Renewing a legal battle that some had considered settled, gun rights advocates filed a federal lawsuit this week challenging a California law that places a 10-day waiting period on most firearm purchases.
The law, which requires people to wait the prescribed “cooling off” period even if they’ve passed a more immediate background check, is aimed in part at deterring people from rushing to harm themselves or others with newly purchased weapons during periods of sudden distress or anger.
Gun control advocates and state officials say the law reduces gun violence, including suicides, and the law has been upheld in the face of legal challenges before — including by the U.S. Supreme Court, which in 2018 declined to hear an appeal to a lower court decision upholding it.
However, things have changed since the high court ruled last year — in New York State Rifle & Pistol Assn. vs. Bruen — that restrictions on firearms violate the 2nd Amendment if they aren’t deeply rooted in the nation’s history or analogous to some historical rule.
According to the San Diego gun owners and advocacy groups suing the state, the high court’s 2018 decision allowing the waiting period law to stand was “abrogated,” or undone, by its more recent Bruen decision, and, therefore, the law is unconstitutional under the court’s newer historical standard.
The plaintiffs argue enforcement of the law “prevents law-abiding people from taking possession of lawfully acquired firearms for immediate self-defense and other lawful purposes — even after [state officials] know the individual is eligible to exercise their fundamental, constitutionally protected right to keep and bear arms.”
“A right delayed,” they argue, “is a right denied.”
The office of California Atty. Gen. Rob Bonta said it was reviewing the lawsuit Tuesday but could not otherwise comment. Bonta is the lead defendant in the lawsuit.
According to legal experts, the revived challenge reflects how massively the legal landscape around gun laws has changed since President Trump shifted the Supreme Court to the right and the court issued its Bruen decision.
It also reflects the increased confidence among gun rights advocates that the high court is ready and willing to overturn more gun laws, the experts said — even those it may have allowed to stand in the past.
Jake Charles, an associate professor at Pepperdine Caruso School of Law and an expert in firearms law, said he was “surprised it took until May of this year” for the waiting period law to be challenged again under Bruen — in part because it is obviously vulnerable.
Prior to Bruen, federal courts across the country judged gun laws not only through a historical lens, but by assessing whether they served a well-reasoned purpose of modern government.
When the California-based U.S. 9th Circuit Court of Appeals upheld California’s 10-day waiting period law in 2016, it did so based on such a review. Writing for the court, Circuit Judge Mary Schroeder found that the 10-day waiting period was “a reasonable safety precaution,” and therefore constitutional.
“We do not need to decide whether the regulation is sufficiently longstanding to be presumed lawful,” Schroeder wrote.
Now, however, Bruen has changed the relevant legal analysis and Schroeder’s reasoning is now irrelevant, the plaintiffs argue.
The law must be considered solely through a historical analysis, which it doesn’t survive, they argue, because waiting period laws were not enacted in the country until 1923 — making them too recent to be considered part of the nation’s tradition under Bruen.
“California’s Waiting Period Laws, and [state officials’] enforcement of them, are not analogous to any constitutionally relevant history and tradition of regulating firearms,” the plaintiffs argue. “Thus, the Waiting Period Laws must be declared unconstitutional and enjoined.”
Gun law experts said it’s a strong argument.
“Now with the Bruen decision, the central question is going to be whether the waiting period is consistent with historical tradition, and that seems like an uphill battle,” said Andrew Willinger, executive director of the Duke Center for Firearms Law.
“If you’re applying Bruen really strictly and requiring a really close analog, then it looks like they have a really strong case,” Charles said.
Attorneys for California may still argue the law is similar enough to some historical law that didn’t institute a waiting period for purchased weapons but restricted the purchase of them in some other way. The state has already argued that other modern gun laws being challenged — including its bans on assault-style weapons and high-capacity magazines — are similar enough to other historical laws to survive Bruen’s test, even if they aren’t exactly the same.
Charles said courts across the country have been interpreting what constitutes an “analogous” law for the purposes of Bruen differently, in part because the decision provided “really little guidance on how to perform that task.”
In light of that, he said, judges in California could come down either way on whether the waiting period law is sufficiently similar to some historical law to be constitutional.
“Lower courts are all over the place on how to do this,” Charles said.
He and Willinger said the state also might argue that the waiting period law is not an infringement on gun ownership, but a justifiable regulation on the commercial sale of firearms — which separate Supreme Court precedent has allowed for in the past.
This story originally appeared on LA Times