a CCW.

    We should get rid of that.

    1. avatar LarryinTX says:

      Really?! Makes me even prouder of TX.

  18. avatar Former Water Walker says:

    Good for them. Good to see Illinois (leading?) the way. Keep fighting.

  19. avatar Mike says:

    Problem with places like Cali and the NE states is that every lawsuit we win, they institute more unconstitutional laws. Cali wins on CCW and waiting periods and loses on ammo background checks, etc. To me, politicians should be held personally responsible for bringing up and passing laws that are later held to be unconstitutional. Make them either split the costs of the lawsuit for the plaintiffs or at least pay a flat fee out of their salary/pension. IL lost the CC ban and instead wrote a new law that is overly onerous and restrictive which will likely need to go back to court to get fixed. The pols know that if they lose on one front, they can just pass another law on a whim where they have control of the house, senate and gov mansion and kick the ball down the road and cost the taxpayers money when that law is overturned.

  20. avatar mark_anthony_78 says:

    Perhaps this could some day lead to a challenge of NJ’s “One Gun a Month” law (for handguns)…

  21. avatar uncommon_sense says:

    Can someone please explain what this means without using acronyms?

    What does this mean for a person who lives in California who wants to purchase their first long gun? Their first handgun?

    What does this mean for a person who lives in California who wants to purchase their second long gun or handgun?

    1. avatar Adam says:

      If you are getting your first rifle in CA you have to do the following:

      Go to the FFL to purchase and fill out your Dealer record of sale (DROS) paper work
      Wait 10 days (this includes time for both the background and cooling. Backgrounds take anywhere from 1 hour to 8 days. Cool off is any additional time till you reach 10 days. After your 10 days you go home with the rifle.

      Pistols you need to first pass your handgun safety test. You pay 25 dollars and take the test in front of an approved ffl employee. When you pass they give you the card and you present that when you purchase handguns. Dealers keep this on file if you frequent them. When you go to buy the pistol you show them the card, pay for the gun and fill out a DROS. You then have the 10 day wait like with the rifle. When you pick up a handgun you have to pass a safety check which includes handling, loading and unloading the gun. The instructor tells you what to do and you show you can do it. Then you get to take the gun home.

      The ruling quoted in this article essentially states that if you already have a registered gun (all handguns for the last decade or so and all rifles since this year), you no longer have to wait 10 days if you pass the background check. So you may still have to wait 8 days anyways but they cant make you wait just to cool off anymore.

      Those are simplified procedures. California has been known to hold up the background checks indefinitely, leading to other lawsuits. There is also a roster limiting what pistols dealers can actually sell you. There is also a 1 new handgun purchase every 30 days rule and a bunch of others like bullet buttons. calguns.net is a great resource for anyone trying to navigate the world of firearms in CA.

      1. avatar uncommon_sense says:

        Thank you Adam.

        This is the key sentence in your explanation, “So you may still have to wait 8 days anyways but they cant make you wait just to cool off anymore.”

        I was hoping the ruling meant that a person with no criminal record could walk into a gun store, purchase a new firearm (regardless of whether they already own one or not), and immediately walk out with the new firearm … and the only possible delay is how long it takes the feds to return a “proceed” or “denied” over the phone when the gun store calls NICS. According to your explanation, that is not the case.

        1. avatar Mark N. says:

          Correct; however the State acknowledged in the litigation that about 20% of checks are processed the same day.

      2. avatar Gunr says:

        What is a “bullet button”?

        1. avatar Mark N. says:

          One of the joys of owning an AR/AK style weapon in California. California law requires that (most) semiautomatic rifles must have a fixed magazine of no greater than 10 rounds. The law defines “fixed” as permanently attached to the firearm or that can only be removed with the use of a tool. So, n AR has a mag release button on the right side of the firearm. The “bullet button” replaces the standard mag button with a recessed button that prevents the operator from using a finger to depress the release. Instead, a “tool” (usually the tip of a round) is inserted into the mag release to eject the mag. This has been held to be a legal workaround to the fixed magazine law. A proposed law in the Legislature to close this “loophole” has been stalled by the arrest of the sponsoring senator (Yee) on federal gun trafficking charges. If passed, California AR owners would be required to purchase a Prince 50 mag lock device that permanently disables the release, requiring reloading to be accomplished by popping the rear takedown pin and loading the magazine inside the rifle.

