Silvester v. Becerra, 2018 U.S. LEXIS 897 (U.S. Feb. 20, 2018)

On February 20, 2018, the United States Supreme Court denied the petition for a writ of certiorari in Silvester v. Becerra.  Justice Clarence Thomas dissented from the denial of certiorari.

The case was a challenge to California Penal Code sections 26815 and 27540, which established a 10-day waiting period for all lawful gun purchases. Specifically, the case challenged the application of the full 10-day waiting period to those purchasers (referred to as “subsequent purchasers”) who had previously purchased a firearm or had a permit to carry a concealed weapon, and who cleared the required California Bureau of Firearms background check in less than ten days. The subsequent purchaser plaintiffs sought the right to receive the firearm as soon as they passed the background check, rather than wait the additional time until the 10-day period expired.

The district court agreed with the plaintiffs that the additional waiting period violated their Second Amendment rights. On appeal[1], the Ninth Circuit Court of Appeals reversed the district court’s judgment.  The Ninth Circuit agreed with the State of California’s contention that a 10-day “cooling off” period was a justifiable safety precaution to deter violence for all purchasers of firearms, regardless of whether they had previously lawfully possessed a firearm or a permit to carry one, and that the full waiting period need not be suspended once a purchaser had been approved.

Applying intermediate scrutiny[2] analysis, the Ninth Circuit held that the law did not violate the subsequent purchasers’ Second Amendment rights, because the additional waiting period was a small burden to subsequent purchasers, and constituted a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase.  The Ninth Circuit reasoned that a subsequent purchaser might want a larger capacity weapon than [s]he currently possessed to do more damage when fired into a crowd, yet might be deterred from such violence, like a first time buyer, as time passed in the waiting period.

In his dissent, Justice Thomas said that the Supreme Court should have granted review of the Ninth Circuit’s decision. Thomas concluded that the Ninth Circuit did not actually apply intermediate scrutiny to the waiting period law, but instead improperly applied the more lenient rational-basis[3] review.  Justice Thomas observed that the Courts of Appeals generally evaluate Second Amendment claims under intermediate scrutiny, which “requires the government to ‘demonstrate that the harms it recites are real’ beyond ‘mere speculation or conjecture,’ Edenfield v. Fane, 507 U. S. 761, 770-771, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993).”

Justice Thomas believed the Ninth Circuit did not go beyond speculation in assessing the California waiting-period law. Thomas did not see evidence in the form of studies or empirical data in the Ninth Circuit’s reasoning. Thomas also said that the Ninth Circuit did not meaningfully assess whether the 10-day waiting period was reasonably tailored to California’s goal of deterring violence. Accordingly, Thomas concluded that the Ninth Circuit failed to properly apply the intermediate scrutiny standard required for the 10-day waiting period law.  Thomas broadened his discussion to describe his view that the current case was “emblematic of a larger trend” in which lower courts failed to protect the Second Amendment to the same extent as they protected other Constitutional rights.


With the denial of review of the Ninth Circuit’s ruling, California’s 10-day waiting period for receipt of purchased weapons, embodied in California Penal Code sections 26815 and 27540, remains good law. Accordingly, firearm purveyors are required to comply with this provision, whether the purchaser to whom they are selling is purchasing his or her first or subsequent firearm.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

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[1] Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016).

[2] To pass intermediate scrutiny, the challenged law must;

(1) Further an important government interest.

(2) Must do so by means that are substantially related

to that interest.

[3] In order for a law to pass rational basis review:

(1) The law must have a legitimate state interest;

(2) There must be a rational connection between

the law’s means and goals.