Court Declines to Review California's Ten-Day Waiting Period for Gun Purchases

Steven D. Schwinn, John Marshall Law School

The Supreme Court today denied certiorari in Silvester v. Becerra, the Ninth Circuit ruling upholding California's ten-day waiting period for gun purchases against a Second Amendment challenge.

The denial is a blow to gun-rights advocates. It means that the Ninth Circuit ruling and California's ten-day waiting period stay on the books.

Justice Thomas filed a lone dissent, arguing that the Ninth Circuit didn't apply sufficiently rigorous scrutiny in judging the law and that the Court has given the Second Amendment second-class status in denying review in this and other Second Amendment challenges:

Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.

But the decision below did just that. Purporting to apply intermediate scrutiny, the Court of Appeals upheld California's 10-day waiting period for firearms based solely on its own "common sense." It did so without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without acknowledging the District Court's factual findings. This deferential analysis was indistinguishable from rational-basis review. And it is symptomatic of the lower courts' general failure to afford the Second Amendment the respect due an enumerated constitutional right.

If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.