Silvester v. Harris Case Update (CGF's Second Amendment challenge to 10-day waiting period ban)

Update 12/9/13:
In an order issued today by Senior Federal District Judge Anthony Ishii, defendant California Attorney General Kamala Harris' Motion to Dismiss our Second and Fourteenth Amendment lawsuit challenging the state's 10-day waiting period (ban) as unconstitutional was denied outright. Said the Court:

The WPL as applied against those who have previously purchased firearms or who possess
certain state licenses is the equivalent of a prior restraint, and thus should be analyzed under strict
scrutiny. However, under either strict scrutiny or intermediate scrutiny, the [10-day waiting period] fails. In terms
of strict scrutiny, Harris has not shown that the law is effective either in reducing gun violence or
in keeping firearms out of the hands of unqualified purchasers where the government has already
issued that purchaser a License To Carry or a Certificate Of Eligibility.
In terms of intermediate scrutiny, neither of the bases argued by Harris is sufficient. There
is no indication that the WPL is necessary to weed out unqualified purchasers. While it is
appropriate to have a background check, the current systems and data available do not make the
10-day waiting period reasonable. In terms of cooling-off, there is no evidence to support the
efficacy of the law in preventing impulsive firearm violence. Moreover, for those who already
legally possess firearms, the WPL would have no effect in terms of creating a “cooling off”
period. Any spontaneous desire to perform a violent act can be manifested through the weapon
that is already in the individual’s possession. Because the WPL fails intermediate and strict
scrutiny, Harris’s motion must be denied.
Harris moves for summary judgment on each of the claims alleged by Plaintiffs. With
respect to the Second Amendment claims, Harris has not sufficiently met her burden. Harris has
not presented sufficient evidence to show that the WPL passes either intermediate or strict scrutiny
for either the “background check” rationale or the “cooling off period” rationale. With respect to
the Equal Protection claims, Harris has focused exclusively on rational basis scrutiny. However,
Harris has not adequately demonstrated that rational basis scrutiny is appropriate. Therefore,
Harris’s motion for summary judgment will be denied in its entirety.

Read the full order denying the defendant's MSJ at

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