Montana Attorney General Austin Knudsen and a coalition of 24 other attorneys general and state officials have filed an amicus brief with the Supreme Court urging the justices to grant cert to Beckwith v. Frey, a challenge to Maine’s 72-hour waiting period for firearm transfers.
A district court ruled in favor of the plaintiffs but was reversed by the First Circuit, which held that waiting period laws don’t even implicate the Second Amendment. In fact, according to the appellate court, only when laws are so abusive that they effectively curtail the right entirely does the Second Amendment even potentially provide any protections.
Knudsen and his co-amici argue that placing a “cooling-off law” outside the full protection of the Second Amendment “will fundamentally weaken ‘the right of law-abiding, responsible citizens’ to keep and bear arms.”
The critical question presented in this case relates to the third subsidiary question: whether cooling-off laws “place any restrictions on either the ‘keep[ing]’(i.e., possession) or the ‘bear[ing]’ (i.e., carrying) of arms.” Such laws meet this requirement because forced delay on taking possession is “a[]restriction[]” on possession, and the predicate-act canon and property cases provide additional support for this common-sense conclusion.
Or, to put it in slightly less lawyerly language, a waiting period law qualifies as a restriction on the keeping of arms, so it is therefore covered by the Second Amendment’s plain text.
That means that the state of Maine should have had the burden of proving that the waiting period law comports with the tradition of gun ownership and gun regulation in the United States. Instead, the First Circuit’s decided that laws regulating the purchase or acquisition of firearms “do not directly restrict the textual rights protected by the Second Amendment.”
The Tenth Circuit disagrees, and struck down New Mexico’s week-long waiting period as a violation of the Second Amendment. That means there’s a genuine split among the lower courts, which should increase the odds of the Court granting cert in Beckwith.
Maine’s deadline to reply to the cert petition was yesterday, but last week Attorney General Aaron M. Frey waived his right to reply. The Court can still request a response from Frey, though, and given the interest the case has generated among state-level officials and the fact that Beckwith is currently the only waiting period case that the Court could use to resolve the circuit court split, I’m cautiously optimistic that one or more justices will want to hear from the state before they decide whether or not to grant cert.
There really is no evidence to support the idea that waiting periods comport with the plain text of the Second Amendment. Some gun control advocates have argued that at the time of the Founding waiting periods were essentially just part of purchasing a gun, since buyers might have had to wait for a musket to be crafted or imported before they could take possession. That ignores the fact that there were still plenty of firearms already present in the 13 states, and if a gun owner wanted to sell his rifle to a friend, neighbor, or stranger, there were no laws in place in any state requiring him to hold on to his firearm for 72 hours or more just because the legislature thought it was a good idea.
Supporters of waiting periods argue that they can save lives by deterring someone with thoughts of suicide from impulsively purchasing a gun. What those supporters fail to acknowledge, though, is that those same delays can put other people at risk by preventing them from lawfully acquiring a firearm when they have an acute need to protect themselves.
Under the Supreme Court’s Second Amendment jurisprudence, interest-balancing is not allowed anyway, but even if it was I’d argue that these laws are not narrowly tailored to achieve the government’s interest in preventing suicide without imposing substantial burdens on the rights of law-abiding citizens who pose no danger to themselves or others.
There’s simply no good legal argument in support of these broad waiting period laws, and it would be incredibly disappointing if the Supreme Court lets the First Circuit’s decision stand. There will be other opportunities for the justices to address this issue in the future, but we shouldn’t have to wait months or years before they decide the constitutionality of waiting period laws.
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