Silvester v. Becerra ( 2018 )

Cite as: 583 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
JEFF SILVESTER, ET AL. v. XAVIER BECERRA,
ATTORNEY GENERAL OF CALIFORNIA
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17–342. Decided February 20, 2018
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
The Second Amendment protects “the right of the people
to keep and bear Arms,” and the Fourteenth Amendment
requires the States to respect that right, McDonald v.
Chicago, 561 U.S. 742, 749–750 (2010) (plurality opinion);
id., at 805 (THOMAS, J., concurring in part and concurring
in judgment). Because the right to keep and bear arms is
enumerated in the Constitution, courts cannot subject
laws that burden it to mere rational-basis review. District
of Columbia v. Heller, 554 U.S. 570, 628, n. 27 (2008).
But the decision below did just that. Purporting to
apply intermediate scrutiny, the Court of Appeals upheld
California’s 10-day waiting period for firearms based
solely on its own “common sense.” Silvester v. Harris, 843
F.3d 816, 828 (CA9 2016). It did so without requiring
California to submit relevant evidence, without addressing
petitioners’ arguments to the contrary, and without ac-
knowledging the District Court’s factual findings. This
deferential analysis was indistinguishable from rational-
basis review. And it is symptomatic of the lower courts’
general failure to afford the Second Amendment the re-
spect due an enumerated constitutional right.
If a lower court treated another right so cavalierly, I
have little doubt that this Court would intervene. But as
evidenced by our continued inaction in this area, the
Second Amendment is a disfavored right in this Court.
2 SILVESTER v. BECERRA
THOMAS, J., dissenting
Because I do not believe we should be in the business of
choosing which constitutional rights are “really worth
insisting upon,” Heller, supra, at 634, I would have granted
certiorari in this case.
I
When the average person wants to buy a firearm in
California, he must wait 10 days before the seller can give
it to him. Cal. Penal Code Ann. §§26815 (West 2012),
27540 (West Cum. Supp. 2018). This 10-day waiting
period applies to all types of firearms. But it has excep-
tions for certain purchasers, including peace officers,
§26950 (West 2012), and special permit holders, §26965.
California’s waiting period is the second longest in the
country. Besides California, only eight States and the
District of Columbia have any kind of waiting period.
Four of those jurisdictions have waiting periods for all
firearms.1 The other five have waiting periods for only
certain types of firearms.2 Previous versions of Califor-
nia’s waiting period likewise were limited to handguns.3
California enacted its current waiting period for two
reasons. First, the waiting period gives state authorities
time to run a background check. In addition to the back-
——————
1 See
Haw. Rev. Stat. Ann. §134–2(e) (2016 Cum. Supp.) (14 days); Ill.
Comp. Stat., ch. 720, §5/24–3(A)(g) (West 2016) (3 days for handguns, 1
day for long guns); R. I. Gen. Laws §§11–47–35(a)(1) (2016 Supp.), 11–
47–35.1 (2012), 11–47–35.2 (7 days); D. C. Code Ann. §22–4508 (Cum.
Supp. 2017) (10 days).
2 See Fla. Stat. §790.0655 (2017) (3 days for handguns); Iowa Code
Ann. §724.20 (West Cum. Supp. 2017) (3 days for handguns); Md. Pub.
Saf. Code Ann. §§5–123 (2011), 5–124, 5–101(r) (Supp. 2017) (7 days for
handguns and “assault weapons”); Minn. Stat. §624.7132 (2016) (5
business days for handguns and “semiautomatic military-style assault
weapon[s]”); N. J. Stat. Ann. §2C:58–2(a)(5)(a) (West 2016) (7 days for
handguns).
3 See 1975 Cal. Stats. ch. 997 (15 days); 1965 Cal. Stats. ch. 1007 (5
days); 1955 Cal. Stats. chs. 1521–1522 (3 days); 1923 Cal. Stats. ch.
339, §10 (1 day).
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THOMAS, J., dissenting
ground check required by federal law, 18 U.S. C. §922(t),
California requires its own background check, searching at
least six databases to confirm a purchaser’s identity, gun
ownership, legal history, and mental health. One of those
databases, the Automated Firearms System (AFS), collects
reports to help determine who possesses a given gun at a
given time. Second, California’s waiting period creates a
“cooling off ” period. The 10-day window gives individuals
who might use a firearm to harm themselves or others an
opportunity to calm down.
