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On February 9th, the Ninth Circuit Court of Appeals heard oral arguments for two Second Amendment cases. In Jeff Silvester v. Kamala Harris, the [lower] District Court ruled against the California statute requiring a waiting period for a firearm purchase. In the second case, Tracy Rifle & Pistol LLC. v. Harris, the lower court struck down the California law forbidding guns stores from advertising handguns with the image of, wait for it, a handgun. Let’s take a closer look . . .

The District Court ruling a firearms purchase waiting period ban unconstitutional is simple common sense. Mr. Silvester owned a gun. He’d already passed a background check. How can there be any significant government interest in forcing a gun owner to wait an additional 10 days to take possession of the firearm?

The argument that the 10-day delay is a “cooling off” period is patently ridiculous, again, given that the purchaser has legal access to other firearms. “There is no government public safety interest in a waiting period if you already own a gun and have gone through a background check,” Second Amendment Foundation founder Alan Gottlieb told “This is clearly only about a right delayed being a right denied.”

[Audio file oral argument Jeff Silvester v. Kamala Harris]

Eugene Volokh argued the Tracy Rifle & Pistol case. The idea that the State of California should be able to ban advertising to “protect” adult citizens violates the First Amendment, which protects Americans from government infringement on their right to free speech. Further, the ban was designed to chill the exercise of the Second Amendment protected right to keep and bear arms. It’s hard to see how the state can argue in favor of this, but try they do, mostly through obfuscation.

[Audio file link to oral argument Tracy Rifle and Pistol LLC v. Kamala Harris]

The Ninth Circuit is notoriously activist and statist. Even so, it’s hard to see how they could rule in favor of California laws that so clearly violate their residents’ gun and free speech rights. Still, watch this space.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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  1. What happened with the post about a barry appointee to scotus? And when will I be able to buy a gun(Since I already own bunches of legally purchesed guns) without a waiting period in CA?

    More importantly, when will the courts decide my civil rights are being massively violated in CA and order them restored?

    • I cannot speak to the first questions, however I expect your rights will not be fully restored until the Tree of Liberty is refreshed with the blood of patriots and tyrants.

      Hopefully that day never comes, however I fear that is all that may save the slave states from their oppression.

    • Get ready for a barrage of lower court rulings in prep for the stacking of the Barry court .Remember , lower court rulings stand when there is a 4 / 4 Supreme .
      I understand the blood will run in the streets talk , but the only blood that will be running is our blood if we believe we can fight a Fascist dictator , in control of the American military with our semi-auto AR’s and hunting rifles .
      Our hope is in Ted Cruz becoming the next Commander in Chief and reversing rulings , executive mandates and constitutional over rides and appointing federal judges and justices to the supreme that will uphold our gun rights and all our rights as free people of a constitutional republic .
      Our blood should be flowing now , coursing fast and hot in our determination to look past all crap that EVERYONE is throwing at Ted and get the man elected .

      • Once elected, politicians seldom seem to erase what their predecessors have done. Vote for Cruz/messiah if you wish, but the likelihood of him reversing anything Obama has done is slim.

      • “but the only blood that will be running is our blood if we believe we can fight a Fascist dictator , in control of the American military with our semi-auto AR’s and hunting rifles”

        History strongly disagrees with you.

        Two recent examples that disprove your theory:
        1 – The Soviets lost to cave dwellers with AKs and bolt-actions rifles in Afghanistan.
        2 – The U.S. has now effectively given up trying to conquer Iraq and most of Afghanistan. Once again the cave dwellers with small arms and IED’s are re-taking the ground that the world’s greatest has been unable to hold.

        These outcomes both occurred during asymmetrical conflicts where:
        1 – The larger army’s supply chains, manufacturing, and food sources were never vulnerable to attack (being on another continent).
        2 – The insurgents are clearly distinguishable from U.S. forces (clearly not American)
        3 – The insurgents are largely not college educated, military trained, or even literate in many cases.
        4 – The amount of firearms and ammo available to the insurgents was paltry at best. (Here in the U.S. there are roughly 10 Million more guns than people, and ammo to match.)
        5 – With two notable exceptions, no U.S. armed forces were tempted to defect or sabotage the war effort.

  2. The Ninth Circuit is notoriously activist and statist. Even so, it’s hard to see how they could rule in favor of California laws that so clearly violate their residents’ gun and free speech rights

    Except Scalia is dead. If either of these cases are ruled against guns and they try to push them to SCOTUS, we’ll get our asses handed to us.

  3. Why not apply the Tracy vs Harris case against every form of advertisement here in CA? Seems especially crackpot of the Ninth to uphold this sort of stupidity, but of course this is the 9th Circuit Court of Sillywonks.

    As for the Silvester vs Harris case, I’m sure cities or counties will find a loophole that allows them to continue requiring a wait period without any significant cases coming up to force the state to act in the true best interest of the citizenry.

    Just another sunny day here in Limitedrightsland.

  4. Even the Ninth will rule against the Advertisement ban. During the whole destroy all cigarette companies period even the 9th ruled that cigarette ads are free speech and could not be banned by government.

    The waiting ban, not so much. They will call it reasonable.

    • Even the ninth will rule against the advertising ban .
      Afraid not . This is a time when all the lower progressive courts will rule against gun rights .
      The lower court rulings are law when there is a 4 / 4 Supreme until a ninth judge can be confirmed and seated .

  5. 10 day wait will continue because there’s no registry for guns. How does CA know the buyer has purchase a gun? Unless the have a list somewhere.

