District Court Strikes Down California’s 10-Day Waiting Period Requirement for Individuals Who Already Own a Firearm and Pass a Background Check

Posted on Thursday, August 28th, 2014


In a disappointing decision, a district court judge ruled this week that California’s 10-day waiting period requirement for firearm purchases violates the Second Amendment, but only with respect to individuals who already own a gun and who also pass a background check before the 10-day period expires.  The case, Silvester v. Harris, was brought by several pro-gun organizations and individual California citizens who argued that the waiting period was unconstitutional as applied to them.  The court was careful to clarify that this was not a challenge to the 10-day waiting period in general, or to California’s background check requirement for all gun purchases.

In its decision, the court first acknowledged that “public safety and keeping firearms out of the hands of prohibited individuals are important interests.”  However, the court found that the state did not prove a “reasonable fit” between these interests and the 10-day waiting period with respect to individuals who already possess a firearm and pass a background check within 10 days.  The state provided three primary justifications for the waiting period requirement:  improving background checks, providing a cooling off period to reduce impulsive gun violence, and improving gun trafficking investigations.

As to background checks, the court dismissed as “unduly speculative” the state’s argument that a 10-day waiting period allows officials to address disqualifying information that may come to their attention before the period expires.  “Although additional disqualifying information may come to [the state’s attention],” the court wrote, “that can be said of any time-frame, but it 1 day or 60 days.”  With respect to cooling off periods, the court noted that “[t]here is no evidence that a ‘cooling off period,’…prevents impulsive acts of violence by individuals who already possess a firearm.”  In reaching this conclusion, the court discounted the social science evidence presented in support of waiting periods and the state’s argument that an individual may no longer have access to a gun just because it is listed in a database.  Finally, in addressing how the 10-day period may impact gun trafficking investigations, the court admitted that “it might be easier to intercept a weapon prior to delivery” with a 10-day waiting period, but was apparently satisfied that “this only occurs in about 15% of investigations.”

In his order, the judge gave the State of California 180 days to implement procedures that would comply with the decision, including releasing purchased firearms immediately to any individual who both passes a background check and is on record as already owning a firearm.  In reaching his decision, the judge appeared to place an unduly high burden on the state to prove the waiting period’s relationship to gun violence reduction—largely ignoring or discounting evidence that the 10-day waiting period prevents impulsive acts, enhances background checks, and improves investigations into illegal gun trafficking activity.  The state is likely to appeal the decision to the Federal Court of Appeals for the Ninth Circuit, where the Law Center plans to file an amicus brief in support of the waiting period requirement.

For more on the benefit of waiting period laws, see the Law Center’s Waiting Period Policy Summary.  For more on recent amicus briefs we’ve filed in the courts in support of common sense gun regulations, see our Second Amendment Amicus Briefs section.

District Court Strikes Down Washington, D.C. Ban on Public Carrying of Handguns

Posted on Monday, August 25th, 2014


For many years, the District of Columbia prohibited individuals from carrying handguns in public in order to protect District residents and visitors from gun violence. On July 26, 2014, however, a trial court judge interpreted the Second Amendment to allow individuals to carry guns outside of the home, and struck down the District’s policy. The judge’s ruling in the case, Palmer v. District of Columbia, allows residents and non-residents alike to carry handguns1. Fortunately,The ruling has been stayed for 90 days to allow the District to appeal the decision, or institute a licensing scheme that regulates the carrying of guns in public.

By far the most litigated Second Amendment issue since the Supreme Court’s controversial 2008 decision in Heller v. District of Columbia—which found that law-abiding, responsible individuals have a right to own an operable handgun for self-defense in the home—is whether the Second Amendment also protects a right to carry a firearm outside the home.2  As the Palmer court recognized, the Supreme Court has not yet ruled on this issue3, while a significant number of lower courts have concluded that the Second Amendment only protects the right to possess a gun for self-defense in the home. Nonetheless, since Heller, emboldened gun-lobby groups and individual plaintiffs have brought an onslaught of cases challenging laws that regulate a person’s ability to carry a gun outside of the home.

