SCOTUS Is Right to Not Overturn California's Gun Waiting Period
The Hill today reports that the US Supreme Court is refusing to hear a case challenging a California law prescribing a waiting period for gun purchases. In other words, the SCOTUS is allowing the California law to stand:
The Supreme Court on Tuesday refused to hear a challenge to a California law that requires there be a 10-day waiting period after all gun sales, even if the person is already a registered gun owner.
California’s "cooling off period" is the second longest in the country, according to court documents, and was enacted to give state authorities time to run a background check and give individuals who might want the firearm to harm themselves or others an opportunity to calm down.
Only eight other states and the District of Columbia have any kind of waiting period.
Two California residents, Jeff Silvester and Brandon Combs, who already own guns legally, challenged the application of law along with two nonprofits: The Calguns Foundation Inc. and The Second Amendment Foundation Inc.
They argued the waiting period is unconstitutional when it’s applied to "subsequent purchasers" — individuals who already own a firearm according to California’s AFS database or have a valid concealed-carry license and individuals who clear a background check in less than 10 days.
The 9th Circuit Court of Appeals disagreed. It said the 10-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved.
Now, I am not supporter of laws such as these. On the other hand, I also am opposed to the federal government stepping in to overturn state laws.
State autonomy in this matter is important from a decentralist and pro-federalism position. But it is also important from a legal position, because as Brion McClanahan has made clear in his work on the Constitution and the Bill of Rights, the Second Amendment does not apply to the states.
Many gun-ownership advocates wrongly claim that the Second Amendment applies to the states, but this is not the case. In other words, they accept the legal doctrine of "incorporation" invented in the late 19th century which applies the Bill of Rights to state governments.
McClanahan notes, however, that not only is "incorporation" a faulty legal doctrine, but it was never applied to the Second Amendment until very recently.
In this podcast [beginning around12:00] with McClanahon, he examines the historical realities surrounding the adoption of the Bill of Rights, and it is clear that the provisions of the Bill of Rights were intended as "restricting clauses on the general government" and that "these amendments were to apply only to the general government."
There is a reason, after all, that nerly all state constitutions contain some provisions guaranteeing a right to bear arms. This was seen as the domain of the state governments.
Federalism, properly understood, puts gun regulation in the hands of the state government. And while I am generally laissez faire on this issue, I agree with McClanahan that the federal government ought not to be the agency to which gun advocates appeal for protections of gun-ownership rights.
More: Decentralize the Gun Laws by Ryan McMaken