Cali 2A win

[mikeyp]

http://www.calgunsfoundation.org/20...mendment-challenge-10-day-waiting-period-ban/

[h=1]Silvester v. Harris Case Update (CGF’s Second Amendment challenge to 10-day waiting period ban)[/h]on December 9, 2013 in Blog
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.
​

 

[Knuckle Dragger]

Good find and an important win. But it's just a 'battle' win rather than a 'war' win. California will still have another opportunity to defend their law once the plaintiffs submit their motion for summary judgement.

 

[soloman02]

Good find and an important win. But it's just a 'battle' win rather than a 'war' win. California will still have another opportunity to defend their law once the plaintiffs submit their motion for summary judgement.

CA will appeal it to the ninth as will CGF. Then from there it is debatable whether CA will appeal if they lose, but it is certain that CGF will appeal to SCOTUS if they lose at the ninth.

 

[Hoover]

CA will appeal it to the ninth as will CGF. Then from there it is debatable whether CA will appeal if they lose, but it is certain that CGF will appeal to SCOTUS if they lose at the ninth.

There is a huge issue with any lawsuit for guns or anything else in CA. That 9th circuit is brutal, it's so liberal and activist.

 

[noddaduma]

There is a huge issue with any lawsuit for guns or anything else in CA. That 9th circuit is brutal, it's so liberal and activist.

Not necessarily. Depends on where the specific judges get drawn from (think Alaska, Idaho, Montana). It has stacked up in our favor before.

 

[Hoover]

Not necessarily. Depends on where the specific judges get drawn from (think Alaska, Idaho, Montana). It has stacked up in our favor before.

CA is 10% of the US population (55 congressmen out of 435 total). They dominate that circuit, OR, WA and AZ are ok size but combined not even 1/2 of CA and WA and OR are pretty damn liberal anyway. They have the process of getting the ok from senators from a given state for judge nominees. The next R needs to ignore that and jam very conservative judges down Feinstein and Boxer's throats.

 

[xtry51]

A small battle victory in a mountain of losses in the war. For every law you struggle through the courts to overthrow they pass a hundred.

 

[Knuckle Dragger]

A small battle victory in a mountain of losses in the war. For every law you struggle through the courts to overthrow they pass a hundred.

That's certainly true in California. No other state continually and aggressively pursues curbs on the Second Amendment they way they do.

This victory is small in that it only allowed the suit to survive a motion to dismiss on the part of the defended giving them another opportunity to plead their defense. However, the decision all but gutted their defense and while they'll get another chance, they're going to have to be much more creative when they actually get to argue the merits.

What is hugely important is that the judge significantly raised the bar in terms of what level of scrutiny a law has to meet when a 2A related right is being regulated. Most courts have been very reluctant to draw a line on scrutiny. We need more of them to do it.

 

[hunt4riches]

Good find and an important win. But it's just a 'battle' win rather than a 'war' win. California will still have another opportunity to defend their law once the plaintiffs submit their motion for summary judgement.

You'll have my full attention when they take an ax to the "bullet button" law.

 

[Waher]

Update for 2014, the state of CA lost their appeal
http://www.nationalreview.com/corne...iod-deemed-unconstitutional-charles-c-w-cooke

A CIVIL RIGHTS VICTORY: California’s Firearms Waiting Period Deemed Unconstitutional. “California’s 10-day waiting period for gun purchases was ruled unconstitutional by a federal judge this morning in a significant victory for Second Amendment civil rights. The laws were challenged by California gun owners Jeffrey Silvester and Brandon Combs, as well as two gun rights groups, The Calguns Foundation and Second Amendment Foundation. In the decision released this morning, Federal Eastern District of California Senior Judge Anthony W. Ishii, appointed to the bench by President Bill Clinton, found that ‘the 10-day waiting periods of Penal Code [sections 26815(a) and 27540(a)] violate the Second Amendment’ as applied to members of certain classifications, like Silvester and Combs, and ‘burdens the Second Amendment rights of the Plaintiffs.’”

 

[Knuckle Dragger]

Stay DENIED!


BREAKING: California 10-Day Period for New Firearm Sales is Still Dead

Volokh

The Court does not know how Defendant or the BOF prioritizes projects, but dealing with an unconstitutional law should be towards the top of the list.

 

[standfast86]

BREAKING: California 10-Day Period for New Firearm Sales is Still Dead

Volokh

Clinton appointee no less lol!

 

[wolfenkraft]

What are the "classifications" that the plaintiffs fall into though? That wording makes me suspicious. Maybe this isn't a blanket win after all

 

[LittleCalm]

and "burden". what standard did the court apply? any "burden" would be good?

 

[Knuckle Dragger]

Clinton appointee no less lol!

We've gotten good decisions out of Clinton appointees and even a couple of Obama's appointees. 2A cases almost always have some first impression component and it's dangerous to make assumptions solely based upon a judge's political affiliation.

What are the "classifications" that the plaintiffs fall into though? That wording makes me suspicious. Maybe this isn't a blanket win after all

The plaintiffs here already owned guns, so it's specious for the government to argue that there's some compelling governmental interests (such as a 'cooling off' periods or the need for a deeper background investigation) at stake in forcing them to wait 10 days when acquiring additional guns.

 

[Knuckle Dragger]

In case you weren't following this case, CA AG Kamal Harris appealed this loss. Silvester filed his answer to the AG's brief on Tuesday.

 

[Knuckle Dragger]

In case you weren't following this case, CA AG Kamal Harris appealed this loss. Silvester filed his answer to the AG's brief on Tuesday.

By request, here's the AG's Opening Brief in the appeal.

Links to the entire case docket can be accessed from Chuck Michel's website.

 

[Knuckle Dragger]

Ninth Circuit Grants Priority Status in Silvester 10-Day Waiting Period Case

I had the opportunity to spend some time with attorney Kilmer a couple of weeks ago. This is a great step forward considering how many cases are backed up behind Peruta.

 

[Knuckle Dragger]

California appealed this to the Ninth Circuit. Oral arguments were held yesterday: https://www.youtube.com/watch?v=0ckV3GClfq8

Enjoy

 

[xtry51]

God that is one dry back and forth there. I can't believe people voluntarily live on places with laws like that.

 

[Glock1911]

did they get rid of that push bottom tool?

 

[VetteGirlMA]

California appealed this to the Ninth Circuit. Oral arguments were held yesterday: https://www.youtube.com/watch?v=0ckV3GClfq8

Enjoy

I don't know how you think that is enjoyable. I could only take a few minutes of that guy at the podium droning on. It still amazes me how this one particular right has whittled down and that some people can justify literally any excuse to limit it further.