        2. avatar Gunr says:

          Thanks Mark

        3. avatar LarryinTX says:

          Pardon my lack of acronyms, but you have got to be shitting me. That is incredible, as in literally unbelievable. I mean, like, the previous 6 entries or so. ALL of them! This is real? In America?

  22. avatar Mark says:

    Glad for a tiny step in the right direction, but I don’t understand the logic of giving the state an additional *half year* of violating their resident’s constitutional rights. They passed an unconstitutional law – by rights, those responsible should be accountable, and at the very least- the court needs to restore those rights promptly.

    1. avatar mark_anthony_78 says:

      I agree. Anything found to be “unconstitutional” should be stricken from the books immediately.

      This isn’t like budget negotiations, where the parties agree in principle but are just haggling the details. The law is freaking illegal.

  23. avatar Gunr says:

    Guess who’s probably pulling their mangy hair out, about now. Wouldn’t want to mention any names but her initials are Dianne Feinstein baby!

  24. avatar Frank Masotti says:

    9th circus court of appeals will overturn this ruling I believe.

    1. avatar jwm says:

      Didn’t the 9th circuit recently rule in favor of shall issue in CA?

      1. avatar Adam says:

        Yes….but the attorney general decided that she didn’t like that and tried to file an appeal to get the court to review it en banc. She wasn’t a party in the case as thus the ruling while never stayed is in limbo in several counties until the court decides whether or not to grant her status on the case or go en banc.

        The initial ruling utilizes only 3 judges of the circuit. An en banc review would use all of the judges. An en banc can only be granted by the court itself and it usually only does so if a member actually a part of of the case has a valid reason for the additional review.

        Disclaimer: The above is what my limited legal knowledge remembers. Its a pain in the butt system so I may have some details off.

        1. avatar Mark N. says:

          It is not the entire court, only 13 justice, twelve randomly selected and Chief Justice Kosinski. Kosinski appears to lean in our direction.

      2. avatar Mark N. says:

        Yes and no. In Peruta v. Gore the Ninth held that “self defense” is sufficient “good cause” under California’s may issue statute. However, there is a big caveat with that. First, the decision has been stayed pending further proceedings (which means that the ruling is valid and binding on all the district trial courts, but may and has been “safely” ignored by the nonissuing counties until further notice). Second, the case is in some sort of judicial netherworld pending the decision of AG Harris’ motion to intervene and her attendant petition for rehearing en banc. If she is denied intervention, the case will become final as San Diego has stated that it will not further challenge the decision. Which leaves an en banc application in the companion case of Richards v. Prieto still pending, as well as the possibility that any justice may also request an en banc review. If en banc is granted, who knows what will happen next. We have to assume that at some point, a petition for certiorari will be filed with SCOTUS no matter who prevails.

        1. avatar uncommon_sense says:

          Can anyone tell me what legal principle applies here whereby the courts take months/years/decades to move through cases that seriously infringe, or even worse totally destroy, a codified constitutional right?

          I read some legal gymnastics (probably the recent District of Columbia case) whereby the courts try to claim that “a compelling government interest in public safety” is justification for government and the courts to stay rulings indefinitely. The trouble with that line of thinking: any government agency could justify forced public strip searches of anyone who might, maybe, could, or perhaps thought about harming the public … then stay successful court challenges forever and keep performing forced public strip searches. This stuff is egregious and outrageous!

          Of course government agencies will trumpet “compelling interest for public safety” to justify everything. It’s like the government’s abuse of the Interstate Commerce Clause. Where does it end?

        2. avatar LarryinTX says:

          It ends when we begin firing presidents and congresscritters who allow it. These people work for us.

