Colorado lawmakers are considering legislation that would impose a three-day waiting period on the purchase of every firearm in the state as part of a broader crackdown on the right to keep and bear arms; a push that could also include a sweeping ban on so-called assault weapons that Democrats have been drafting behind closed doors for several months, but has not been officially introduced yet.
The bills that have been dropped into the legislative hopper are bad enough, and Second Amendment attorney and scholar Dave Kopel of the Independence Institute has spelled out in great detail the problems with HB 1219, starting with the fact that waiting periods themselves are on “shaky constitutional ground.” As Kopel pointed out in his written testimony, “forced delays in firearms acquisition by adults did not exist when the Second Amendment was ratified in 1791, nor in 1868, when the Fourteenth Amendment was ratified and made the Second Amendment enforceable against state governments.” In Kopel’s view, that alone renders waiting periods unconstitutional under the Heller, McDonald, and Bruen decisions.
The first waiting period law was enacted in California in the 1923, a one-day wait for handgun sales.10 A minority of other states enacted handgun waiting period laws in the 1920s and 1930s.
Under Bruen, analogies from the 1920s are far too late to offer any insight on the original public meaning of the Second Amendment.
Because there is not an iota of pre-1900 historical precedent for waiting period laws, the next question is whether there might be other historical laws to which analogies might be drawn. Were there other types of laws that in some way delayed an adult from being able to keep a firearm in his or her home?
Yes there were. These were laws that required some people to receive a license in order to keep a gun at home. These laws did not necessarily require waiting. A fortunate applicant might apply at the county courthouse in the morning, and walk out with a license before lunch. However, it seems plausible that, as with lots of other government licensing, the licensing authority might not issue a license immediately.
But having to wait for a license generally was a byproduct of the licensing law, not an actual provision of the statute. And as Kopel lays out, most of the pre-1900 licensing laws were “systematically racist” in nature and directed against some would-be gun owners in particular.
The first gun control law in America was enacted by the Colony of Virginia in 1619. Blacks and Indians who were “not house-keepers, nor listed in the militia” were generally prohibited from bearing arms. However, these blacks and Indians living on frontier plantations could possess arms if they were granted a license “to keep and use guns, powder, and shot . . . .”
The first session of Mississippi’s territorial legislature declared in 1799 that “No negro or mulatto shall keep or carry any gun, powder, shot, club or other weapon whatsoever, offensive or defensive.” However, “the commanding officers of legions” could grant free black householders up to a twelve-months license to own and carry arms; slaves could also receive a permit, “on application of their owners, shewing sufficient cause . . . why such indulgence should be granted.” In 1822, a statutory revision gave licensing powers to the justices of the peace (for slaves) and to county courts (for free blacks) and did not limit the duration of the licenses. The licensing system was replaced by a prohibition in 1852.
Maryland’s 1806 statute forbade “any negro or mulatto within this state to keep any dog, bitch, or gun.” However, a free “negro or mulatto” could apply to a justice of the peace for a license, valid for no more than one year, to keep one dog or to carry a gun.
North Carolina in 1841 required that all free persons of color must have an annual license from the Court of Pleas and Quarter Sessions in order to own or carry firearms, swords, daggers, or bowie knives. The law was challenged and upheld in the 1844 case State v. Newsom. A trial court had ruled that arms licensing was a plain violation of the state constitutional right to keep and bear arms. The state supreme court unanimously agreed. However, said the supreme court, free people of color because they were a subordinate caste. “[F]ree people of color have been among us, as a separate and distinct class, requiring, from necessity, in many cases, separate and distinct legislation.” It was up to “the control of the County Court, giving them the power to say, in the exercise of a sound discretion, who, of this class of persons, shall have a right to the licence, or whether any shall.” The case is an example of mischief that results when judges think they can invent reasons not to follow the plain text of a constitution.
Kopel’s constitutional critique is devastating enough, but he delivered another stinging rebuke to lawmakers by adding some insight into the one study Democrats have pointed to in an attempt to justify the waiting period legislation. Kopel points out that while authors of HB 1219 claim that “one study estimates that mandatory waiting periods to receive firearms led to a 7 to 11 percent reduction in suicides by firearm” and that the study indicated “delaying the purchase of firearms by a few days reduces firearm homicides by approximately 17 percent”, they’re conveniently ignoring what else the study had to say.
… the lack of confidence that the drafters of HB23-1219 have in that study is shown by the choice not to even mention the study’s name, lest interested persons find the study and read what it actually says. The study, by business school professors Michael Luca et al., was published in the journal PNAS. The study finds that background checks have no statistically discernable effect on homicide or suicide, and may lead to statistically significant increases in crime and suicide. Thus, persons who had genuine confidence in the PNAS article would be introducing legislation to repeal the 2013 Colorado statute that expanded background checks to include noncommercial firearms transfer and loans.
Yeah, like that will happen. Kopel’s right to call out lawmakers for cherry-picking the findings from the study that suits their anti-gun agenda, but he also expertly dismantled the study’s claim that waiting periods led to that dramatic reduction in homicides.
While finding that background checks have no beneficial effects, the study claims that handgun waiting periods reduce total gun homicide by 17%. If this is true, then in states that do not have waiting periods, about 17% (or in 1 in 6) of all gun homicides are perpetrated with a handgun what was purchased just a few days before the homicide. If this were true, then the bill’s proponents should be able to list hundreds of examples of recent Colorado homicides in which a person went to a gun store, passed a background check, bought a handgun, and murdered someone within a few days.
However, according to the federal Bureau of Alcohol, Tobacco, Firearms & Explosives, fewer only about 10% of crime guns in Colorado were acquired within three months of the crime. Thus, it is implausible that 17% of gun homicides are perpetrated with handguns purchased just a few days before a murder.
Finally, the PNAS article does not distinguish offensive, criminal homicide from defensive, justifiable homicide. Thus, we do not know how much of any homicide reduction was because victims were denied the means to defend themselves against attackers such as stalkers.
Look, we all want to reduce violent crime and suicides. That’s not the issue. The question is how to most effectively do that while still respecting the fundamental rights and individual liberties that we all possess, and waiting periods are a terrible way to go about it. The really sad thing is that Colorado gun owners, FFLs, and Second Amendment advocates are already doing great work to prevent gun-related suicides, and are doing it without any intervention or help from the state. I have my doubts about whether it will happen, but the Democratic majority in Denver would be wise to listen to Kopel’s analysis and reject this waiting period bill and start supporting the grassroots efforts of gun owners to ensure that those in crisis get the support they need.