Petitioners Jeff Silvester and Brandon Combs are lawful
gun owners who live in California. They, along with two
nonprofits, filed a lawsuit challenging the constitutionality
of California’s waiting period under the Second Amend-
ment. Specifically, petitioners allege that the waiting
period is unconstitutional as applied to “subsequent pur-
chasers”—individuals who already own a firearm accord-
ing to California’s AFS database and individuals who have
a valid concealed-carry license.
A
After a 3-day bench trial, the District Court entered
judgment for petitioners. Silvester v. Harris, 41
F. Supp. 3d 927, 934–935 (ED Cal. 2014). Applying in-
termediate scrutiny, the District Court concluded that
California’s waiting period was not reasonably tailored to
promote an important governmental interest. Regarding
background checks, the District Court found that 20 per-
cent of background checks are auto-approved and take less
than two hours to complete. Id., at 964. The other 80
percent take longer, id., at 954, but petitioners did not
challenge the background checks or the time it takes to
complete them. Id., at 968, and n. 38.
That left the cooling-off period. After reviewing Califor-
nia’s studies on the relationship between waiting periods
and gun casualties, the District Court found them incon-
4 SILVESTER v. BECERRA
THOMAS, J., dissenting
clusive. See id., at 954–955. The District Court also noted
that the studies “seem to assume that the individual does
not already possess a firearm.” Id., at 966. California
submitted “no evidence” about subsequent purchasers,
which was significant because a waiting period “will not
deter an individual from committing impulsive acts of
violence with a separate firearm that is already in his or
her possession.” Id., at 965–966. Even if some cooling-off
period is necessary, California made no “attempt to defend
a 10-day waiting period,” and the background-check pro-
cess will “naturally” create “a waiting period of at least
1-day” for 80 percent of purchasers. Ibid. The District
Court also found that individuals who meet California’s
requirements for a concealed-carry license are uniquely
“unlikely” to “engage in impulsive acts of violence.” Id., at
969.
California argued that a waiting period could still work
for subsequent purchasers in some circumstances, but the
District Court rejected this argument as overly specula-
tive. While a subsequent purchaser’s firearm could be
lost, stolen, or broken, California submitted “no evidence
. . . to quantify” how often this occurs. Id., at 966. And
state authorities could always check the AFS database to
determine whether a subsequent purchaser still had a
firearm—a reliable method that law enforcement officers
use in the field. Id., at 966–967. Further, California did
not prove that waiting periods deter subsequent purchas-
ers who want to buy a larger capacity gun. California’s
expert identified only one anecdotal example of a subse-
quent purchaser who had committed an act of gun vio-
lence, and the expert conceded that a waiting period would
not have deterred that individual. Id., at 966, n. 35.
B
The Court of Appeals for the Ninth Circuit reversed.
843 F.3d, at 829. The Ninth Circuit spent most of its
Cite as: 583 U. S. ____ (2018) 5
THOMAS, J., dissenting
opinion summarizing the background of this litigation,
circuit precedent on the Second Amendment, and this
Court’s decision in Heller (including the dissent). See 843
F.3d, at 819–826. The Ninth Circuit then concluded that
“the test for intermediate scrutiny from First Amendment
cases” applies to California’s waiting period. Id., at 821;
see id., at 826–827. Stressing that this test is “not a strict
one,” the Ninth Circuit held that California’s law prevents
gun violence by creating a cooling-off period. Id., at 827.
Although California’s studies did not isolate the effect of
waiting periods on subsequent purchasers, those studies
“confirm the common sense understanding” that cooling-
off periods deter violence and self-harm—an understand-
ing that “is no less true” for subsequent purchasers. Id.,
at 828.
