Earlier this week a federal judge in Colorado heard oral arguments in a lawsuit challenging the state's 3-day waiting period on gun transfers, with the plaintiffs pointing to a recent decision by the Tenth Circuit Court of Appeals that ruled New Mexico's 7-day waiting period unconstitutional. That Tenth Circuit decision was also cited in a new cert petition filed with the Supreme Court in a case dealing with Maine's 3-day waiting period.
Unlike the Tenth Circuit, the First Circuit upheld Maine's law; not by citing any historical analogues, but by deciding that the Second Amendment isn't even implicated by the law. According to the appellate court's warped logic, the arbitrary "cooling off period" is merely a condition on the commercial sales of firearms, which the Supreme Court said were presumptively constitutional way back in Heller.
The cert petition, authored by Second Amendment legal star Erin Murphy, does a fantastic job of dismantling the First Circuit's argument. As she points out, the Court has made it clear that if the plain text of the Second Amendment is implicated by a modern law, then that law is presumptively unconstitutional, and it's up to the state to point to longstanding, widespread, and widely accepted laws from our nation's past that have both the same "how" and "why" as the modern statute.
So, does Maine's 3-day waiting period affect the keeping and bearing of arms? Obviously, the answer is yes.
Petitioners or their customers would like to take possession of firearms (“Arms”) to have (“keep”) and carry (“bear”), and Section 2016 bars them from doing so for three days. That suffices to satisfy the plain-text inquiry. A law that “restricts [the] ability to bear or keep [a] firearm.. unquestionably implicates ... Second Amendment rights”—especially when, as here, it does nothing else.
The plaintiffs say the First Circuit's "contrary conclusion" is "wrong at every turn."
The court first held that because the Second Amendment does not explicitly say “purchase” or “acquire” alongside “keep” and “bear,” Section 2016 does not “regulate conduct covered by the Second Amendment’s plain text” at all. That makes no sense. Section 2016 prevents people who want to keep and bear a firearm from doing so. Indeed, that is the whole point: The state has barred people from acquiring a firearm because it does not want people to be able to keep or bear one until 72 hours has passed. That Section 2016 prevents people from engaging in that conduct by prohibiting the transfer of a firearm makes no difference. When the whole and sole point of a law is to prevent people from keeping or bearing firearms, the law obviously implicates the right to keep and bear firearms.
Yes, the Court made that comment in Heller about conditions placed on commercial sales being presumptively constitutional, but as Murphy notes, "it has never embraced the proposition that laws regulating firearms transactions need not be consistent with our Nation’s historical tradition of firearms regulation," adding that wouldn't make any sense. If anti-gun politicians could pass whatever laws they wanted on the acquisition of firearms, including outright bans on getting ahold of a gun, it would turn the Second Amendment into a dead letter. What is important is whether or not a law "burdens those wishing to exercise their Second Amendment rights," and Maine's waiting period law unquestionably does.
The fact that there's a split between the First and Tenth Circuits on the issue bodes well for the plaintiffs, even if it doesn't guarantee that SCOTUS will grant cert. The justices have let a circuit court split on the Second Amendment rights of young adults to continue, and it's possible they'll do the same with waiting periods.
Murphy makes a powerful case for the Court to address and resolve this split now, though. This isn't some theoretical discussion, she argues. Maine's waiting period law harms those who want a firearm as quickly as possible because of threats against their lives. Yet Maine's view, adopted by the First Circuit, is that “victims who believe firearms are necessary for their immediate safety” should leave it up to the state to decide what's best for them.
Indeed, Maine has been remarkably forthright about its judgment. In its view, everyone is better off without “a firearm as part of their safety plans,” so it is really doing people a favor by disarming them in their times of greatest need. That paternalistic judgment stands in marked contrast to the Framers’ decision to “elevate[] above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”
“[O]ur ancestors would never have accepted” a law so openly premised on distrust of those seeking to exercise that right. This Court should grant certiorari and reverse—and provide a much-needed reminder that it is for “law-abiding, responsible citizens” to decide how best to defend “hearth and home,” not for states to decide whether a firearm “is really worth insisting upon.”
Granting cert to Beckwith v. Frey would have national implications, and though the Court could wait to see what happens with the case involving Colorado's waiting period law, there's no guarantee that Colorado would appeal to SCOTUS if it loses its case. New Mexico has not appealed the Ortega decision that led to a preliminary injunction on its waiting period, and if Colorado loses at the Tenth Circuit as well the gun control lobby will put enormous pressure on the state's attorney general to keep those losses confined to the Tenth Circuit. Beckwith v. Frey is the best vehicle for SCOTUS to address this fundamentally important issue. Let's hope there are at least four justices willing to get behind the wheel and drive this case forward when it's discussed in conference later this fall.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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