Ninth Circuit Overturns ruling on Second Amendment Waiting Periods

By Dean WeingartenNinth Circuit Court of Appeals

Dean Weingarten
Dean Weingarten

Arizona – -( 14 December, 2016, a three judge panel of the Ninth Circuit Court of Appeals reversed the District Court ruling in Silvester v. Harris.  In the original decision, the District Court ruled that requiring a gun owner who had already passed a background check, and who either already owned a registered gun or had a concealed carry permit, to wait an additional period to receive another firearm, was an infringement on the Second Amendment right to keep and bear arms. The Ninth Circuit held that a 10 day waiting period was a “reasonable safety precaution”.  From the decision at

The panel reversed the district court’s bench trial judgment and remanded for entry of judgment in favor of the state of California in an action challenging a California law establishing a 10-day waiting period for all lawful purchases of guns. The panel first stated that this case was a challenge to the application of the full 10-day waiting period to those purchasers who have previously purchased a firearm or have a permit to carry a concealed weapon, and who clear a background check in less than ten days. The panel held that the ten-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved. The panel determined that it need not decide whether the regulation was sufficiently longstanding to be presumed lawful. Applying intermediate scrutiny analysis, the panel held that the law does not violate plaintiff’s Second Amendment rights because the ten-day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase.

The decision claims this reasoning is under the “intermediate scrutiny” standard. But it is clear that “intermediate scrutiny” has simply become another name for “rational basis” which is virtually no standard at all.  Here is another snippet. From

But 9th Circuit Judge Mary Schroeder said the waiting period makes sense, for example, for someone who already owns a hunting rifle but may want to buy a larger-capacity weapon that will do more damage when fired into a crowd.

“A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home,” she said.

Using the rational of the Court, it is hard to see that there is any limit on the waiting period that could be imposed.  If a 10 day limit is not a serious burden, why not a 20 day, or a 40 day, or a year?  The court did not ask for or receive any evidence that the presumed “rational” argument had any substance, had ever happened, or if any studies had ever been done to find out.

The Crime Prevention Research Center filed an amicus breif in the orginal case. From the brief:

Despite assertions that the benefits from waiting periods and background checks are obvious, the complete lack of empirical studies to support those claims is stark. No evidence is offered that either of these laws reduce violent crime, nor that they reduce overall suicide rates. Even more striking, the discussions that Appellant and amici use are not relevant to the case before the court.

The Ninth Circuit seems determined to uphold as many infringements on the Second Amendment as it can, until stopped by the Supreme Court. Until a new justice is appointed to replace Justice Scalia, it is unlikely that the Supreme Court will accept an appeal, or reverse the Ninth Circuit’s decisions on the Second Amendment.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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Kevin Donohue

Seriously anyone is surprised by any decision out of the ninth!!! Even when overturned and admonished by the US SC they continue with their like opinions.
Hopefully a new court appointed by Trump (as many as 3 Justices) will beat these idiots into submission to at least make legal arguments.


Another thing that could’should be done is to establish one more Court of Appeals…. fill it with good judges, then simply disband the Ninth. Presto changeo, these perverted opponents of jusstice are out of power.

Wild Bill

@Tion, That is one hell of a good idea. Wish I would have thought of it.


The Chief Justice Thomas that concurred with the decision was the same justice that demanded an en banc (do over) of the Peruta case which over turned the 9th court’s three judge panel.

Thomas is an anti gun judicial activists.The two other justices were appointed by Carter and Obama. I’m all in favor of disbanding the Ninth Court Circuit.


at one time there was talk of establishing another court to ease the work load of the ninth…


President Bush the younger wanted to establish that other circuit court, but was prevented by a Democrat controlled congress who were totally happy with the 9th Circiut Court of Appeals and it’s liberal activism. That the Rocky Mountain states have freedom or autonomy from the Soviet State of California would be highly upsetting to liberals everywhere.

Richard Lewis

You liberals are a bigger threat to our society then any law abiding gun owner. Anyone who comes to my home with intentions of taking my guns for on that day it shall be your last. GOD BLESS AMERICA AND GOD BLESS OUR VETERANS.

Jim Macklin

More proof of two facts…
The Ninth Circuit is ignorant or stupid. They are in te past the most reversed Circuit court and hopefully with the Trump appointed SCOUS, that will remain true.

