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Failure to Fire, (c) 2012, Mel Hynes & J.L. Grant, via

California imposes a 10-day waiting period before gun owners can take possession of a newly-purchased firearm, even for those who currently own guns and have one of the Golden State’s haphazardly-issued carry licenses. In December, a three-judge panel of the 9th Circuit Court of Appeals upheld California’s 10-day waiting period, claiming that a right delayed is not unreasonably denied.

The Judges argued: “Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately…. Our 18th and 19th century forebears knew nothing about electronic transmissions,” then immediately demonstrated how much they missed the point by noting, “Delays of a week or more were not the product of governmental regulations….”

Last week, the 9th Circuit rebuffed a request for a rehearing made by plaintiffs CalGuns Foundation and the Second Amendment Foundation. CalGuns has decided to play for all the marbles, and is petitioning the U.S. Supreme Court for a ruling.

In its decision to ignore the trial court’s Findings of Fact and Conclusions of Law as well as longstanding principles of appellate review, and now in its refusal to correct the 3-judge panel decision’s manifest errors in all regards, the Ninth Circuit Court of Appeals has made it crystal clear that it has no intention of following the Supreme Court’s precedent and protecting Second Amendment rights from unconstitutional, burdensome, and irrational laws.

Given its record here and in previous cases like Peruta v. San Diego, the Ninth Circuit’s interest in en banc re-hearings is apparently limited to only those cases in which the 3-judge panel decision comes down on the side of individual liberty and Second Amendment rights, and then only so that it can reverse those pro-freedom decisions.

We maintain that the Ninth Circuit’s panel opinion was patently wrong as a matter of law. Not only did the panel incorrectly decide the Second Amendment issues in favor of the State of California, but in doing so it ignored important legal rules that govern the review of a lower court’s judgment after a trial.

By refusing to correct the panel’s decision here, the Ninth Circuit has dared the Supreme Court to overturn them or bind tens of millions of law-abiding people to the tyrannies imposed on them and their right to keep and bear arms by the State of California and other similarly-hostile governments.

It is our intention to petition the Supreme Court to reverse the Ninth Circuit’s wholly-improper decision in this case.

Will the Supreme Court agree to take the case? That’s an open question. In recent years the Court has been reluctant to hear cases involving the right to keep and bear arms, prompting Justice Thomas to accuse his brethren of “relegating the Second Amendment to a second-class right.” It’s unclear whether or not that will change, even with Justice Gorsuch now on the Court.

A petitioner must convince four of the nine Justices to hear a case, and unless Scalia was one of the two Justices in the Heller who’s been blackballing 2A cases (highly unlikely, given that he joined Thomas’ dissent quoted above,) that calculus hasn’t really changed.


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  1. The cartoon is amusing.

    One has to wonder, were a state within the 9th circuit to impose a 10 day waiting period, on say, voting without proper ID, how the court would feel about that?

    Not the most fair comparison I know, but still, I feel they’d throw a fit about that sort of delay and probably use language like “a right delayed is a right denied”.

  2. The way I see it they will have to, sooner or later. The 4th and 9th need to be reigned in and obey the Constitution and Bill of Rights. All of the rights mentioned are important, not only the ones they claim to support.

    Even our current administration wants to limit freedom of speech. Until we get rid of the political parties that want to limit our rights, it will keep on. Sadly, even the Libertarians have those that wish limits on legal residents of this country.

  3. If they want to have 18th and 19th century regulations applied than no permit to carry should be necessary.
    They also had guns in stores then, you could walk in and buy one.
    If I wanted to back then I could have bought a machine gun legally or a cannon.

    Someone on that court has a huge bunghole to have pulled that feebly excuse out. Perhaps they should have sent their opinion by Pony Express.

  4. I know that the reason 2A cases aren’t taken up by SCOTUS is because of the uncertainty with Justice Kennedy’s decisions, but hasn’t an overwhelming majority of Kennedy’s 2A opinions been pro-2A?

    • Really, we don’t know *which* members of the Heller majority have been keeping 2A cases out and ***why***, other than the fact that two of them must be ‘defecting’, and it probably hasn’t been Scalia or Thomas, because they both signed Thomas’ dissent calling out the rest of the justices for ignoring the 2A.

      Kennedy, Roberts, Alito. Pick two.

      • Kennedy isn’t conservative, so forget him.

        It could very well be tactical on the part of Alito or even Roberts – a desire not to create a national precedent that will cut against gun rights. Heller was a 5-4 squeaker, and it’s easy to believe that Kennedy is now apt to retrench a bit. I’d say give it a couple of years to see if Trump gets to replace a lefty or center (Kennedy) Judge.

      • Obviously Roberts because he’s basically Justice Kennedy without the combover. I wouldn’t doubt it if all three of them are the cause for the lack of reviewing 2A cases.

    • It is not the task of SCOTUS to correct erroneous decisions from the lower courts, but to resolve splits of authority between two or more state courts of last resort and/or federal courts of appeal.

