2A Coalition Teams Up to Oppose Vermont Waiting Period Law

The Second Amendment Foundation, along with the National Rifle Association, California Rifle & Pistol Association, Second Amendment Law Center, and Minnesota Gun Owners Caucus, are encouraging a federal appellate court to overturn a lower court’s decision upholding Vermont’s 7-day waiting period on firearm transfers. 

The amicus brief, authored by CRPA President Chuck Michel and SAF Director of Research and Education Kostas Moros, argues that the district court erred when taking a “nuanced approach” in looking for an historic analogue to the state’s waiting period. 

However much the State may try and twist history, if a law-abiding citizen wanted to purchase a weapon in 1791, 1865, or any other time before the late Twentieth Century, they could do so without any waiting period. For that matter, even today only 13 states have implemented waiting periods, while the other 37 have not. There isn’t even a modern tradition of waiting periods, let alone a historical tradition of them. They did not exist in the past and remain an outlier practice today. 

Impulsive violence was a problem throughout our history just as it is now, yet the founding generation as well as those that followed it never sought to delay those seeking to purchase firearms. To be sure, the State claims that there were effectively waiting periods due to technological and transport limitations of the time—a pointAmici rebut in more detail below—but it remains true that if someone in 1791 walked into a local gunsmith’s shop and firearms or other weapons were available for sale, they could buy them immediately, without any wait.

That’s hugely important. In order for any kind of historical analogue to suffice, the “why” of an earlier law and the modern statute in question must be substantially similar, if not identical. Waiting periods are billed as “cooling off periods” designed to prevent impulsive behavior with firearms, and there’s no reason why lawmakers in 1791, 1865, or anytime before the late 20th century couldn’t have imposed similar restrictions in the past if they believed those laws were compatible with the Second Amendment. 

This absence of a similar law is important because “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” The district court correctly identified a societal problem that has clearly existed throughout our history that the modern law claims to address, but found no distinctly similar (or even vaguely similar) historical law that justified Vermont’s law. At that point, it should have simply concluded that Vermont’s law was inconsistent with our history and therefore unconstitutional.

Instead, it took it upon itself to rely on unserious historical comparisons to uphold the law by any means necessary. Primarily, it looked to laws barring intoxicated people from possessing arms until they sobered up, ruling that they were similar to Vermont’s waiting period because “[i]n both cases, the relevant legislature identifies a period during which it believes that firearms pose an extreme risk to public safety. It then mandates that individuals refrain from carrying or using firearms until those people can exercise their Second Amendment rights safely and effectively.”

As Michel and Moros argue, that comparison doesn’t stand up to the slightest bit of scrutiny. The “why” is different, for one thing. The statute cited by the district court was about preventing drunken violence. The Vermont waiting-period law, however, applies to teetotalers and lasts far longer than most bouts of inebriation. It’s not about stopping drunks from mishandling firearms. It’s about preventing all citizens from immediately exercising their Second Amendment rights after purchasing a gun. 

The pair go on to argue that the “how” of those statutes differ dramatically as well. 

For the laws related to alcoholt o temporarily disarm someone, that individual needed to make the choice to get drunk first. And it was only to that narrow subset of individuals that those laws applied. “Once the drunk sobered up, he could carry or use a gun once again.” No historical law imposed any wait time on every gun buyer because some of them might be drunk. But that is exactly what Vermont’s law does when it comes to combating impulsive violence. “The Waiting Period Act . . . applies a blanket burden across all of society, assuming that everyone is dangerous or unstable before they can exercise their Second Amendment right.”

That burden is also not comparable to the burden of the laws barring intoxicated individuals from possessing firearms until they sobered up. Sobriety can be achieved in a matter of hours, but there is no way to make the clock tick faster. Seven days is seven days, and there is not a darn thing a gun owner can do to speed up the waiting period and take possession of the gun they’ve lawfully purchased. 

The brief authored by Michel and Moros provides a strong rebuttal to the district court. I don’t have a lot of faith in the Second Circuit to treat the Second Amendment as a first-class right, but I hope I’m wrong and the panel of three judges will approach Vermont’s waiting period law with the respect that fundamental right deserves. 

Editor’s Note: After more than 40 days of screwing Americans, a few Dems have finally caved. The Schumer Shutdown was never about principle—just inflicting pain for political points.

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