A press release just issued by The Calguns Foundation:

WASHINGTON, D.C. (September 1, 2017)­­­­­­ – Today, two individuals and two Second Amendment civil rights advocacy groups filed a petition for certiorari in the case of Silvester, et al. v. California Attorney General Xavier Becerra asking the United States Supreme Court to review and overturn a wrongly-decided Ninth Circuit decision about the State of California’s 10-day waiting period laws, noted The Calguns Foundation, one of the petitioners.

A copy of the petition to the Supreme Court and other relevant case documents can be viewed or downloaded on the lawsuit’s Web page at https://www.calgunsfoundation.org/silvester.

In 2014, Federal District Court Judge Anthony W. Ishii—nominated to the bench by then-President Clinton—held that the waiting period laws were unconstitutional as applied to three categories of gun purchasers after undertaking significant discovery, depositions, and a three-day bench trial.

But in 2016, the United States Court of Appeals for the Ninth Circuit bizarrely ruled that even a person legally carrying a concealed handgun as he buys another gun at retail, and who passes a further background check, needs to be “cooled off” for another 10 days before exercising his Second Amendment rights and taking possession of a constitutionally-protected firearm.

“I passed a rigorous state and federal background check and have a license to carry a handgun in public throughout the State of California,” explained individual plaintiff Jeffrey Silvester, an insurance broker in Hanford, California.  “The DOJ knows that I am a law-abiding person, and I’m even in their Rap Back system. What possible reason does the State have in denying me my Second Amendment right to take possession of a firearm after I pass yet another background check?”

The petition, authored by Supreme Court and appellate attorney Erik. S. Jaffe of Washington, D.C., noted that it “is no secret that various lower courts, and the Ninth Circuit especially, are engaged in systematic resistance to” the Court’s landmark Heller and McDonald decisions.  In doing so, the petitioners argue, the Ninth Circuit ignored important legal rules that govern how infringements on constitutional rights are to be scrutinized and that govern review of a trial court determinations of the facts in a case.  Petitioners maintain that the Ninth Circuit’s decision represents one of the clearest example yet of open circumvention of Second Amendment rights, when even the results of a trial cannot survive the hostile appellate review often applied in Second Amendment cases.

The petition notes that the lax legal standard applied by the Ninth Circuit in this case conflicts with the more protective legal standard applied by the Supreme Court, “poses a threat not merely to Second Amendment rights, but to First and Fourteenth Amendment rights as well,” and that review should be granted “to correct that conflict” and enforce the proper standard of constitutional scrutiny of laws that burden Second Amendment rights.

Brandon Combs, an individual plaintiff in the case as well as the executive director of organizational plaintiff The Calguns Foundation, believes that fundamental, individual Second Amendment rights are being treated like second-class rights.

“In its decision to ignore the trial court’s Findings of Fact and Conclusions of Law as well as longstanding principles of appellate review,” said Combs, “the Ninth Circuit has made it crystal clear that it has no intention of following the Supreme Court’s precedents no matter how unconstitutional, arbitrary, or irrational the law.  This case and the Ninth Circuit’s treatment of fundamental rights are beyond ripe for review.”

“We are hopeful that the Supreme Court will use the extensive record here to further develop its Second Amendment precedent and place the right to keep and bear arms on an equal footing with First Amendment rights, such as freedom of speech.”

Silvester, Combs, and The Calguns Foundation are joined in the petition by Second Amendment Foundation of Bellevue, WA, which also partially funded the case.

“While this case is about waiting periods, it is also about something more,” said Second Amendment Foundation founder and Executive Vice President Alan M. Gottlieb. “It’s about challenging a gun regulation that is applied in a manner designed to discourage the exercise of Second Amendment rights rather than genuinely to promote public safety.”

“It is worth recalling District Court Senior Judge Ishii’s comparison of the waiting period here to prior restraints of speech in the First Amendment context.  We would never tolerate such waiting periods for speech and we should not tolerate arbitrary and unnecessary waiting periods for the exercise of Second Amendment rights.  A civil right is a right, and all rights are equal and deserve equal protection.”

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.

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

Attorney Erik S. Jaffe (www.esjpc.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and has been a sole practitioner since 1997. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 60 amicus briefs at both the cert. and merits stages.

21 Responses to Second Amendment Foundation, Calguns Foundation File for Supreme Court Review of 9th Circuit CA 10-Day Waiting Period Decision

  1. Although I agree that the Ninth Circuit ignored standard rules of appellate review,which include giving a presumption of correctness to trial court factual determinations (substituting its own), and that the Ninth, lead by an anti-gun activist, is entirely against any expansion of gun rights, the odds of the Supreme Court granting review are essentially nil. Indeed, the odds of a successful petition are so low I am surprised that the petition was filed.

    • “…the odds of the Supreme Court granting review are essentially nil. Indeed, the odds of a successful petition are so low I am surprised that the petition was filed.”

      I’m inclined to believe it’s a matter of principal for them.

      It’s also a snide way for them to remind the 9th that they ain’t letting the 2A issue drop.

      I also believe it was strategy. When they filed, there were rumors Kennedy was going to retire. And then he didn’t. And *still* might not by next June. We just don’t know.

      Personally, I hope they keep a number of 2A cases like these in the judicial pipeline primed and ready to go for the next court vacancy to take a swing at them…

      • Every case we lose makes the next one harder to win. The longer it takes for the Supreme Court to grant review the more egregious the decisions of the Second, Third, Fourth and Ninth will become. Plus that outlier from the Seventh Circuit holding that a “public interest” in people “feeling safer” is a sufficient basis to ban semiauto rifles.