      In the alternative, SCOTUS grants cert if a lower instance’s decision is in blatant disrespect of standing Supreme Court precedent.

      But a bad decision resulting e.g. from a faulty appreciation of the facts brought before a court of law or simply a judge’s stupidity is not sufficient to make The Nine step in.

      That said, it is well possible that, say, Kennedy’s and Roberts’ lack of dedication to Heller was the cause for the rejection of Friedman v. Highland Park (the blatant-disrespect-for-SCOTUS-precedent criterium was more than fulfilled, imho), but that is rather seldom the culprit, I presume – Most cert petitions simply do not jump over the bar set by SCOTUS rules and thus do get thrown out without any sinister scheming on the part of the Justices at work.

      The question in this case is thus: Do we have a clear rule 10 split or a lower court in open defiance of SCOTUS authority or not? I don’t know the details here, so I can’t give an informed opinion, but I wanted to at least get the message across that not all undesired outcomes are necessarily due to political backstabbery.

  5. Did those judges really say that 18th and 19th century people couldn’t expect to immediately take possession of a firearm they bought? Really? I mean, it might take you an hour to hitch up the horses to the wagon, and a couple of hours to get into town. But once there, they could just walk into a hardware store and buy a gun, and walk out with it. No one thought anything odd about it in the least, or that they should pay for the gun, wait ten days and then come back to get it, I’m certain of it. Those judges are prevaricating leftist trash.

  6. “Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately…”

    How the heck did the 9th come up with this bit of nonsense?

    Travel was harder, so it was even more important from a practical standpoint. Making two separate trips to your hardware store was a lot of lost time.

    Try making that analogy with other tools or essential supplies.

    • Especially when they ***literally*** noted right afterward that the delays had nothing to do with state action!

      In the old days, people only got one news update per day, because newspapers only put out one daily edition, but that doesn’t mean the government can delay publication of news on the internet to once per day so that their fact checkers can confirm it’s all correct.

    • In 1968 I walked into a Western Auto in Michigan, plunked down some money and walked out with a rifle. No paperwork, nothing. Took all of 5 minutes. Those judges are just retarded.

  7. A major factor that influences whether the Supreme Court agrees to hear a case is whether the Court of Appeals in various circuits throughout the U.S. have ruled in conflicting ways (there are a total of 13 circuits…12 that apply here). The reason being that the Supreme Court views it’s role as the arbiter of the law of the land, i.e. to give guidance to the lower courts when faced with ambiguous issues. I have not researched it, but I’m not aware of any other rulings from other federal appellate courts on the waiting period issue. Therefore, I think it’s unlikely that the Supreme Court takes this case. Not necessarily because they are adverse to 2A cases, but because the court is asked to hear around 7,000 cases each year, and they select around 100-150 that concern issues that require clarification, in an effort to resolve the mixed opinions from various federal districts.

    • I completely agree. The Supreme Court is much more likely to address broad issues of national significance than a case that addresses solely the interests of the residents of a single state. However, it is possible that if the court takes Peruta, which asks the question as to the right to bear arms outside the home, the court could use that case to set clarify the rules bindign on all courts as to the standards of review applicable to 2A cases. AS it is, the Court’s Heller decision declined to address that issue, concluding that the law failed any test that coulsd be applied. The liberal courts took that as an opportunity to apply the sliding scale public interest test championed by the dissent (and rejected by the majority), concluding that cases outside the home are to be evaluated under intermediate scrutiny; but in practice, the actual test applied is far closer to “rational basis” that intermediate scrutiny, especially when some courts have concluded that all that is needed is a “feeling” that public safety is enhances to validate an intrusion into the right.

      • As much as I would like to see SCOTUS clarify the level of scrutiny due to the 2nd Amendmend once and for all in favor of “strict, always”, I don’t think the Peruta case, which to me seems bordering on the frivolous, is a good candidate for this. They’ve presented SCOTUS with a different question now than they brought before the 9th, and that doesn’t bode well for the competence of the plaintiff’s lawyers in the rather unlikely event of the Supreme Court granting cert and scheduling oral arguments.

        Norman v. State out of sunny Florida seems much more conducive to that end (it actually involves a clear rule 10 split and has the scrutiny issue near or at the case’s center as far as I understood it). Once the Florida Supreme Court has rejected Dale Norman’s petition for a rehearing, the way to D.C. should be free.

  8. Not sure I get throwing down over this in CA given all the other things that make it far worse to practice the 2A there.

    I mean, so they overturn the 10day waiting, so you can get your neutered AR15 or one of three approved handguns on the California approved handgun roster, right away. I’d take a 10day wait to get the good stuff vs the other way around.

    • It’s all about getting the Court to interpret the Second Amendment in a way that would be favorable in future, potentially more controversial issues.

      When the infringement is as seemingly non-sensical as a ten day waiting period for those who already own guns, our side has an ever so slight advantage in convincing the Court that “shall not be infringed” really means “shall not be infringed.” The reasoning the Court sets forth in so holding can then be applied to, say, an assault weapons ban or that stupid “not unsafe handgun” roster.

