Specifically, people who have already gone through the ten-day waiting period once, and have guns, shouldn’t have to do it again. Here is the complaint filed on behalf of CalGuns and the Second Amendment Foundations:
Ten Days To Allow The Department of Justice to Investigate Prospective Purchasers and
To Allow Repeat Purchasers To “Cool Off” Is An Infringement
48. Ten days to allow the Department of Justice to investigate prospective purchasers and to allow repeat purchasers to ―cool off‖ is an infringement on the purchaser’s fundamental right to keep and bear arms in their home.
49. The need for balance between processing a requisite background check and preserving the individual’s right to acquire firearms for the home in a timely manner has already been made on a federal level. The Brady Handgun Violence Prevention Act (Pub.L. 103-159, 107 Stat. 1536) is an Act of the United States Congress that, for the first time, instituted federal background checks on firearm purchasers in the United States as well as a federally mandated five-day waiting period.
50. The Brady Bill provided that, in 1998, the five-day waiting period for handgun sales would be replaced by an instant computerized background check that involved no waiting periods. Specifically, the National Instant Criminal Background Check System, or NICS, is stated to be about saving lives and protecting people from harm—by not letting firearms fall into the wrong hands. It also ensures the timely transfer of firearms to eligible gun buyers.
51. Mandated by the Brady Handgun Violence Prevention Act of 1993 and launched by the FBI on November 30, 1998, NICS is used by Federal Firearms Licensees (FFLs) to instantly determine whether a prospective buyer is eligible to buy firearms.
52. More than 100 million such checks have been made in the last decade, leading to more than 700,000 denials.
53. NICS, located at the FBI’s Criminal Justice Information Services Division in Clarksburg, West Virginia, provides full service to FFLs in 30 states, five U.S. territories, and the District of Columbia. California voluntarily opted out of the NICS instant background check and maintains their own background check system with an extended ten-day waiting period against purchasers of firearms in California, including Plaintiffs herein.
54. Plaintiffs already have firearms.
55. Plaintiffs have lawfully purchased a handgun within the State of California or can otherwise demonstrate proof of ownership and lawful possession of said firearms. For example, some firearms are registered in the California Automated Firearms System database pursuant to, inter alia, Penal Code section 28200, et seq. In purchasing their firearms, Plaintiffs were already once subjected to the Penal Code section 27540 subdivision (a) ten-day waiting period prior to physically receiving their firearms. As a result of the ten-day waiting period, Plaintiffs were obligated to endure a ten-day ban on the acquisition of their constitutionally protected firearms and incur additional expense
by being forced to make a second visit to the firearms dealer that sold Plaintiffs their firearms.
63. Plaintiffs already own and have access to their own firearms. In all instances, Plaintiffs are recorded by the state as being in possession of at least one firearm. Plaintiffs seek to purchase additional firearms whose possession for the purposes of self- defense in the home is protected by the Second Amendment. Penal Code sections 26815 and 27540 unnecessarily require an additional ten-day waiting period for each subsequent firearm transaction, thus barring Plaintiffs from acquiring and using their own firearms protected by the Second Amendment during the ten-day period following their purchase, as well as causing them to incur additional expenses, travel, and time lost resulting from the otherwise unnecessary return to the dealer to accept delivery
I wonder if any court or brief will make an analogy between waiting periods for abortion under Casey and waiting periods for obtaining a firearm?
Here’s the beef.
66. Penal Code sections 26815 and 27540, as well as Defendants’ enforcement of the same prohibit, substantially interfere with, inhibit access to, and infringe upon the right to possess firearms in the home for those individuals represented by CGF and SAF, including Plaintiffs and improperly impede gun ownership itself.
67. Penal Code sections 26815 and 27540 render access to firearms for use in the home materially more difficult to obtain, by requiring multiple visits to the firearms retailer, increasing the expense of purchasing a firearm, and, more importantly, barring access to and possession of constitutionally protected firearms by Plaintiffs – leaving no sufficient alternative avenues for obtaining firearms for self-defense purposes during the ten-day waiting period.
68. By maintaining and enforcing a set of laws banning Plaintiffs access to firearms
whose possession is protected by the Second Amendment, Defendants are propagating customs, policies, and practices that violate the Second Amendment to the United States Constitution, facially and as applied against the individual plaintiffs in this action, thereby harming plaintiffs in violation of U.S.C. §1983. The Second Amendment applies to the states, including California, through the Fourteenth Amendment. Plaintiffs are therefore entitled to declaratory, preliminary, and permanent injunctive relief against such improper customs, policies, and practices
69. Paragraphs 1 through 68 are incorporated as though fully stated herein.
70. Defendants’ policies and enforcement of Penal Code sections 26815 and 27540 violate Plaintiffs’ rights to equal protection under the law as guaranteed by the Fourteenth Amendment to the United States Constitution, in that Defendants allow some people, such as destructive device collectors, movie prop houses, auction purchasers, ―consultants-evaluators,‖ and others, instant access to firearms, which instant access is denied to Plaintiffs and the general public. Such misapplication of the law is arbitrary, capricious, irrational, and makes unjustifiable distinctions between those individuals that Defendants deign to exclude from immediate delivery of firearms and those they do not. Defendants are thereby propagating customs, policies, and practices that violate the Fourteenth Amendment to the United States Constitution, facially and as applied against the individual plaintiffs in this action, thereby harming Plaintiffs in violation of 42 U.S.C. §1983. Plaintiffs are therefore entitled to declaratory, preliminary and permanent injunctive relief against continued enforcement and maintenance of Penal Code section 27540 subdivision (a) and Defendants’ unconstitutional customs, policies, and practices.
For purposes of full disclosure, a number of my friends and colleagues are members of both of these groups, but I had absolutely nothing to do with this instant litigation. In other Second Amendment related news, I will be speaking at a Second Amendment conference in January on the Second Amendment’s Social Cost. Also Ilya Shapiro and I will reprise our Ilya-and-Josh show and talk about privileges or immunities. It will be fun!