As of 2012, the only two jurisdictions prohibiting the practice of possessing guns outside the home were Washington, D.C. and Illinois. Illinois’ law was struck down in 2012 on Second Amendment grounds by the Seventh Circuit in Moore v. Madigan.4  The Moore court made clear, however, that laws regulating the possession of guns outside the home are permissible and the court suggested that regulations granting law enforcement discretion to issue concealed carry permits would be constitutional.


  1. 2014 U.S. Dist. LEXIS 101945. The Palmer court held that the District cannot prohibit non-residents from carrying firearms in the District solely because they are not District residents. The court reasoned that non-residents also have a Second Amendment right to carry guns outside the home for self-defense. However, in Peterson v. Martinez, 707 F.3d 1197, 1202 (10th Cir. 2013), the Tenth Circuit upheld Colorado’s law limiting concealed carry permits to Colorado residents. The court found the residency requirement to be constitutional and substantially related to the important government interest of protecting public safety. And in Dearth v. Holder, 641 F.3d 499, 500-501 (D.C. Cir. 2011), the District of Columbia Circuit Court also upheld a federal law requiring a gun purchaser to be a U.S. resident. []
  2. 554 U.S. 570, 626 (2008). []
  3. Without Supreme Court precedent on this issue, the Palmer decision relied heavily on a radical and extreme 2-1 decision by the Ninth Circuit in Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014) [link to write up about Peruta]. In Peruta, a divided panel of the Ninth Circuit Court of Appeals struck down a San Diego policy requiring an applicant for a permit to carry a concealed firearm in public to demonstrate “good cause” to carry a firearm above and beyond a general desire for self-defense. The State of California has sought to intervene in the case and requested en banc review from a full Ninth Circuit panel of judges, which may result in the overturning of the original decision. Additionally, the Palmer court based its decision on Moore v. Madigan 708 F.3d 901, 903 (7th Cir. Ill. 2013). []
  4. 708 F.3d 901, 903 (7th Cir. Ill. 2013). []

Teixeira v. County of Alameda: Amicus Brief in Support of Ordinance Keeping Gun Dealers Away from Schools and Sensitive Areas

Posted on Monday, August 18th, 2014


Case information: Teixeira, et al. v. County of Alameda, et al., No. 13-17132 (9th Cir., amicus brief filed August 15, 2014)

At Issue: This case involves a constitutional challenge to an Alameda County, California ordinance which requires—among other things—firearms dealers be located at least 500 feet away from school zones, other gun dealers, and residential areas.  Plaintiffs, three individual California residents along with various pro-firearm organizations, argue that the ordinance violates the Second Amendment by making it overly difficult to sell guns in Alameda County, despite the fact that at least twenty dealers already operate in the area.  The district court upheld the ordinance as a constitutional regulation of the commercial sale of firearms, and plaintiffs are now appealing that decision in the Ninth Circuit.

The Law Center’s Brief: Our Ninth Circuit brief, joined by Youth ALIVE!, argues that that the Alameda County ordinance does not violate the Second Amendment as it is part of a historic tradition of regulating the commercial sale of firearms, which the U.S. Supreme Court has expressly recognized as “presumptively lawful.”  Moreover, the ordinance places no burden on the Second Amendment right to possess a handgun in the home for self-defense as the ordinance in no way prohibits firearms dealers or the purchase of firearms.  Finally, the brief argues that even under intermediate scrutiny—the level of judicial review overwhelming applied to Second Amendment claims—the ordinance is valid because it is reasonably related to Alameda County’s important interest of protecting public safety.

The Commonsense Gun Laws Partnership: A Collaboration Dedicated to Preventing Gun Violence

Posted on Friday, August 15th, 2014


Earlier this year, we announced an exciting new partnership between the Law Center and Americans for Responsible Solutions (ARS), the organization founded by former Congresswoman Gabrielle Giffords and her husband, retired combat veteran and NASA astronaut Mark Kelly. Together, we are committed to bringing some sanity to our nation’s gun laws.

