In 2015, the CPRC submitted Amicus Briefs to the 9th Circuit regarding California’s 10-day waiting period for those who have already passed a background check and already own guns. A copy of our brief is available here. Here is the Summary of Argument from our Amicus Curiae brief filed with the United States Supreme Court:
This Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008) established that the Second Amendment safeguards an individual right to keep and bear arms. The majority concluded that the outright ban on handguns at issue in that case failed constitutional muster under any level of possible scrutiny, but the decision left for future evaluation whether other gun regulations would be subject to strict scrutiny or intermediate scrutiny (or some other scrutiny more rigorous than the rationale basis test), and how those levels of scrutiny would be applied. Id., 626-27, 128 S.Ct. 2783.
After nearly ten years, however, the lower courts have struggled to apply the Heller decision. Most of the circuits have adopted a form of intermediate scrutiny for regulations that do not include a wholesale ban on a type of firearm. But even then, the standards applied by the lower courts vary widely. Some circuits, specifically the Second Circuit and the Ninth Circuit, have demonstrated ongoing hostility to the core concept of Heller that the right to bear arms is an important individual right and, while purporting to apply a level of intermediate scrutiny borrowed from other areas of constitutional jurisprudence – primarily free speech cases – have weakened their constitutional jurisprudence to approve restrictions on Second Amendment rights that would not be allowed for other rights.
As a research and education organization, CPRC is concerned by decisions, such as the Ninth Circuit’s decision here, that pay lip service to a 3 heightened level of scrutiny for gun regulations, but that end up wholly ignoring the evidentiary standards and academic research that inform the appropriate breadth of other constitutional rights.
Here, the Ninth Circuit reversed the evidentiary findings of the trial court and supplanted the evidence that the trial court received and weighed with its own non-empirical views of what it thought was reasonable. The trial court received and evaluated numerous studies that were offered at trial and found, as the trier of fact and with full support in the record, that none of the studies provided even a scintilla of evidence that a gun purchase waiting period beyond the time required to complete a background check enhanced safety or reduced gun violence for those who already owned a gun. This evidence-free approach is inconsistent with other circuits (excepting in part the Second Circuit) and with the constitutional evaluation of other constitutional rights.
Also, by replacing the weighing of evidence with its own view of what was reasonable, the Ninth Circuit effectively nullified the burden of proof that is supposed to apply to any form of heightened scrutiny, watering down the intermediate scrutiny test to little more than a rational basis review with a different name.
Similarly, an appropriate intermediate scrutiny analysis requires that a law not burden more of the right “than is reasonably necessary.” United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010). Accordingly, under an intermediate scrutiny review, a 4 court should consider reasonable, but less restrictive, alternatives. And in the context of First Amendment rights, the Ninth Circuit agrees. Menotti v. City of Seattle, 409 F.3d 1113, 1171 (9th Cir. 2005).
The Ninth Circuit here, and the Second Circuit in New York State Rifle and Pistol Ass’n Inc. v. Cuomo, 804 F.3d 242, 255 (2d Cir. 2015), however, have determined that this protection need not apply to Second Amendment challenges. Rather, laws that infringe upon rights guaranteed by the Second Amendment are upheld in the Ninth Circuit and the Second Circuit if they promote safety, even if narrower laws would provide the same level of safety.
This case presents an opportunity to ensure uniformity among the circuits and respect for the core principle that the right to keep and bear arms is an important individual right deserving of the same rigorous protections as other individual rights recognized by the United States Constitution.
Here is a beautiful example of the Ninth Circuit Court’s lack of logic.
Indeed, the Ninth Circuit only endeavored to look at one piece of the trial level evidence that the trial court had concluded was unhelpful to the government. That one piece was a pair of studies reviewed by the trial court that showed a slight correlation overall between waiting periods and a reduction in immediate post-purchase acts of violence or suicide (at least for the elderly). The trial court correctly noted that the study provided no information on whether the reduction in impulsive post-purchase acts of violence or suicide applied to those who already had a gun at hand.
The Ninth Circuit decided that its own rationalization was just as good as actual evidence, writing that “the studies [finding a reduction in postpurchase violence or suicide with a waiting period] related to all purchasers.” And since the class of purchasers who already owned a gun was part of the class of “all purchasers,” the Ninth Circuit reasoned, then it was only “common sense” that the reduction in violence and suicide found by the study applied to prior gun owners too. Id., 843 F.3d at 828.
The Ninth Circuit blatantly replaced evidence with its own “common sense.” And in the process, it fell into a form of a common logical error known as the Fallacy of Division.
The Fallacy of Division is committed when an argument is presented “[a]ssuming that what is true of a whole is therefore true of each of the parts of that whole.” T. Edward Damer, Attacking Faulty Reasoning: A Practical Guide to Fallacy-Free Arguments 151 (7th Edition 2012). Professor Damer provides as an example the argument that because a Boeing 747 can fly unaided across the ocean, and because a Boeing 747 has jet engines, each jet engine can fly unaided across the ocean.
Applied here, just because the whole of all gun owners may have the characteristic of benefitting from a waiting period does not mean that all subsets of gun owners likewise benefit. What the Ninth Circuit saw as common sense was actually a common logical fallacy. And in such mistakes we see the need to rely on evidence, and not rational speculation.