        • “The longer it takes for the Supreme Court to grant review the more egregious the decisions of the Second, Third, Fourth and Ninth will become.”

          Uh, it sure looks to me like those courts are quite happy to issue more and more egregious rulings whether or not anyone asks the U.S. Supreme Court to step in.

    • Does it matter?

      One person in 50 obeys the labyrinthine gun laws in California.

      Even the LEO’s can’t figure them out anymore.

  2. The petition was filed because there is always a chance the makeup of the Court will change. If Ginsburg or one of the other liberals retires or dies or if Kennedy dies or retires then the Republicans will fast track a Trump nominated judge. Then we are playing a completely different ball game.

    • Ginsberg will die before she retires; it’s the one thing keeping her alive. And they probably won’t notice for a few months; everyone will think that she is just being “quieter” than usual. They’ll probably bury her in her seat because they will be too afraid that she will turn to dust if they touch her. Kennedy is around for at least one more term; and his being there is one of the principal reasons that no 2A case has been granted cert, because neither the left wing nor the right wing can depend on him to vote their side, and neither side wants to lose.

  3. So, when will we find lawyers and gun groups willing to come together and do a class action against EVERY state for violating the 2nd amendment thru violations of the 10th amendment. 10th: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. How is any regulation (waiting period, CCL,, bans and so forth) not a violation of both the 2nd and 10th. Background checks are required under federal law so that is not what I am talking about.

    • The 10th amendment is essentially a dead dog, unless the central government finds it convenient to invoke the 10th. Later amendments made it clear that the central government is superior to the states.

      The courts have determined the 2d amendment subject to all sorts of constraints due to “compelling government interests”. Last, the current SC decided to ignore the reduction of the 2d amendment to a “second-class right”, meaning the amendment serves at the pleasure of the central government and its subdivisions (states).

    • The tenth amendment used to be a clear path to validating every state law gun restriction short of an outright ban. Up until Heller, every single restrictions state could rely on the 10th as authority for the proposition that the State had the right to regulate arms and the carriage thereof, since the 2d had never been held to apply to the States. The belief was that the 2A guaranteed a collective, not an individual right, for service in a state militia; and the states had the power to regulate their militias. No other gun rights existed except as guaranteed by a state constitution or as permitted by law. Just read Heller and its citations to a variety of old state law restrictions on the keeping and bearing (more bearing actually) of arms, and then refer to the Jim Crow laws and other racist gun laws that have passed in the various states over the last 200 years.

      • Yes, that whole “states’ rights” thing is a two-edged sword. As it happens, what you describe is precisely what the founders envisioned. The central government was barred from banning/confiscating firearms; states were left to control their own internal affairs.

        • It’s also an oxymoron. States don’t have rights, they only have powers. Powers not explicitly granted to the federal government were meant to be reserved for the states.

          Rights are for people. (And there’s no such thing as a “collective right,” either. Every collective is merely an assembly of individuals. If it’s available to a group but withheld from any individual persons, it’s either a power or a privilege, not a right.)

        • “States don’t have rights, they only have powers. ”

          OK, “states’ rights”, as it is commonly understood.

  4. “… the Ninth Circuit ignored important legal rules that govern how infringements on constitutional rights are to be scrutinized …”

    Is a “right” really a right when government openly and blatantly infringes on the right?

    • “Is a “right” really a right when government openly and blatantly infringes on the right?”

      Courts agree that government, at any level, is permitted to constrain constitutionally protected rights any time government has a “compelling interest” in doing so. “Compelling Interest” is a cornerstone of the constitution, and the reason the original colonies broke from England. Saw that on the internet.

      • Oh, I know full well that legislatures and courts are quite happy and comfortable using the “compelling government interest” rationale to allow any and every infringement under the sun.

        My comment was referring to what is actually righteous.

        • “My comment was referring to what is actually righteous.”

          I know you did. My comment was half reminder of the tool of subversion, and half mocking the concept behind the tool.

  5. I’m glad I left California. Good luck to you all. I suggest you stop voting for proud homosexual white men like Tom Ammiano, who wrote the law making rape victims and stalking victims wait longer to get a gun. As a proud homosexual white man he is much smarter than a woman who has been attacked multiple times.

    https://forums.1911forum.com/showthread.php?t=427072

    “AB 500 – Assemblymember Tom Ammiano (D-San Francisco)
    Summary: Expansion of the 10-day waiting period ban; new CA DOJ authority to deny guns to law-abiding people.”

    Or stop voting for a proud white lesbian, Ginny Float, who said gun control is wrong. BUT STILL VOTED FOR IT ANY WAY!!!!!

    “Councilwoman Ginny Foat said she was uncomfortable voting for a law she herself wouldn’t follow. Foat said she keeps a gun in her nightstand and had no intention of locking it up”.

    http://www.desertsun.com/story/news/local/palm-springs/2016/09/07/gun-control-showdown-palm-springs-city-hall/89930160/

    Don’t ever vote for an open homosexual. They are socialist progressive in their political orientation. But if you find one like Justin Raimondo, who is pro gun and pro liberty, you’ll see that even gays won’t vote for a gay candidate, who won’t support “free stuff” for them. They would prefer a breeder like Nancy Pelosi. A democrat who will give them “free Stuff.”

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