With our more than 20 years of research and knowledge on the nation’s gun laws, and the powerful grassroots network cultivated by Americans for Responsible Solutions, together we are producing tools that will empower lawmakers and community members to stop gun violence before it happens.

The Law Center and Americans for Responsible Solutions will assist legislators by creating a series of toolkits that will aid in developing solutions to protect communities from gun violence while ensuring that the legislation complies with the Second Amendment. The toolkits on each topic will provide:

  • Evidence of the particular gap in current laws that perpetuate gun violence;
  • Effective, tested solutions to close the loophole;
  • Policy rationale for action;
  • Legal basis for new laws; and
  • Most importantly – straight-forward features of the policies that will guide legislative drafting.


Victory in the Courts: Maryland’s Ban on Assault Weapons and Large Capacity Ammunition Magazines Upheld

Posted on Wednesday, August 13th, 2014


In a victory for gun safety, a U.S. District Court on Tuesday, August 12 upheld all aspects of Maryland’s Firearm Safety Act of 2013.  The law, enacted in the wake of the devastating shooting at Sandy Hook Elementary School, prohibits certain assault weapons and large capacity ammunition magazines (“LCAMs”).  Plaintiffs in the case, individual gun owners as well as a number of pro-gun organizations, argued unsuccessfully that the Act violates the Second Amendment.  With its decision, the District Court in Kolbe v. O’Malley joins an ever-growing number of courts that have unanimously upheld laws around the country prohibiting dangerous, military-style assault weapons and LCAMs.

In reviewing the law, the court first asked whether assault weapons and LCAMs (magazines capable of holding more than 10 rounds) fall within the scope of the Second Amendment, which does not protect “dangerous and unusual weapons,” but only those “typically possessed by law-abiding citizens for lawful purposes.”  The court noted that assault weapons “represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.”  Moreover, assault weapons “are used disproportionately” in both mass shootings and attacks on law enforcement officers and “cause more injuries and more fatalities when they are used.”  Given this evidence, the court expressed its “serious[] doubts that the banned assault long guns are commonly possessed for lawful purposes” and was “inclined to find” that such weapons fall outside the Second Amendment as dangerous and unusual.

A final ruling on that question was not issued, however, because the court found the entire Act to easily survive constitutional review.  In holding that the Act only minimally burdens the Second Amendment, the court pointed out that the law “does not seriously impact a person’s ability to defend himself in the home…[i]n fact, the plaintiffs can point to no instance where assault weapons or LCAMs were used or useful in an instance of self-defense in Maryland.”  The court also noted persuasive evidence showing that “assault weapons have several military-style features which make them especially dangerous to law enforcement and civilians,” and that LCAMs are used disproportionately in mass shootings and in the killing of law enforcement officers.  Given these facts, the court concluded that the Act “substantially serves the government’s interest in protecting public safety, and it does so without significantly burdening” the Second Amendment right of “law-abiding, responsible citizens to use arms in defense of hearth and home.”

This case is part of an overall trend in courts across the nation, where the vast majority of challenges to common sense gun regulations are rejected.  In over 900 decisions tracked by the Law Center, approximately 96% of Second Amendment challenges were rejected—further proof that sensible firearm regulations are totally compatible with the Second Amendment.

For more, visit our overview of Maryland’s gun laws or read about limits on assault weapons and large capacity ammunition magazines in states across the country.

