If a gun owner in California wants to buy a gun but is discouraged from doing so by having to wait 10 days for a background check to be completed, he has been denied his Second Amendment right to possess a weapon.

At least that’s the interpretation of the Constitution by U.S. District Judge Anthony W. Ishii, whose August 22 ruling (pdf) was released this week. “The 10-day waiting period burdens the Second Amendment right to keep and bear arms,” Ishii said. He struck down provisions of the state’s penal code that require lawful gun owners to undergo the check, but said a first-time arms purchaser can’t avoid it.

The lawsuit did not challenge the 10-day wait for first-time buyers. The ruling is on hold for six months while the state considers taking the case to the U.S. Court of Appeals for the Ninth District.

Gun control advocates suffered a setback there in February when a three-judge panel ruled 2-1 (pdf) that restrictions put in place by San Diego County under a California law—giving counties the right to restrict concealed-gun permits to people with a good reason to pack heat—violated the Second Amendment by requiring that an applicant show “good cause” to carry a gun.

They should pretty much only have to indicate they want a gun for protection, the court said. That decision has been appealed to the full 11-member appellate court.

The plaintiffs argued that gun owners have already undergone a background check and that the 10-day wait was arbitrary and unnecessary. Supporters maintain that the wait provides a cooling-off period for suicidal and angry purchasers, but gun owners said that point was moot for them since they already had weapons.

The California Attorney General’s Office, which defended the laws, argued that no one was being denied a weapon. At most, they were being modestly inconvenienced. The laws served fundamental public safety interests of keeping guns out of the hands of the wrong people at the wrong time. Even people who own guns might benefit from a cooling-off period if they were loading up on additional firepower for a special event.

The judge said cooling-off periods were worthless. “There is no evidence that a ‘cooling off period,’ such as that provided by the 10-day waiting period, prevents impulsive acts of violence by individuals who already possess a firearm,” Ishii wrote.

There has not been a federal law requiring a cooling-off period since the Brady Act and its five-day wait period expired in 1998, according to Law.com. It had been passed in response to the shooting of President Reagan and Press Secretary James Brady in 1981. California has had a waiting-period law on the books in some form since 1923. 

–Ken Broder

To Learn More:

Judge Says California Gun Waiting Time Not for All Buyers (by Dan Levine, Reuters)

California Gun Delivery Law Voided (by James Ching, Law.com)

California Gun-Buy Restriction Blocked by Judge (by Bob Egelko, San Francisco Chronicle)

The Second Amendment's Defining Moment (by Frank Miniter, Forbes)

California Gun Laws Under Fire (by James Ching, The Recorder)

One Week after State Gun Control Setback in Federal Court, S.F. Wins One (by Ken Broder, AllGov California)

Jeff Silvester v. California Attorney General Kamala Harris (U.S. District Court for the Eastern District of California) (pdf)