Posted by Eugene Volokh:
The Right To Keep and Bear Arms in Self-Defense and Waiting Periods:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239130065
In this post and the next two on this chain, I continue blogging
excerpts from my [1]Implementing the Right To Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research Agenda, which is
forthcoming in a few months from the UCLA Law Review. But I
particularly focus on analogies between the right to keep and bear
arms and other constitutional rights, when it comes to waiting
periods, taxes and fees, and government tracking regulations. Such
analogies are often drawn, but usually between the right to bear arms
and just one other right. I try to avoid cherry-picking my favorite
rights to compare with, and instead look to how courts have dealt with
similar questions as to a wide range of rights, including free speech,
voting, abortion, and property rights.
As I had mentioned, the article is quite long, so I thought I�d just
blog some excerpts; if you�re interested in the broader framework the
article discusses (a framework that separates the inquiry into the
scope of the right based on its text, original meaning, and history,
the burden that the restriction imposes on the right, the
reducing-danger arguments for the restriction, and the government�s
proprietary role [if that�s present]), please follow the link. Also,
please remember: Not all unwise laws are unconstitutional laws, even
where constitutional rights are potentially involved.
* * *
Some jurisdictions require a �cooling-off� period before a gun may be
delivered to the purchaser. Others apply this only to handguns. The
rationale for such laws is to prevent impulsive killings or suicides
by people who are angry or despondent and who might calm down after a
few days.
It�s hard to see how handgun-only cooling-off periods will materially
reduce danger of impulsive crime or injury. It�s as easy to commit
suicide with a shotgun as with a handgun, and for a crime of passion a
shotgun will often be equally effective, too. Though it�s not as
concealable as a handgun, and thus is worse for daily carrying or for
inconspicuously hanging around waiting for passersby to rob, it should
be quite sufficient for a crime of passion, where it can be concealed
briefly under a coat or in a bag. All-gun waiting periods might in
principle be effective, if the buyer is an otherwise law-abiding
citizen who wouldn�t just turn to the black market instead. But even
that has not been proven: As with so many �reducing danger� arguments,
the social science evidence on the effectiveness of cooling-off
periods is inconclusive.
At least one state, Maryland, requires an extra background check
before a gun can be picked up, and imposes a seven-day waiting period
for that reason. The federal background check is generally instant,
but can take several days to complete if someone with the same name as
the applicant is on the prohibited list.
Finally, Illinois, Massachusetts, New Jersey, New York, and North
Carolina apparently require up to a month, or in New York�s case up to
six months, for a handgun purchase permit (or, in New Jersey, any
firearm purchase permit) to be cleared. Other states require from two
to fifteen days.
Are these waiting periods substantial burdens on self-defense (and
therefore, under the framework my article proposes, presumptively
unconstitutional)? In one way, they are: A person covered by the
waiting period is entirely unable to defend himself for days, weeks,
or (in New York) months. An attack that requires self-defense can
happen during the waiting period just as easily as it can happen
during other times.
Moreover, in some situations, the attack may be especially likely
during the waiting period: A person�s attempt to buy a gun may be
prompted by a specific threat, a threat which could turn into an
actual attack in a matter of days or hours. If a woman leaves an
abusive husband or boyfriend, who threatens to kill her for leaving,
she may need a gun right away, not 10 days later or 6 months later.
On the other hand, it is certainly the case that being disarmed for
0.1 percent of one�s remaining life (that�s what 14 days ends up
approximately being, for a person of average age) is less of a burden
than being disarmed altogether. And waiting periods have been found to
be constitutionally permissible as to other rights.
I can�t offer here a clear answer to whether waiting periods are
unconstitutional, but I thought I would at least sketch out the
analogy to other rights. The Supreme Court has upheld -- over heated
dissent -- a 24-hour waiting period for abortions, justified by much
the same cooling-off concerns mentioned above. A short-lived Ninth
Circuit decision that recognized a right to assisted suicide said that
�reasonable, though short, waiting periods to prevent rash decisions�
would be constitutional, and the Oregon assisted suicide statute
indeed provides a 15-day waiting period. A waiting period is often
required for sterilization, though there might well be a
constitutional right to undergo sterilization as part of one�s right
to control one�s procreation. In many states it takes from one to five
days to get a marriage license, though I know of no cases considering
whether this violates the right to marry. On the other hand, there are
limits: Even where prisoners and military members are involved -- a
context where the government generally has very broad authority --
lower courts have struck down six-month and one-year waiting periods
before a soldier or an inmate may marry.
The Supreme Court has also held that a state may require people to
register to vote fifty days before the election, for much the same
investigatory reasons that are offered for some background-check-based
waiting periods. Cities are generally allowed to require that
demonstration and parade permit applications be filed some days in
advance, though lower courts have suggested the upper bound might be
three or four days. Lower courts have also suggested that permit
requirements would be impermissible for groups of a few people, who
don�t materially implicate the city�s interests in traffic control or
adequate policing.
And lower courts have also suggested that even if some substantial
advance notice may normally be required for demonstration permits,
there has to be a special exception for spontaneous expression
occasioned by breaking events. This would suggest that a similar
exception might have to be required for handgun permits when the
applicant can point to a specific, recently occurring threat -- such
as the applicant�s leaving an abusive boyfriend who threatened to kill
her if she left. (Cf., e.g., Fla. Stat. Ann. § 790.33(2)(d)(6) (West
2007) (exempting from the waiting period, which would normally be up
to 3 days, �[a]ny individual who has been threatened or whose family
has been threatened with death or bodily injury, provided the
individual may lawfully possess a firearm and provided such threat has
been duly reported to local law enforcement�); Minn. Stat. Ann. §
624.7132 subdiv. 4 (West 2003) (providing that �the chief of police or
sheriff may waive all or a portion of the five business day waiting
period in writing if the chief of police or sheriff finds that the
transferee requires access to a pistol or semiautomatic military-style
assault weapon because of a threat to the life of the transferee or of
any member of the household of the transferee�); Ohio Rev. Code Ann.
§ 2923.1213 (providing for temporary emergency license to carry a
concealed weapon when the applicant provides a sworn statement �that
the [applicant] has reasonable cause to fear a criminal attack upon
the person or a member of the person�s family, such as would justify a
prudent person in going armed,� or other evidence of such a threat);
cf. 18 U.S.C. § 922(s)(1)(B) (exempting transferees from the waiting
period for gun purchases if they stated that they �require[ ] access
to a handgun because of a threat to the life of the transferee or any
member of the households of the transferee�; this was in effect during
the pre-instant-background check era, see 18 U.S.C. § 922(t)).)
These other constitutional rights are not perfect analogies. A
three-day delay in voting, marrying, or demonstrating won�t leave you
unprotected against a deadly attack. Conversely, erroneously
authorizing someone to vote when he�s a convicted felon is less likely
to cause serious harm than erroneously authorizing someone to buy a
gun when he�s a convicted felon but the instant background check has
yielded an inconclusive result. Nonetheless, this catalog of decisions
at least suggests that (1) waiting periods on the exercise of
constitutional rights need not always be seen as unconstitutional, and
(2) courts are and should be willing to decide which waiting periods
are excessive.
References
1. http://www.law.ucla.edu/volokh/2am.pdf
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