The assumption that subsequent purchasers would just
use the gun they already own was “not warranted,” the
Ninth Circuit concluded. Ibid. While it assumed that the
AFS database would accurately report whether a subse-
quent purchaser still owns a gun, id., at 826, the Ninth
Circuit noted that a subsequent purchaser “may want to
purchase a larger capacity weapon that will do more dam-
age when fired into a crowd,” id., at 828. That possibility
was enough for the Ninth Circuit to uphold California’s
waiting period, since intermediate scrutiny requires “only
that the regulation ‘promot[e] a substantial government
interest that would be achieved less effectively absent the
regulation.’ ” Id., at 829.
II
The Second Amendment guarantees “a personal right to
keep and bear arms for lawful purposes.” McDonald, 561
U.S., at 780 (plurality opinion). This Court has not defin-
itively resolved the standard for evaluating Second
Amendment claims. Heller did not need to resolve it
because the law there failed “any of the standards of scru-
6 SILVESTER v. BECERRA
THOMAS, J., dissenting
tiny that we have applied to enumerated constitutional
rights.” 554 U.S., at 628. After Heller, the Courts of
Appeals generally evaluate Second Amendment claims
under intermediate scrutiny. See Miller, Text, History,
and Tradition: What the Seventh Amendment Can Teach
Us About the Second, 122 Yale L. J. 852, 867 (2013).
Several jurists disagree with this approach, suggesting
that courts should instead ask whether the challenged law
complies with the text, history, and tradition of the Second
Amendment. See, e.g., Tyler v. Hillsdale County Sheriff ’s
Dept., 837 F.3d 678, 702–703 (CA6 2016) (en banc)
(Batchelder, J., concurring in most of judgment); Houston
v. New Orleans, 675 F.3d 441, 451–452 (Elrod, J., dissent-
ing), opinion withdrawn and superseded on reh’g, 682 F.
3d 361 (CA5 2012) (per curiam); Heller v. District of Co-
lumbia, 670 F.3d 1244, 1271 (CADC 2011) (Kavanaugh,
J., dissenting).4
Although Heller did not definitively resolve the standard
for evaluating Second Amendment claims, it rejected two
proposed standards. The Court first rejected a “freestand-
ing ‘interest-balancing’ approach,” which would have
weighed a law’s burdens on Second Amendment rights
against the governmental interests it promotes. 554 U.S.,
at 634. “The very enumeration of the [Second Amend-
ment] right,” Heller explained, eliminates courts’ power “to
decide on a case-by-case basis whether the right is really
worth insisting upon.” Ibid. The Court also rejected
“rational-basis scrutiny.” Id., at 628, n. 27. Heller found it
“[o]bviou[s]” that rational-basis review “could not be used
to evaluate the extent to which a legislature may regulate
a specific, enumerated right.” Ibid. Otherwise, the Second
Amendment “would be redundant with the separate con-
——————
4 I, too, have questioned this Court’s tiers-of-scrutiny jurisprudence.
See Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___–___ (2016)
(dissenting opinion) (slip op., at 11–16).
Cite as: 583 U. S. ____ (2018) 7
THOMAS, J., dissenting
stitutional prohibitions on irrational laws, and would have
no effect.” Ibid.
Rational-basis review is meaningfully different from
other standards for evaluating constitutional rights, in-
cluding the intermediate-scrutiny standard that the Ninth
Circuit invoked here. While rational-basis review allows
the government to justify a law with “rational speculation
unsupported by evidence or empirical data,” FCC v. Beach
Communications, Inc., 508 U.S. 307, 315 (1993), interme-
diate scrutiny requires the government to “demonstrate
that the harms it recites are real” beyond “mere specula-
tion or conjecture,” Edenfield v. Fane, 507 U.S. 761, 770–
771 (1993). And while rational-basis review requires only
that a law be “rational . . . at a class-based level,” Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 86 (2000), intermedi-
ate scrutiny requires a “ ‘reasonable fit’ ” between the law’s
ends and means, Cincinnati v. Discovery Network, Inc.,
507 U.S. 410, 416 (1993).
The Ninth Circuit claimed to be applying intermediate
scrutiny, but its analysis did not resemble anything ap-
proaching that standard. It allowed California to prove a
governmental interest with speculation instead of evi-
dence. It did not meaningfully assess whether the 10-day
waiting period is reasonably tailored to California’s pur-
ported interest. And it did not defer to the factual findings
that the District Court made after trial. The Ninth Circuit
would not have done this for any other constitutional
right, and it could not have done this unless it was apply-
ing rational-basis review.