Eleventh Circuit Upholds Florida Law Preventing Doctors from Asking About Gun Ownership

Posted on Thursday, July 31st, 2014


On July 25, 2014, in a surprising and disappointing decision, a three-judge panel of the 11th Circuit upheld a Florida state law that limits doctors’ ability to speak to their patients about gun safety.1 Dubbed the “gag rule,” this law prevents doctors from even asking patients about gun ownership as part of routine care to prevent the potentially devastating effects of gun violence. The decision reverses a U.S. District Court’s 2012 decision, which invalidated the law on the grounds that it violates physicians’ First Amendment rights and “chills practitioners’ speech in a way that impairs the provision of medical care and may ultimately harm the patient.”2

Gun violence is a public health epidemic in the U.S. and of great concern to health care providers. Over 7,000 children are hospitalized or killed due to gun violence every year.3 Extensive research has shown that the presence of a gun in a home makes its residents less safe. A national study of those who died from accidental shootings showed that victims were more than three times more likely to have had a gun in their home as those in the control group.4 The danger of unintentional shootings is especially grave for homes with childrenEighty-nine percent of unintentional shooting deaths of children occur in the home—and most of these deaths occur when children are handling a loaded gun in their parents’ absence.5

Doctors can play an important role in reducing childhood death and injury from guns. According to one recent study, 64% of individuals who received verbal firearm storage safety counseling from their doctors improved their gun safety practices.6  Numerous medical organizations, including the American Medical Association, the American Academy of Family Physicians, the American College of Physicians, and the American Academy of Pediatrics (AAP), believe that gun violence can be lessened by providing patients and parents with information about gun safety. The AAP recommends that conversations about guns and gun safety start during a prenatal visit and be repeated every year as part of anticipatory guidance. Indeed, doctors routinely talk to their patients about a range of public health hazards in the home, including backyard swimming pools, tobacco, and household cleaners and toxins.


  1.  Wollschlaeger v. Florida, No. 12-14009 (11th Cir. Jul. 25, 2014). []
  2. Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1267 (S.D. Fla., 2012). []
  3. Dennis Thompson, 20 U.S. Kids Hospitalized Each Day for Gun InjuriesWebMD (Jan. 27, 2014), available at http://www.webmd.com/parenting/news/20140127/twenty-us-kids-hospitalized-each-day-for-gun-injuries-study. []
  4. Douglas J. Wiebe, Firearms in U.S. Homes as a Risk Factor for Unintentional Gunshot Fatality, 35 Accident Analysis & Prevention 711, 713-14 (2003). []
  5. Guohua Li et al., Factors Associated with the Intent of Firearm-Related Injuries in Pediatric Trauma Patients, 150 Archives Of Pediatric & Adolescent Med. 1160, 1162 (1996). []
  6. Teresa L. Albright & Sandra K. Burge, Improving Firearm Storage Habits: Impact of Brief Office Counseling by Family Physicians, 16 J. of the Am. Bd. of Family Practice 40, 40 (2003). []

Domestic Violence & Firearms in Louisiana

Posted on Wednesday, July 30th, 2014

See our Domestic Violence & Firearms policy summary for a comprehensive discussion of this issue.

Louisiana enacted a law in 2014 that prohibits gun possession by anyone convicted of the crime of “domestic abuse battery” within the last ten years from the completion of the sentence, probation, or parole. The law also prohibits gun possession by anyone subject to a domestic violence protective order.1

Louisiana law does not:

  • Require the surrender of firearms or ammunition by domestic abusers who have become prohibited from possessing firearms or ammunition under state or federal law; or
  • Explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.
  1. 2014 La. H.B. 753. []

Domestic Violence & Firearms in Washington

Posted on Wednesday, July 30th, 2014

Washington has no law authorizing or requiring the removal of firearms or ammunition at the scene of a domestic violence incident.

