Justices Reject Challenge to Waiting Period for Gun Purchases

‘The right to keep and bear arms is apparently this Court’s constitutional orphan’

The Florida shooting has sparked protests, such as this one near the White House over the weekend, calling for gun control.  (Bill Clark/CQ Roll Call)

The Supreme Court on Tuesday let stand a California law that requires a 10-day waiting period for purchasing firearms — the second-longest waiting period in the country.


The justices declined to review a lower court ruling from December 2016 in the Second Amendment case. The move comes as lawmakers and students have called for stricter gun restrictions after the mass shooting last week in Parkland, Fla., in which a gunman killed 17 people at a high school and wounded more than a dozen. 

Justice Clarence Thomas wrote a 14-page dissent to say that the Second Amendment right to bear arms “is a disfavored right in this Court.” No other justices joined the dissent.

The Supreme Court hasn’t decided a major case over how much lawmakers can limit the Second Amendment’s right to own firearms since 2010 — leaving states, localities and Congress free to act.

For example, the Supreme Court has never decided a case about a ban on assault weapons or limits to the number of rounds of ammunition a magazine can hold. Thomas said the court hasn’t clarified the standard for assessing Second Amendment claims in 10 years.

“The right to keep and bear arms is apparently this Court’s constitutional orphan,” Thomas wrote. “And the lower courts seem to have gotten the message.”

The U.S. Court of Appeals for the 9th Circuit treated the California gun law with a lesser level of scrutiny and “would not have done this for any other constitutional right,” Thomas wrote.

The 9th Circuit, for example, invalidated an Arizona law partly because it delayed women seeking an abortion, and struck down a county’s five-day waiting period for nude-dancing licenses because it prevented First Amendment rights to be expressed during that time, Thomas wrote.

And he added that there have been enough Supreme Court justices willing to hear cases on waiting periods for abortions, the publication of racist speech or delay of a traffic stop.

“The court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas wrote.

President Donald Trump, through White House press secretary Sarah Huckabee Sanders, expressed support Monday for a bipartisan bill by Sens. John Cornyn, R-Texas, and Christopher S. Murphy, D-Conn., to improve compliance with the criminal background check system.

The California law aimed to give authorities time to conduct a background check and create a “cooling off” period that gives people who could harm others a chance to reconsider. California is one of eight states and the District of Columbia to have a waiting period for gun purchases. 

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