2. Proof that common sense gun control is really stupid.


Common sense gun control is using two hands.


ignorant, stupid.. possible but not likely. Most likely is treasonous, in refusing to uphold the Constitution as the Supreme Law of the Land, something they all swore to when they acceded to their positions of authority in the public trust.

There should be a way to legally remove such traitors…..

jeff smith

thof the phrase “cooling off period” implies and presupposes that all purchasers are in and agitated or heated state. at the time of purchase. Why not have a cooling off period for automobile purchases which per capita produce a greater homicide rate than firearms.


only one news site reported Obama submitted the UN small arms treaty to the Senate for consideration..we need an update on this from the so called gun lobbys

Dave Eckart

There is no update needed at this time. The Senate decided not to vote on it. The real issue that needs to be discussed, is whether another congress can pass it, since it was signed by the president and secretary of state. Is there a point where it can no longer be valid for consideration by a Congress? To that point, I have not read anything pro or con. That is the issue of most concern.


..they say it must be killed right now, we dont know what the Senate will look like in two years, if we get an anti gun Senate we could be stuck with forced registration that carrys a hefty fee..and if they dont think we need a gun, they wont register it to us..and, the last i knew the UN has a copy of every concealed weapons permit in the US..


Per Ted Cruz’s victory in Medellín v. Texas, an international commitment is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is “self-executing.” Pray the liberals never get a super majority in Congress.


If you really read and study the constitution and the pertinent federalist papers you will find that the states have no right to regulate the second amendment in any way. It is a power vested to the federal government not to the states.

freewill are correct, the Constitution is law of the land, our founders intended us to be armed in case the US Government stepped outside the boundaries of the Constitution and .the word people is mentioned in the 1st, 2nd and 4th Amendment..

Wild Bill

, The “Law” is what the judge says that it is. John Chipman Grey


@Wildbill…we are the last line of defense to protect our Rights..the Judge was intended to pass Judgement if the supreme body assembled called “the Jury” finds a person guilty of a just law, if its an unjust law, the Jury has a right to strike it down!!! try searching the fully informed jury act..


That may be the case but until the federal government reasserts its control over the 2A these social, liberal states and courts will continue to pass state laws. Obama’s administration took the same path in letting states run with whatever they wanted. None of this should stick long term, but YMMV.


FedGov have no authrity to “control the Second Ammendment”. They ONLY have the authority, which I am unaware of them ever using, to DEFEND that Second, and the rights described therein, from ANY infringement from any source. But instead of doing their assigned duty, they continue to ADD TO the already too long list of infringements.

freewill…join the fight!

Gregory Romeu

The Constitution is not the law of the land it is a contract between we the people and the federal government. A CONTRACT, NOT TO EVER BE BROKEN!

It outlines our RIGHTS. These are not PRIVLEDGES. They can not be removed, twisted or otherwise altered in any way!


the Federal government has broke the law!! is the law of the land..theres only three law authorizing the Federal government to enforce..Treason, Counterfeiting and Piracy on the Seas..but right now, they are illegally enforcing over 300k..they have no say in the second amendment unless a state infringes!!


John you are correct as pertains to the states. But you are absolutely WRONG as pertains to FedGov. That Second states “shall not be infringed”, and thereby puts the BURDEN of assuring our right to arms is NOT INFRINGED by any government entity at any level. Instead of seeking to further infringe our RIGHT to arms, FedGov ought to be, in fast MUST be, vigilant and proactive, taking action any time a stupid state like California comes up with any such infrigement as a ten day witing period… or, for that matter, a state issued Mother May I Card, background… Read more »


What I was saying is the federal government is to enforce all parts especially shall not be infringed. It happened to me what libs are doing to the constitution. Thanks for the pick up.

Gregory Romeu

Perhaps it’s time that, We, THE PEOPLE pull our heads out of our pompous asses and read our State Constitution and find the mechanism to REMOVE ELECTED AND APPOINT OFFICIALS FROM OFFICE. INCLUDING JUDGES THAT VIOLATE THEIR OATHS OF OFFICE!

Now I expect to see Dean writing a story about how this dumbass judge gets remove from the bench by THE PEOPLE of California through Grand Jury Indictment sometime within the next 6 to 8 months!


the problem is they stacked the deck with their minions..if the average Joe had enuf support to force a confrontation..we only have Comey as an example with Hillarys emails