      De-segregation doesn’t stand solely on Brown v. Board of Education, and there are a whole bunch of decisions underlying it. Building a foundation for the Second Amendment won’t be any different.

    • But they are taking the roster to court too. The thing that worries me is that they need to strike down the whole roster, all the requirements, because microstamping is one thing, but may of the pistols that have fallen off cannot be added due to not having flag type loaded chamber indicators or magazine disconnects. Ruger did not add them to the Marl IV pistols, nor Glock in the Gen 4’s

  9. “Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately”
    I call your nonsense and raise you the Second Battle of Adobe Walls.

    • Yep the good’ol days when you could get machine guns delivered to your house from a Sears catalog. Libs must have fuzzy memory’s if any at all.

      • Nope. They have a perfect memory of history as it should have been (translation: as they need it to have been to justify the present action they want to take.)

        Oceania is at war with Eastasia and it always has been.

  10. In Florida if you don’t have a CCW there is a three day wait for handguns. I don’t think a three day “cooling off” period is a big issue. Ten days on long guns for people that already have permits is nuts. Anything over two or three days for handguns is nuts. Yeah I know most people don’t believe in any waiting period. Yeah that’s ideal.

    • Norincojay,

      A three day waiting period to pickup your firearm purchase may not seem like a big deal when your gun store is a 10 minute drive away. What about the people who live in rural areas who have to drive two, three, or even four hours to the nearest gun store? Two trips for those people is a HUGE burden.

      More importantly, no one should have to wait for all purchases of a given nature.

  11. I’m not holding my breath on this one. SCOTUS won’t even hear important carry cases so I have no doubt in my mind that this one will be denied a hearing. The Court makeup is still the same, 5-4 anti-gun because of the traitor Kennedy. It’s time for him to step down and for RBG to finally take a never-ending nap. Give us a true 6-3 pro gun majority.

  12. Next up is a ten day waiting period to exercise your first amendment rights! Stock fat and deep, big war coming StateSide™. The good news is it wont last long.

  13. Don’t bring up any gun cases until SCOTUS has another pro – RKBA judge. You are gambling with getting more taken away than you could benefit if the court decides to make a sweeping statement.
    Drop this one and wait until there is a stronger case when more pro RKBA justices are on the bench

  14. So… because someone in rural Maine got cut off from the nearest gun shop by snow for the winter on year in 1778 the government can stop you from buying a gun for a season right?

    Makes perfect sense.

  15. The 9th needs to be disbanded, the judges banned from practicing law and deciding cases for life, and they should be required to compensate We The People for their actions. At the very least, Congress needs to redefine the boundaries of the 9th to California and Hawaii so that we can limit the impact of their unconstitutional decisions.

    • The GOP (with Trump’s approval) is already proposing a bill to split up the”Nutty ninth”.

      “The Judicial Administration and Improvement Act of 2017 would create a new 12th Circuit Court of Appeals covering Alaska, Arizona, Idaho, Montana, Nevada and Washington state. The states remaining in the new 9th Circuit would include California, Oregon, Hawaii and the territories of Guam and the Northern Mariana Islands.”

      So CA would still be under the nutty ninth (along with fellow nutty bastions of progressiveness Oregon & Hawaii), but it would at least lessen their impact on the US overall.

  16. So the California government and its courts actually argued that it’s their duty to use government regulations restrictions to forcibly push people back into the year 1867.

    What’s next, a 9 month waiting period for women who want to get an abortion? Maybe they’d like to ban that newfangled polio vaccine while they’re at it.

    There was a 6-week minimum delay for news from the east coast to reach California back then, too. Maybe they should slap a mandatory waiting period on the press. None of this instant publishing crap. You can wait for news just like they did back in the Civil War.

  17. The CALGuns case is a very narrow case. (Intentionally) . They are not challenging California’s 10-day waiting period in general. Remember step by step…

    Specifically what they are challenging is the 10-day wait for persons who already own at least one firearm known to the State of California. Since Calif has actual registration through the DOJ, and outlawed private sales in 1991, the state knows if you own a gun purchased through legal commerce in the state.

    This is also why GALGuns is stating in their petition that the 9th was wrong as “a matter of law”. There is no legitimate argument the State of California can make at any level of scrutiny to delay the purchase of a firearm for someone already known to own one.

    Under strict scrutiny, any waiting period is obviously unconstitutional. Under Intermediate Scrutiny an anti-RKBA court can say “the state has a legitimate interest in “cooling off periods” or some such nonsense. There is no logical way to make that argument against someone who already owns a gun though.

  18. You can’t make California easier to buy firearms or I will lose my example of a place where it is harder to buy guns than Australia.

    Unfortunately true for California residents when I talked to a couple of gun shops staff last week. Hopefully things can improve.

  19. I want to know what AR15 add on are required to California legalize the AR rifle? Also, how much time do we have, since the courts have delayed the law? I would appreciate knowing where we are?
    Thank you for the help


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