  25. avatar Mark N. says:

    This won’t last long. First of all, no new legislation can be proposed at the current time, rather not until the next session of the Legislature, whenever that is. Brandon will know when it reconvenes. Second AG Harris is a dyed-in-the-wool gun banner who will undoubtedly appeal to the Ninth Circuit and request a stay (which she will get), which of course means that this decision isn’t worth the paper it is printed on. We will not have something to take to the bank until the Ninth issues a decision in a couple of years. The Ninth is a mixed bag. On the one hand, they gave us Peruta, establishing a right to bear arms outside the home, on the other it affirmed a San Francisco ordinance that requires all firearms not in one’s personal possession (i.e. worn or carried) to be unloaded and kept in a locked container, notwithstanding Heller. (Jackson v. S.F., I think is the case.)

    1. Not 100% she’ll appeal. Some interesting politics at work here. Also lots of legal risk for her.

      1. avatar Mark N. says:

        Given the monkey wrenches she’s thrown in the system to date to delay and deny purchases, I must disagree. Add to that her attempts to avoid becoming involved in the suits on the “may issue” system until the decision in Peruta; her intent was to avoid any facial attack on the constitutionality of the statute. She only became involved because the Peruta decision had that effect without overturning the statute as unconstitutional. Then add in her declaration that microstamping is an available technology, thus preventing any new or upgraded pistols from being sold in California. Since she is no friend to gunowners, she loses no political capital in appealing a trial court decision to the Ninth Circuit, a place where she has better than even odds of having the decision reversed. Finally, there is no possibility of a political solution in the heavily Democrat dominated legislature. So if it is not 100%, it is long odds indeed that she won’t appeal.

        1. avatar uncommon_sense says:

          I agree. What does Ms. Harris have to lose if she appeals? It certainly won’t hurt her or anyone else politically.

      2. avatar rlc2 says:

        Thanks Brandon.
        TL:DR- do your homework, and CGF is the best place to start for whats what in CA, IMHO.

        One of the things I learned reading Calguns.net several years ago when I first thought about getting a HD gun, was how much FUD was spread, intentional and unintentional by lay people unfamiliar with the law, just trying to understand the technicalities, which get pretty arcane.

        Add in the agendas driven by individuals and their egos, of all sorts- common on the innertubz since BBS days,and no surprises- you have to be careful what you believe- and take everything with a heavy helping of salt, until you start to figure out who knows what they are talking about, or not.

        The second lesson was an overly detailed discussion of legal strategy, by the legal team, or well informed and well intentioned commentators, might actually work against the practioners, by showing your hand. The Peruta case is a good example. The flaming at Calguns.net got out of hand, IMHO, and the proof was the librarians curated some things, appropriately- we should all be very grateful for just the hard work it takes to keep and organize info, in general- and the impact, so thanks to all those who work in obscurity, for a job very well done, there, too IMHO.

        Again, IANAL, so I defer to those who are, but I have read successful 2A litigation at the SCOTUS level is like a game of 3D chess.

        TTAGers interested in more opinions, will find quite a bit of wise, long experienced commentators at Calguns.net. Here is the section devoted to litigation:
        http://www.calguns.net/calgunforum/forumdisplay.php?s=9b7d09a3df430758a1d47824311c98ca&f=330

        If you want the short version, when it becomes clear as to the law, or a significant milestone, you could just sign up for Cal Guns Foundation updates. CGF is the guys paying the lawyer fees, along with NRA and SAF, and the plaintiff. Calguns.net is the informal forum- and like TTAG, a lot of VERY helpful, gun owners, and the origin of a lot of indispensable info, some of which is now being hosted by CGF.

        The Assault Weapon flow diagram is an example and the updated CCW resources at CGF, are another.
        If you are a gun owner in CA, and you arent double checking your facts, you could very easily get in big legal trouble just assuming what is reasonable elsewhere is the same here- like a lot of young military guys bringing their guns in, when the get assigned to a base in CA.

        Power flows from groups, and money talks, and smart synergy between state and national groups works-
        in CA, IL, and elsewhere.