Firearm Prohibitions for Domestic Violence Misdemeanants in Washington

Washington prohibits possession of a firearm by anyone who has been convicted or found not guilty by reason of insanity of any of the following crimes when committed by one family or household member against another on or after July 1, 1993:

  • Assault in the fourth degree;
  • Coercion;
  • Stalking;
  • Reckless endangerment;
  • Criminal trespass in the first degree; or
  • Violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence.1

Washington defines “family or household members” as:

  • Spouses, former spouses;
  • Persons who have a child in common regardless of whether they have been married or have lived together at any time;
  • Adult persons related by blood or marriage;
  • Adult persons who are presently residing together or who have resided together in the past;
  • Persons age 16 or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship;
  • Persons age 16 or older with whom a person age 16 or older has or has had a dating relationship; and
  • Persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.2

Firearm Prohibitions for Persons Subject to Domestic Violence Restraining/Protective Orders and Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued

Washington enacted a law in 2014 that mirrors the federal law by prohibiting gun possession by anyone subject to a final domestic violence protective or restraining order.3 The law also requires the court to order the abuser to surrender any firearms in his or her possession and file a proof of surrender with the court.  The law also requires law enforcement agencies to establish a procedure regarding surrendered firearms, and requires the administrative office of the courts to establish a form for the proof of surrender.4

An older provision of Washington law provides that, if a protective or restraining order states that the possession of a firearm or other dangerous weapon by any party presents a serious and imminent threat to public health or safety or the health or safety of any individual, the court may:

  • Require the party to surrender any firearm or other dangerous weapon;
  • Require the party to surrender any concealed pistol license issued by the State of Washington;
  • Prohibit the party from obtaining or possessing a firearm or other dangerous weapon;
  • Prohibit the party from obtaining or possessing a concealed pistol license.5

The court may also make such an order if it finds by a preponderance of the evidence that the party used, displayed, or threatened to use a firearm or other dangerous weapon in a felony or committed any offense that renders him or her ineligible to possess a firearm.6 If the court makes this finding upon a showing by clear and convincing evidence, then it is required to make such an order.7

The court may order the temporary surrender of a firearm or other dangerous weapon without notice to the other party if it finds that irreparable injury could result if an order is not issued until the time for a response has elapsed.8 These requirements may be for a period of time less than the duration of the order.9 The court may require the party to surrender any firearm or dangerous weapon in his or her immediate possession or control or subject to his or her immediate possession or control to local law enforcement, his or her counsel, or to any person designated by the court.10 These provisions apply to:11

Domestic violence protective orders are available to family and household members as defined above, plus domestic partners and former domestic partners.12

For general information on the background check process and categories of prohibited purchasers/possessors, see the Washington Background Checks and Washington Prohibited Purchasers Generally sections.

See our Domestic Violence and Firearms policy summary for a comprehensive discussion of this issue.

  1. Wash. Rev. Code Ann. § 9.41.040(2)(a)(i). []
  2. See Wash. Rev. Code Ann. §§ 9.41.010(17) and 10.99.020(3). []
  3. 2014 WA H.B. 1840. []
  4. Id. []
  5. Wash. Rev. Code Ann. § 9.41.800(1), (4). []
  6. Wash. Rev. Code Ann. § 9.41.800(2). []
  7. Wash. Rev. Code Ann. § 9.41.800(1). []
  8. Wash. Rev. Code Ann. § 9.41.800(4). []
  9. Wash. Rev. Code Ann. § 9.41.800(6). []
  10. Wash. Rev. Code Ann. § 9.41.800(7). []
  11. Wash. Rev. Code Ann. § 9.41.800(1). []
  12. Wash. Rev. Code Ann. §§ 26.50.010(1), (2), 26.50.060. []

Mental Health Reporting in Wisconsin

Posted on Tuesday, July 29th, 2014

See our Mental Health Reporting policy summary for a comprehensive discussion of this issue.

Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers.

