JEFF SILVESTER, ET AL.
v.
XAVIER BECERRA, ATTORNEY GENERAL OF CALIFORNIA.
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The Supreme Court denied a petition for a writ of certiorari, declining to review a Ninth Circuit decision that upheld California's 10-day waiting period for firearm purchases. Justice Thomas, in a dissenting opinion, argued that the Ninth Circuit applied a standard indistinguishable from rational-basis review, failing to afford the Second Amendment the same protection as other constitutional rights.
[1] The Second Amendment protects an enumerated constitutional right, and laws burdening it cannot be subjected to mere rational-basis review.
[2] Intermediate scrutiny requires the government to demonstrate that the harms it recites are real and that the law is a reasonable fit for its stated ends, supported by evi…
Previewing 2 of 7 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the constitutional standard for reviewing laws that burden the Second Amendment.
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Join FLexlaw to unlock all legal intelligencePetitioners challenged California's 10-day waiting period for firearm purchases, arguing it violated the Second Amendment as applied to "subsequent pu…
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Simpson v. State (Fla. 5th DCA 2023)…Cir. 2017), they consulted history to determine the scope of the right, only then to rubber-stamp infringements under a test nominally called “intermediate scrutiny,” but in fact “indistinguishable from rational-basis review.” Silvester v. Becerra, 138 S. Ct. 945, 945 (2018) (Thomas, J., dissenting from denial of certiorari). So great was their deference to legislatures over the Constitution that many allowed their “two- step” method to effectively erase the right to “bear” arms, reducing the Second Amendm…
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United States v. Jimenez-Shilon, 34 F.4th 1042 (11th Cir. 2022)…In the wake of District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court "has not definitively resolved the standard for eval-uating Second Amendment claims." Silvester v. Becerra, 138 S. Ct. 945, 947 (2018) (Thomas, J., dissenting from the denial of certio-rari). Left with that analytical vacuum, many of our sister circuits have adopted the following two-step test: A reviewing court ini-tially "ask[s] if the restricted activity is protected…
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Rogers v. Gurbir Grewal, 140 S. Ct. 1865 (U.S. 2020)…, 670 F.3d 1244, 1285 (C.A.D.C. 2011) ( Heller II ) (Kavanaugh, J., dissenting). But, as I have noted before, many courts have resisted our decisions in Heller and McDonald . See Silvester v. Becerra , 583 U. S. ----, ----, 138 S.Ct. 945, 950-951, 200 L.Ed.2d 293 (2018) (opinion dissenting from denial of certiorari). Instead of following the guidance provided in Heller , these courts minimized that decision's framework. See, e.g. , Gould v. Morgan , 907 F.3d 659, 667 (C.A.1 2018) (concluding that our decis…
Authorities Cited (38 total)
- United States v. United States Gypsum Co., 333 U.S. 364 (U.S. 1948)
- Anderson v. City of Bessemer City, 470 U.S. 564 (U.S. 1985)
- Pullman-Standard v. Swint, 456 U.S. 273 (U.S. 1982)
- Graver Tank & MFG. Co., Inc. v. Linde Air Prods. Co., 339 U.S. 605 (U.S. 1950)
- Brandenburg v. Ohio, 395 U.S. 444 (U.S. 1969)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. 1992)
- City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (U.S. 1983)
- Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307 (U.S. 1993)
- Dist. OF Columbia v. Heller, 554 U.S. 570 (U.S. 2008)
- Maine v. Taylor, 477 U.S. 131 (U.S. 1986)