A
The Ninth Circuit allowed California to justify its wait-
ing period with mere “rational speculation unsupported by
evidence or empirical data,” Beach Communications,
supra, at 315. The court rejected petitioners’ as-applied
challenge based solely on its “common sense understand-
8 SILVESTER v. BECERRA
THOMAS, J., dissenting
ing” that the studies about cooling-off periods apply to
subsequent purchasers. 843 F.3d, at 828. To be sure, a
law can satisfy heightened scrutiny based on “[a] long
history, a substantial consensus, and simple common
sense.” Burson v. Freeman, 504 U.S. 191, 211 (1992)
(plurality opinion). But not one of those bases was present
here. The District Court found that waiting periods do not
have a long historical pedigree. 41 F. Supp. 3d, at 963. It
found no consensus among States that waiting periods are
needed and no consensus among experts that they deter
gun violence. Id., at 954–955, 963. And even assuming
the effectiveness of cooling-off periods is a question of
“common sense,” instead of statistics, the Ninth Circuit’s
reasoning was the opposite of common sense. Common
sense suggests that subsequent purchasers contemplating
violence or self-harm would use the gun they already own,
instead of taking all the steps to legally buy a new one in
California.5
The Ninth Circuit’s only response to this point was that
a subsequent purchaser might want a “larger capacity
weapon that will do more damage when fired into a
crowd.” 843 F.3d, at 828. But California presented no
evidence to substantiate this concern. According to the
District Court, California’s expert identified one anecdotal
example of a subsequent purchaser who committed an act
of gun violence, but then conceded that a waiting period
would have done nothing to deter that individual. 41
F. Supp. 3d, at 966, n. 35. And the Ninth Circuit did not
——————
5 In
fact, the Ninth Circuit’s “common sense” conclusion was a logical
fallacy. Studies suggesting that waiting periods decrease firearm
casualties for all purchasers do not suggest that waiting periods de-
crease firearm casualties for subsequent purchasers; the observed
decrease could be attributable solely to first-time purchasers. By
assuming that a conclusion about the whole applies to each of its parts,
the Ninth Circuit committed the “fallacy of division.” See P. Hurley, A
Concise Introduction to Logic 170–172 (6th ed. 1997).
Cite as: 583 U. S. ____ (2018) 9
THOMAS, J., dissenting
even address the District Court’s finding that individuals
who satisfy the requirements for a concealed-carry license
are uniquely unlikely to engage in such behavior. Id., at
969. Needless to say, a State that offers “no evidence or
anecdotes in support of [a] restriction” should not prevail
under intermediate scrutiny. Florida Bar v. Went For It,
Inc., 515 U.S. 618, 628 (1995).
B
Even if California had presented more than “speculation
or conjecture” to substantiate its concern about high-
capacity weapons, Edenfield, supra, at 770, the Ninth
Circuit did not explain why the 10-day waiting period is
“sufficiently tailored to [this] goal,” Rubin v. Coors Brew-
ing Co., 514 U.S. 476, 490 (1995). And there are many
reasons to doubt that it is. California’s waiting period is
not limited to high-capacity weapons. Cf. Discovery Net-
work, supra, at 417, n. 13 (courts should evaluate “less-
burdensome alternatives” under intermediate scrutiny).
And its waiting period already has exceptions for peace
officers and special permit holders—individuals who, like
subsequent purchasers, have a demonstrated history of
responsible firearm ownership. Cf. Greater New Orleans
Broadcasting Assn., Inc. v. United States, 527 U.S. 173,
190 (1999) (courts should evaluate “exemptions and incon-
sistencies” under intermediate scrutiny). The District
Court also found that California presented no evidence
supporting a 10-day waiting period. 41 F. Supp. 3d, at
966. For much of its history, California’s waiting period
was shorter and applied only to handguns. Id., at 963.
And the District Court found that a 1-day waiting period
is inevitable for most purchasers because their back-
ground checks are not autoapproved. Id., at 965–966.