      • And although the DOJ (and more than a few FFLs ) will vehemently deny that the state has a gun registry, the fact of the matter is that the State has an electronic record of every handgun purchased since 1991 and every long gun since 2015., as well as every firearm imported into the state by someone who moved here since then and has complied with the declaration requirement. Further, it is safe to assume that everyone who has a CCW or a COE has at least one firearm.

        • You are correct. My gun was verified by IL sheriff (who thought I was a drug mule) via a phone call to CA. People of the gun need to stop thinking the state doesn’t know about your armaments. And CA will pass a law requiring retro active registration of rifles with detachable mags. Then a card to purchase Ammo. Then confiscation or making you a felon for every mag over 10 rounds. It’s never going to end. Once they’re done with those restrictions they’ll go after black powder, then sling shots, then rocks, then sticks over 10 inches, which includes arrows so no more bows. They will deconstruct everything used to lawfully defend yourself, while early releasing criminals.

          Ok rant over.

  6. Actually a good way to middle finger the CA tyranny is since airsoft guns are legal and most are heavily based on real guns, they could advertise with airsoft gun look a likes. and since for a gun to be legally an airsoft gun it has to have an orange tip, hence jack shit the tyranny can do about it.

  7. I live under the auspices of the 9th circuit. I can promise you with very little fear of being proven wrong.

    With the likelyhood of a 4/4 split in a supreme court being a likely outcome, and that meaning the lower court ruling stands.

    The 9th circuit will NOT go against Kamala Harris who is a strong up’n’comer here in the gold-less-state. This will not stand. We will NOT lose the waiting period, nor any other democrat favored gun legislation anytime soon.

    The will of the people, the law, the constitution, will not be a factor in their decision. It will be a purely political ruling.

  8. As a First Amendment issue, the ban on free speech would be subject to strict scrutiny. However, commercial speech is not highly regarded in American jurisprudence. The controlling case will likely be 44 Liquormart, Inc. v. Rhode Island. It’s not all that good for us.

  9. The Ninth Circus does whatever the hell it wants. It’s the most overturned circuit in the nation. However, with Nino dead and gone, the likelihood that they get overturned on this is a lot slimmer than it was two weeks ago. Assuming they overturn the waiting period decision. Which in my book is a good assumption.

    • Scalia’s death doesn’t figure into this just yet. Based upon typical SCOTUS practice, this case would take at least a year to get from the 9th Circus to SCOTUS, and maybe more than that. By that time, who knows what the composition of the Court will be.

  10. Dean’s article leaves out a few important details. First, the 10-day wait case applies only to those who already own at least one firearm, as provided either by a record with the DOJ, a CCW, or a COE. No argument was made as to persons who do not own any firearms. Second, the primary objective of the waiting period ,as reflected int he Legislative history, was not a “cooling off” period, but instead a sufficient period of time for the State to run a background check. (California has its won system and its own employees doing checks, and relies only in part5 on a NICS check). The length of time has varied over the years, and once stood at 15 days.Evidence submitted that at least 20% of all background checks clear within 1 DAY (and in as little as 1 hour). I can’t remember the percentage, but most of the rest are cleared within 6-8 working days, with only a small percentage taking longer. Given the fact that it does not take the State the full 10 days to clear the majority of checks, the DOJ asserted the “cooling off” period justification, a justification that (a) was not asserted or relied upon by the Legislature in setting any of the waiting periods to date, and (b) makes no logical sense for any person who owns firearms (except the “well, he could have gotten rid of it…” argument the DOJ presented). The DOJ’s remaining argument was that it would just be too damned expensive to perform the checks more efficiently, and so it didn’t matter that it was done with some and not others, all would be held. The trial court found the argument and evidence by the DOJ lacking.

    The second case is an attack on a rather unique California statute that banned the depiction of handguns–but not long guns– on any sign or in the window of any store. So it was not a “deceptive advertising” statute, but one specifically enacted to prevent (or realistically reduce) “impulse” purchases, because those would be bad. Umm hmm. With the 10 day wait, no one can but a handgun on “impulse.” What Dean gets wrong is that the trial court did not uphold the statute, rather quite the contrary. Instead, even though indicating in his decision that it seemed likely the statute would fail to pass constitutional muster, he denied to grant a preliminary injunction barring prosecutions under the statute. So even if the 9th Circuit affirms, the case will still go back down for trial to a court that will not be looking favorably on the statute.

  11. Look down the list fellow Californians, Silvester, Peruta, the list goes on and on. We are playing three card Monty here and the State is the one shuffling around the cards. We will NEVER have an actual win here, we will have “rulings in our favor”, which are promptly smothered by the Attorney General, LEAs and or the cities. The AG, and the legislators have the power and connections and have decided that we will be disarmed whether it takes 10 or 20 years, they are in it for the long game. Handgun roster, AW ban, ammo registration, it’s all to the same end and they will reach that end of wiping out the private ownership of guns (except for the hired guns protecting the legislators) as soon as they can.

    We have not played an effective game and they won. All we are doing now is delaying the inevitable.

  12. We will NEVER have an actual win here, we will have “rulings in our favor”, which are promptly smothered by the Attorney General, LEAs and or the cities.

    Yet when there is a SCOTUS or circuit ruling in favor of a leftist cause (i.e. ghey marriage) the states and counties stay open through midnight that same day implementing the new ruling and pushing through as many as they can. For some reason, Bernie doesn’t mention about that true “rigged system”.

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