The Wisconsin Department of Justice (“DOJ”) is required to promulgate rules to convey information in a timely manner to the NICS database regarding individuals ordered not to possess a firearm under:

  • Wis. Stat. § 51.20(13)(cv)(1) (mental health commitments where the individual is found to be a danger to self or public safety);
  • § 51.45(13)(i)(1) (treatment for and commitment of an individual incapacitated by alcohol or suffering from alcoholism);
  • § 54.10(3)(f)(1) (individuals who have a guardian appointed for them); or
  • § 55.12(10)(a) (order of protective services or protective placement).2

DOJ is also required to promulgate rules to convey information to the NICS database for cancellations of court orders for these mental health-related issues.3

Court clerks are required to notify DOJ when a court determines an individual is prohibited by federal law from possessing firearms because of any of the circumstances listed above, or subsequently restores the person’s eligibility to possess firearms.4 The clerk and DOJ may only disclose the information necessary to permit an accurate firearms restrictions record search.5 A 2014 law clarifies that this information may also be used in determining whether to issue or deny a concealed carry permit and in certain law enforcement investigations.

For general information on the background check process and categories of prohibited purchasers or possessors, see the Wisconsin Background Checks section and the section entitled Prohibited Purchasers Generally.

  1. 18 U.S.C. § 922(d)(4). []
  2. Wis. Stat. § 175.35(2g)(d)(1). Wisconsin law allows individuals in any of these categories to petition a court for an order restoring the person’s eligibility to possess firearms. []
  3. Wis. Stat. § 175.35(2g)(d)(2). See Wis. Stat. §§ 51.20(13)(cv)(2), 51.45(13)(i)(2)(c), 54.10(3)(f)(2)(c) and 55.12(10)(b)(3). []
  4. Wis. Stat. §§ 51.20(13)(cv)(4), 51.45(13)(i)(4), 54.10(3)(f)(4), 55.12(10)(d). []
  5. Id. See also Wis. Stat. § 51.30(4)(b)(28). []

Mental Health Reporting in Hawaii

Posted on Sunday, July 27th, 2014

Federal law prohibits any person from selling or otherwise transferring a firearm or ammunition to any person who has been “adjudicated as a mental defective” or “committed to any mental institution.”1 No federal law requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS) database, which the FBI uses to perform background checks prior to firearm transfers.

In 2014, Hawaii enacted a law requiring courts to report people involuntarily committed, as inpatients or outpatients, to the Hawaii criminal justice center, which must in turn transmit this information to NICS.  This information must also be available to law enforcement officers for the purposes of Hawaii’s firearms permitting and registration laws.2 The normal rules of confidentiality do not apply. 3  The 2014 law also provided a procedure for people prohibited from possessing firearms under federal law due to mental illness to regain their gun eligibility. 4

Health care providers and public health authorities in Hawaii must disclose mental health information of persons seeking to purchase or own a firearm to county chiefs of police in response to requests for such information.5 This information is to be used solely for evaluating a person’s fitness to acquire or own a firearm.6 Hawaii requires applicants for permits to purchase or acquire firearms to authorize disclosure of mental health information. Applicants must sign a waiver when completing the application that allows the Chief of Police of the county issuing a permit access to any records that have a bearing on the mental health of the applicant.7

The Department of Health is required to keep a medical record of each person committed to the custody of the department or hospitalized because the person is dangerous and there is no less restrictive alternative available, because he or she lacks fitness to proceed in a criminal case, or because he or she has been acquitted on grounds of mental disorder or defect, is dangerous and is not a proper subject for conditional release.8

For general information on the background check process and categories of prohibited purchasers or possessors, see the Hawaii Background Checks and Hawaii Prohibited Purchasers Generally sections.

See our Mental Health Reporting policy summary for a comprehensive discussion of this issue.

  1. 18 U.S.C. § 922(d)(4). []
  2. Haw. Rev. Stat. § 334-60.5. []
  3. Haw. Rev. Stat. § 334-5(7). []
  4. 2013 HI H.B. 2246. []
  5. Haw. Rev. Stat. Ann. § 134-3.5. []
  6. Id. []
  7. Haw. Rev. Stat. Ann. §§ 134-2(c), 134-3.5(2). []
  8. Haw. Rev. Stat. Ann. §§ 334-2.5(c)(4), 704-406(1), 704-411(1). []