S.C. Denies to Hear Case on Waiting-Periods for Guns: Justice Thomas Dissents

Mitchell Rolling

The Supreme Court has decided not to take up a case concerning a California law requiring a 10-day waiting period for gun purchases. 

Justice Clarence Thomas offered his dissent, putting both the Ninth Circuit and the Supreme Court on blast and accusing them of making the Second Amendment “a disfavored right in this Court.” He also said that the ruling from the Ninth Circuit “is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”

Thomas claims that the Court of Appeals ruled on this case “without requiring California to submit relevant evidence, without addressing petitioners’ arguments to the contrary, and without acknowledging the District Court’s factual findings.”

In his dissent, Thomas notes what the California law does and why it was implemented, detailing that it is designed to give officials time to run background checks and to provide a “cooling off period” for anyone who might be buying a gun for immediate criminal action.

The lawsuit brought by Jeff Silvester and Brandon Combs – two legal gun-owners in California – specifically takes aim at requiring “subsequent purchasers” who already own firearms to go through this waiting period.

A District Court originally ruled in favor of Silvester in Silvester v. Harris, saying that the California law does not “promote an important governmental interest.” The District Court found the correlation between waiting periods and gun casualties to be “inconclusive,” showing no evidence of any effects. 

In defense of the law, California offered no evidence regarding subsequent purchasers and why it was necessary to require them to wait. This is an important omission and something the District Court took note of, stating that waiting periods “will not deter an individual from committing impulsive acts of violence with a separate firearm that is already in his or her possession.”

California also made no attempt to defend the 10-day waiting period, which is the second longest in the country. The state only claimed that waiting periods for subsequent purchasers can be helpful in certain circumstances, but the court dismissed this as overly speculative.

The Ninth Circuit overturned this ruling, claiming that the assumption subsequent purchasers would just use the gun they already own in a crime is “not warranted.” They offered no evidence to support this, either.

The method used for the decision of the Ninth Circuit is called “intermediate-scrutiny” and requires the government to “demonstrate that the harms it recites are real.” This method also requires “a reasonable fit” between the means and the ends of the law. This is quite different than a “rational-basis review,” as Justice Thomas explains, which allows a court to rule based on “rational speculation unsupported by evidence or empirical data.” Thomas notes that rational-basis review is not an option for constitutional rights.

Thomas argued in his dissent that the Ninth Circuit upheld California’s waiting period using intermediate scrutiny but without a basis for support. He also stated that they failed in their appellate review by barely taking into account the fact-findings of the District Court — which is required in cases such as this.

Thomas went on to accuse the nation’s highest court of treating the Second Amendment as a second-class right, continuing to claim that “If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.”

He concluded his dissent by stating, “Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”” By not taking this case, Thomas claims the Supreme Court is hearing Second Amendment cases based on a special criteria that devalues it in comparison to other constitutional rights.