The Ninth Circuit did not address these obvious mis-
matches between the ends and means of California’s wait-
ing period. It instead dismissed any tailoring concerns by
10 SILVESTER v. BECERRA
THOMAS, J., dissenting
observing that intermediate scrutiny requires “only that
the regulation ‘promote a substantial government interest
that would be achieved less effectively absent the regula-
tion.’ ” 843 F.3d, at 829.6 But that observation was in-
complete. Intermediate scrutiny also requires that a law
not “burden substantially more [protected activity] than is
necessary to further [the government’s] interest.” Turner
Broadcasting System, Inc. v. FCC, 520 U.S. 180, 214
(1997) (internal quotation marks omitted). The Ninth
Circuit did not ask this second question—a question that
is, of course, irrelevant to a court applying rational-basis
review, see Kimel, 528 U.S., at 85–86.
C
Lastly, the Ninth Circuit ignored several ordinary prin-
ciples of appellate review. While rational-basis review “is
not subject to courtroom factfinding,” Beach Communica-
tions, 508 U.S., at 315, intermediate scrutiny is. And
here, the District Court presided over a 3-day trial and
made several findings of fact. The Ninth Circuit was
supposed to review those findings for clear error. See Fed.
Rule Civ. Proc. 52(a)(6). Yet the Ninth Circuit barely
mentioned them. And it never explained why it had the
“definite and firm conviction” that they were wrong.
United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948).
California contends that the District Court did not make
the kind of “historical or adjudicative” findings that war-
rant deference. Brief in Opposition 9. But the Federal
Rules do not “exclude certain categories of factual findings
from the obligation of a court of appeals to accept a district
——————
6 The Ninth Circuit also cited its decision in Jackson v. City and
County of San Francisco, 746 F.3d 953 (2014)—another case where it
applied an overly lenient standard to reject a Second Amendment
claim, see 576 U. S. ___ (2015) (THOMAS, J., dissenting from denial of
certiorari).
Cite as: 583 U. S. ____ (2018) 11
THOMAS, J., dissenting
court’s findings unless clearly erroneous.” Pullman-
Standard v. Swint, 456 U.S. 273, 287 (1982). A court of
appeals must defer to a district court’s factual findings,
even when the findings “do not rest on credibility determi-
nations, but are based instead on physical or documentary
evidence.” Anderson v. Bessemer City, 470 U.S. 564, 574
(1985). In fact, deference is “[p]articularly” appropriate
when the issues require familiarity with “principles not
usually contained in the general storehouse of knowledge
and experience.” Graver Tank & Mfg. Co. v. Linde Air
Products Co., 339 U.S. 605, 610 (1950). And “no broader
review is authorized here simply because this is a consti-
tutional case, or because the factual findings at issue may
determine the outcome of the case.” Maine v. Taylor, 477
U.S. 131, 145 (1986).
III
The Ninth Circuit’s deviation from ordinary principles of
law is unfortunate, though not surprising. Its dismissive
treatment of petitioners’ challenge is emblematic of a
larger trend. As I have previously explained, the lower
courts are resisting this Court’s decisions in Heller and
McDonald and are failing to protect the Second Amend-
ment to the same extent that they protect other constitu-
tional rights. See Friedman v. Highland Park, 577 U. S.
___, ___ (2015) (THOMAS, J., dissenting from denial of
certiorari) (slip op., at 1); Jackson v. City and County of
San Francisco, 576 U. S. ___, ___ (2015) (THOMAS, J.,
dissenting from denial of certiorari) (slip op., at 1).
This double standard is apparent from other cases
where the Ninth Circuit applies heightened scrutiny. The
Ninth Circuit invalidated an Arizona law, for example,
partly because it “delayed” women seeking an abortion.
Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d
905, 917 (2014). The court found it important there, but
not here, that the State “presented no evidence whatso-
12 SILVESTER v. BECERRA
THOMAS, J., dissenting
ever that the law furthers [its] interest” and “no evidence
that [its alleged danger] exists or has ever [occurred].” Id.,
at 914–915. Similarly, the Ninth Circuit struck down a
county’s 5-day waiting period for nude-dancing licenses
because it “unreasonably prevent[ed] a dancer from exer-
cising first amendment rights while an application [was]
pending.” Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1060
(1986). The Ninth Circuit found it dispositive there, but
not here, that the county “failed to demonstrate a need for
[the] five-day delay period.” Ibid. In another case, the
Ninth Circuit held that laws embracing traditional mar-
riage failed heightened scrutiny because the States pre-
sented “no evidence” other than “speculation and conclu-
sory assertions” to support them. Latta v. Otter, 771 F.3d
456, 476 (2014). While those laws reflected the wisdom of
“thousands of years of human history in every society
known to have populated the planet,” Obergefell v. Hodges,
576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip
op., at 25), they faced a much tougher time in the Ninth
Circuit than California’s new and unusual waiting period
for firearms. In the Ninth Circuit, it seems, rights that
have no basis in the Constitution receive greater protec-
tion than the Second Amendment, which is enumerated in
the text.
Our continued refusal to hear Second Amendment cases
only enables this kind of defiance. We have not heard
argument in a Second Amendment case for nearly eight
years. Peruta v. California, 582 U. S. ___, ___ (2017)
(THOMAS, J., dissenting from denial of certiorari) (slip op.,
at 7). And we have not clarified the standard for assessing
Second Amendment claims for almost 10. Meanwhile, in
this Term alone, we have granted review in at least five
cases involving the First Amendment and four cases in-
volving the Fourth Amendment—even though our juris-
prudence is much more developed for those rights.
If this case involved one of the Court’s more favored
Cite as: 583 U. S. ____ (2018) 13
THOMAS, J., dissenting
rights, I sincerely doubt we would have denied certiorari.
I suspect that four Members of this Court would vote to
review a 10-day waiting period for abortions, notwith-
standing a State’s purported interest in creating a “cooling
off ” period. Cf. Akron Center for Reproductive Health, Inc.
v. Akron, 651 F.2d 1198, 1208 (CA6 1981) (invalidating a
24-hour waiting period for abortions that was meant to
create a “ ‘cooling off period’ ”), aff ’d in relevant part, 462
U.S. 416, 450 (1983); Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 887 (1992) (joint opinion of
O’Connor, KENNEDY, and Souter, JJ.) (disavowing Akron
but upholding a 24-hour waiting period only “on the record
before us, and in the context of this facial challenge”). I
also suspect that four Members of this Court would vote to
review a 10-day waiting period on the publication of racist
speech, notwithstanding a State’s purported interest in
giving the speaker time to calm down. Cf. Forsyth County
v. Nationalist Movement, 505 U.S. 123 (1992) (holding
that the First Amendment forbids a county from charging
even a small permitting fee to offset the costs of providing
security for a white-nationalist rally); Virginia v. Black,
538 U.S. 343 (2003) (holding that the First Amendment
protects the burning of a 25-foot cross at a Ku Klux Klan
rally); Brandenburg v. Ohio, 395 U.S. 444, 446, n. 1 (1969)
(per curiam) (holding that the First Amendment protects a
film featuring Klan members wielding firearms, burning a
cross, and chanting “ ‘Bury the niggers’ ”). Similarly, four
Members of this Court would vote to review even a 10-
minute delay of a traffic stop. Cf. Rodriguez v. United
States, 575 U. S. ___ (2015) (holding that the Fourth
Amendment prohibits the police from delaying a traffic
stop seven or eight minutes to conduct a dog sniff). The
Court would take these cases because abortion, speech,
and the Fourth Amendment are three of its favored rights.
The right to keep and bear arms is apparently this Court’s
constitutional orphan. And the lower courts seem to have
14 SILVESTER v. BECERRA
THOMAS, J., dissenting
gotten the message.
* * *
Nearly eight years ago, this Court declared that the
Second Amendment is not a “second-class right, subject to
an entirely different body of rules than the other Bill of
Rights guarantees.” McDonald, 561 U.S., at 780 (plural-
ity opinion). By refusing to review decisions like the one
below, we undermine that declaration. Because I still
believe that the Second Amendment cannot be “singled out
for special—and specially unfavorable—treatment,” id., at
778–779 (majority opinion), I respectfully dissent from the
denial of certiorari.