Since 1923, California has had a law requiring people who wish to buy firearms to wait a certain period of time before they could acquire the gun, although the length of this waiting period has varied over the years. Last Friday, however, a federal judge held that many gun buyers have a constitutional right not to be subject to the ten day waiting period currently required by state law. According to Judge Anthony Ishii, a Clinton appointee, this waiting period cannot be applied “to those persons who already lawfully possess a firearm as confirmed by” a state database. Nor can it be applied to people with licences to carry a concealed weapon.
A core prong of Judge Ishii’s logic is that, whatever danger arises when someone newly obtains a gun, that danger already exists if they already possess a firearm. The strongest argument for California’s waiting period is that it provides a “cooling off period” that discourages “impulsive acts of violence to others or to themselves.” Yet Ishii concludes that this argument does not apply to current gun owners, because “[i]f a person already possess a firearm, then that person will generally have access to that firearm and may commit impulsive acts of violence with it.”
In reaching this conclusion, Ishii dismisses the argument that a potential shooter becomes more dangerous if they obtain additional weapons or new kinds of weapons. At one point, he even dismisses a law enforcement officer’s testimony about an mass shooter who possessed “at least one pistol, a rifle, and an assault-style weapon, and who killed nine people in Cupertino, California,” in part by noting that this shooter “did not use the most dangerous firearm (the assault weapon).”
In reality, however, the question of which kind of firearm is the “most dangerous” depends on circumstance. Though an assault rifle may be particularly deadly during a mass shooting incident, especially if it is equipped with a high-capacity magazine, the deadliest guns in the United States are not assault rifles. They are handguns. According to FBI data, approximately 47,500 murders were committed with a firearm in 2001-2005. Almost 8 in 10 of these murders involved a handgun.
A potential assailant who approaches their intended victim while carrying a long gun is likely to be noticed and could potentially be stopped before they fire a shot. Assault rifles, hunting guns and similar weapons are difficult to conceal and likely to attract attention on the street. For this reason, a potential assailant who already owns a long gun would become dramatically more dangerous if they obtained a weapon they could conceal until they drew it on their victim. A waiting period, however, may allow this assailant to “cool off” before they obtain a handgun.
Two caveats should be noted with respect to Ishii’s decision. The first is that he stays his order for 180 days, thus giving the state plenty of time to appeal the decision before it takes effect. There also is no guarantee that Ishii’s decision will be upheld by the United States Court of Appeals for the Ninth Circuit, which has an overwhelmingly Democratic membership.
[HT: Eugene Volokh]