  26. avatar Steve says:

    I said it before and I’ll say it again: The moment a law is deemed unconstitutional it needs to be taken off the books RIGHT THEN, not 30, 60, 90, 180 days later. If it’s illegal, it’s illegal. Giving the state more time to enforce an unconstitutional law before finding other ways to infringe on rights is idiotic at best.

    1. avatar SteveInCO says:

      That whole thing about a stay is probably designed for situations where a law is mostly constitutional, but the court tossed it due to one minor detail. This gives the state a chance to remedy the detail.

      Doesn’t apply here of course. Though maybe the court thinks so.

    2. avatar uncommon_sense says:

      Steve,

      See my reply to Mark N. above covering the same idea.

      It is truly outrageous in every possible sense of that word.

    3. avatar Misnomer says:

      So what if the law was violated anyway? Since it has already been ruled unconstitutional, is there any logic at all under which they could prosecute someone for violating it? You would think any attempted charges under this law would get summarily thrown out.

      Obviously sellers probably don’t want to take the chance, but what exactly could the government do if they just disregarded this law?

  27. avatar W1-1 says:

    Maybe the same argument could be used with regard to NFA transfers as well. Could be wishful thinking, but you never know.

  28. avatar Jonathan - Houston says:

    Nice ruling. Not a touchdown, but does move the ball nicely down the field.

    And from a Clinton appointee who who actually graduated with a pharmacy degree, before going to law school. Maybe he’s come up with the cure for liberalism, or at least an effective treatment.

  29. avatar JR_in_NC says:

    Wait, this can’t be right. Positive legal news?

    I thought OCT and/or OCTC had already ruined everything for every gun owner in America?

    1. avatar rlc2 says:

      heh, nice one…you just love stirring the pot- ok, here goes, since its CA related-

      Dont forget it was the OCtards in CA, that lost OC long, and I mean in relative time, quite rapidly, weeks as I recall, after Sacramento deciding to deny OC handgun, and all due to over-reaction of the Sacramento Ninny’s freaking out about Soccer Moms being confronted on the Boardwalk, in Pacific Beach, by vocal and disorganized AR brandishers…

      To be completely fair, I wasnt there, but I saw the videos online and while the SDPD has a reputation for being no-nonsense, they are fair, and professional- and you could tell they were tense and concerned.
      The rest of the press, even in conservative San Diego, was not amused, and few in the real world, outside of gun guys gave a $hit, that OC anything was gone in CA.

      A Chipotle moment in time, only worse, you might say…

      1. avatar JR_in_NC says:

        “heh, nice one…you just love stirring the pot- ok, here goes,”

        😉

        My answer has been, and remains, “but that’s California, not Texas.”

        Show me one new law passed in CA provably caused by OC activism in TX. Until then, the argument is moot.

        I think we can agree that the CA legislature is reactionary in a way that defies logic and indeed intelligence itself when it comes to guns. So, that they ‘reacted’ to OC in the past is not a surprise.

        But this is where we are NOW. We are in a different political climate (one in which we have a TON of momentum outside certain decidedly blue states) and such activism in TX is, and has, a very, very different timbre.

  30. avatar Raul Ybarra says:

    I do have one issue with the article. Dan mentions the ruling against Madigan creating the right to carry in Illinois. Sorry, but you’re wrong. It didn’t create the right. It recognized the natural right.

    1. avatar Kyle says:

      ^^^^^AGREE

  31. avatar Guywithagun says:

    Yeah, this doesn’t really mean much. Now they will simply delay all background checks for 8 days and we will still have to wait. At least we may get to save 2 days. Big whoop.

    “I’m sorry Sir, but due to recent budget cuts, the CA DOJ no longer has the resources to perform background checks in a timely manner. You will be able to pick up the firearm in 7 to 8 days when your background check is complete. Thank you. Good bye.”

  32. avatar doesky2 says:

    I long for the day that someone can buy a gun in California in the same length of time it takes to get an abortion (and its guaranteed death).

  33. avatar Abad Benhaddi Don says:

    The ruling also extends to CCW license holders in the Golden State. Both of them.

    Ha ha! I made the exact same joke the other day…

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