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Silvester v. Harris: Watered-Down Intermediate Scrutiny

Joseph Greenlee December 20, 2016
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In Silvester v. Harris, the Ninth Circuit Court of Appeals upheld a California law requiring a 10-day waiting period for all firearm purchases, as applied to purchasers who already own a firearm and concealed carry permit holders. The plaintiffs argued that they should be able to possess their purchased firearm as soon as their background check is completed. The government argued that the 10-day waiting period provides a much needed “cooling off” period, even when the purchaser already owns a firearm.

The court upheld the law under a rational-basis equivalent disguised as intermediate scrutiny. In D.C. v. Heller (2008), the Supreme Court made clear that something greater than rational basis is required for Second Amendment challenges:

Obviously, [rational-basis scrutiny] could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right. ... If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

To evade this declaration, which would create an insurmountable hurdle for a significant number of gun-control measures, courts hostile to the right to keep and bear arms have consistently applied a watered-down version of intermediate scrutiny to uphold unconstitutional regulations. Courts vary in their approach as to how they weaken intermediate scrutiny from case to case (see constitutional scholar David Kopel’s analysis of a 2015 case, entitled “The 2nd Circuit’s second-class Second Amendment intermediate scrutiny”) but the lower courts’ consistent lack of regard for the Second Amendment is unmistakable.

The Ninth Circuit – which recently upheld a firearms ban on a law-abiding, non-drug-using, medical marijuana cardholder based on studies about violent criminals’ use of illegal drugs in general that the court did not even review – is no stranger to watered-down intermediate scrutiny. Silvester is just another example of the court’s application of it.

In Silvester, the court selected intermediate scrutiny in part because “[t]he waiting period does not prevent any individuals from owning a firearm,” but “simply requires them to wait.” Of course, waiting for a firearm can be fatal. One tragic example occurred last year, when Carol Browne was stabbed to death in her driveway by her ex-boyfriend (whom she had a restraining order against) while awaiting a gun permit.

The court also deemed intermediate scrutiny appropriate because:

There is, moreover, nothing new in having to wait for the delivery of a weapon. Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately upon deciding to purchase one. As a purely practical matter, delivery took time. Our 18th and 19th century forebears knew nothing about electronic transmissions. Delays of a week or more were not the product of governmental regulations, but such delays had to be routinely accepted as part of doing business. It therefore cannot be said that the regulation places a substantial burden on a Second Amendment right.

This argument is untenable. It justifies unnecessary delays in the present day by pointing to unavoidable delays in the past. The two are not equivalent. What is more, the Ninth Circuit would never show the same disregard for the First Amendment. Imagine if a Republican-controlled-Congress imposed a 10-day waiting period before The Huffington Post could post any article, and justified it by explaining that historically readers were used to waiting, when newspapers were printed by hand-operated presses, then delivered from town to town by a man on horseback:

There is, moreover, nothing new in having to wait for the delivery of a [newspaper]. Before the age of superstores and superhighways, most folks could not expect to take possession of a [newspaper] immediately upon deciding to purchase one. As a purely practical matter, delivery took time. Our 18th and 19th century forebears knew nothing about electronic transmissions. Delays of a week or more were not the product of governmental regulations, but such delays had to be routinely accepted as part of doing business. It therefore cannot be said that the regulation places a substantial burden on a [First] Amendment right.

It is unimaginable that the Ninth Circuit would treat the First Amendment as it has the Second Amendment. Thus, it has “singled out [the Second Amendment] for special—and specially unfavorable—treatment” as a “second-class right,” contrary to Supreme Court instruction.

In applying intermediate scrutiny, the court continued to treat the right to keep and bear arms as a “second-class right.”

First, the court did not require the government to prove that the waiting period – as applied to persons who already own a firearm – was sufficiently related to preventing gun violence or self-harm. Instead, the court justified the waiting period as it applies to all purchasers, but of course making a purchaser wait for his first gun serves more purpose than making him wait his fifth gun.  

The court also argued that a gun owner might want to purchase a particular firearm that will do more damage “when fired into a crowd,” and that “[a] 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home identified in Heller.” The court did not provide a single example of this ever happening, and it ignored that most mass-shootings are meticulously planned for weeks, months, or even years in advance. Nor did the court sense the irony in concluding that keeping a better suited firearm from an offensive shooter substantially furthered the government’s interests, but keeping a better suited firearm from a defensive shooter “would impose no serious burden” on the plaintiffs’ interests.  

Second, the court failed to consider less burdensome alternatives. As recently as 2014, the Supreme Court reaffirmed that in the First Amendment context, under intermediate scrutiny “the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier.” In the Second Amendment context, Justice Breyer followed this approach in his Heller dissent, where he applied an intermediate scrutiny-like balancing test, which required him to consider “reasonable, but less restrictive, alternatives.”

Some Circuits have faithfully considered less burdensome alternatives in Second Amendment cases, including the Seventh, Ninth, Tenth, and D.C. Circuits; but many have abdicated that duty. While a Ninth Circuit panel considered a less burdensome alternative in Jackson v. City & Cty. of San Francisco, the Silvester panel did not.

Perhaps because less burdensome alternatives to the law existed. Since the legislature was clearly concerned about establishing a cooling-off period for handgun sales, a less burdensome alternative would be a waiting period that applied only to handguns and not long guns. Further, the most significant study the court relied on to uphold the law “confirmed that firearm purchasers face the greatest risk of suicide immediately after purchase, but the risk declines after one week.” Thus, the evidence showed that a one-week waiting period is less burdensome yet equally effective as a 10-day waiting period. More on point, a shorter waiting period for firearm owners would be less burdensome, and no evidence cited by the court proved that it would be any less effective (and despite the court’s reliance on “common sense” it makes no sense to suggest that someone intent on committing suicide would wait 10-days for his new handgun when he already owns a shotgun).

Since Heller, lower courts have consistently chipped away at intermediate scrutiny, weakening it to whatever extent necessary to uphold the specific gun regulation currently before the court. As Kopel concluded in his aforementioned article, “[b]y repeatedly claiming that weak intermediate scrutiny is genuine intermediate scrutiny, courts … are planting precedents that future courts could use to impose weak intermediate scrutiny throughout the Constitution. Thus, lower court evisceration of intermediate scrutiny . . . creates a threat well beyond the infringement of Second Amendment rights.”

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