California’s Gun Purchase Waiting Period: A History of the Future

36 California Litigation Reporter __(Sept. 2023)

Thomas Jefferson School of Law Research Paper No. 4510925

13 Pages Posted: 19 Jul 2023

Date Written: July 17, 2023

Abstract

California’s gun purchase waiting period is being relitigated as a result of the U.S. Supreme Court’s 2022 Bruen decision. Richards v. Bonta was thus filed in a San Diego federal court on May 1, 2023. Bruen’s majority opinion substituted an “historical tradition” yardstick for the ubiquitous scrutinization measure that had balanced governmental and individual interests in the laws at issue.

This article is the second of two Bruen-related analyses for the Litigation Section of the California Lawyers Association. The earlier one set the stage for the then pending Bruen options. Slomanson, Second Amendment: The Dozen Yardsticks for Measuring its Scope, 34 CALIFORNIA LITIGATION REPORTER 37 (2021). This second essay addresses the extraordinary challenges presented by Bruen’s new historical test─within the context of California’s 10-day gun purchase waiting period. The Richards rehash claims that:

A right delayed is a right denied … by [our] suffering at least a 10-day ban on the possession of that [purchased] arm−even when the State has confirmed, often within minutes of the application, that the person is eligible to acquire firearms.

The Bruen majority acknowledged the difficulty of substituting its manipulable historical approach for the traditional scrutiny-oriented balancing standard. The dissent and concurring opinions joined in articulating this challenge. For example: “Scholars have proposed competing and potentially conflicting frameworks for this analysis … [So] limits on the permissible use of history may vary…. The historical inquiry presented in this case does not require us to answer such questions….” Bruen, (Barrett, J., concurring).

One hopes that the US Supreme Court’s 2024 Rahimi opinion takes aim at alleviating the decades of future Second Amendment litigation triggered by Bruen’s historical approach. The 5th Circuit Court of Appeals reversed Rahimi’s conviction under the federal statute prohibiting possession of firearms by someone subject to a domestic violence restraining order. Assuming (quite safely) that the Supreme Court’s Sisyphean task will not be completed in Rahimi, California’s Richards waiting period litigation is likely to substantially move that needle within several years of the Rahimi result. Richards has the potential to trigger far more U.S. Supreme Court gun testing than any other case now percolating in the state and federal trial and appellate courts.

Keywords: Gun rights and control; Public safety; Constitutional law; Second Amendment; Historical tradition; U.S. Supreme Court; State and federal litigation

JEL Classification: H7, H70, H80, I3, I31, K11, K13, K14, K23, K4, K40, K42

Suggested Citation

Slomanson, William R., California’s Gun Purchase Waiting Period: A History of the Future (July 17, 2023). 36 California Litigation Reporter __(Sept. 2023), Thomas Jefferson School of Law Research Paper No. 4510925, Available at SSRN: https://ssrn.com/abstract=4510925 or http://dx.doi.org/10.2139/ssrn.4510925

William R. Slomanson (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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