California exceeded its legal authority when it opted to delay gun-buyer background checks past the 10-day statutory limit due to Covid-19, firearm enthusiasts assert in an appellate case that questions the state’s intentions to employ its interpretation in the future.

The state, which requires a background check on firearm purchases and transfers, abused a California Department of Justice interpretation of the allowed application turnaround time to delay more than 220,000 purchases, gun buyers told a California Court of Appeal.

“The parties hotly dispute the scope of DOJ’s authority to delay firearm transactions, which is unquestionably a matter of broad public interest,” Mauro Campos, a certified firearms safety instructor, who sued over the delay argued in appellate filings.

The panel will hear oral arguments on Wednesday in San Diego. The appellate court has 90 days to issue a decision.

California, which is appealing the San Diego Superior Court ruling, contends the case was “moot before it was filed, and no exception to mootness applies” as the department long ago dealt with the backlog of background checks.

The trial court ruled the agency lacked authority to delay the transactions for any reason other than under the statute, which permits delays because of the applicant’s mental health, or criminal record, or having already bought a handgun in the previous 30 days.

The lawsuit is separate from a federal case also challenging the 10-day waiting period. And the state appellate case is just one of more than a dozen seeking to invalidate various California’s gun laws. Firearm advocates argue these laws are unconstitutional attempts to prevent lawful purchase and use of guns and ammunition, while the state contends the laws are public safety measures to deal with what it contends is an epidemic of shootings and gun violence.

There are lots of lawsuits “partly because there are a lot of really good laws in California,” Shira Feldman, Brady Center to Prevent Gun Violence director of constitutional law, said Tuesday.

“The only thing unique in California is we’ve got a couple of district court judges who got it right,” said C.D. Michel, an attorney who represents firearm owners. Michel has brought challenges to the state’s law limiting the capacity of gun magazines to under 10 bullets, and on behalf of gun owners suing over the state’s just-enacted law limiting places where people can carry concealed guns.

Bruen‘s Shadow

“Now what’s unique in California is the en banc process and whether or not some of the judges on the Ninth Circuit are bending over backgrounds to water down Bruen,” Michel said Tuesday.

Bruen is the landmark US Supreme Court ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, which limited the restrictions that states can place on where gun owners can take their firearms.

In Bruen, the high court determined that the Second Amendment establishes the right to carry a handgun outside the home, and gave courts a new test to use in adjudicating gun cases. Judges must determine whether firearm regulations are consistent with the “historical tradition” of those laws, from the 18th and 19th centuries, it said.

“This is what things are all about now—the methodology, what is a sufficient historical analogue. That’s the issue since Bruen,” Michel said.

In Federal Court

California on Nov. 13 filed a petition for an en banc hearing in a pair of cases challenging the state’s law banning marketing guns to kids. A three-judge panel of the US Court of Appeals for the Ninth Circuit held the law is unconstitutional.

The appellate court denied the gun and sporting organizations’ emergency request to block enforcement of the law until the rehearing bid is resolved.

The state also filed an en banc petition after a divided appeals court panel last month stayed the large-capacity magazine ban injunction that San Diego federal Judge Roger Benitez issued to block the law enacted in response to mass shootings.

“Among the American tradition of firearm ownership, there is nothing like California’s prohibition on rifles, shotguns, and handguns based on their looks or attributes,” Benitez said in his ruling. “Here, the ‘assault weapon’ prohibition has no historical pedigree and it is extreme.”

At least a half dozen other California gun law challenges are percolating through federal courts in the state, according to the gun owner rights group Firearms Policy Coalition.

States, including California, New York, Illinois, and Connecticut, are enacting “really common sense regulations” that most district courts have said are constitutional, the Brady Center’s Feldman said.

“What we know for sure is that states have that authority because Justice [Brett] Kavanaugh’s concurrence in Bruen, which was joined by Chief Justice [John] Roberts says you can have a variety of gun regulations, that the Second Amendment is not a regulatory straight jacket,” she said.

“The Second Amendment does not prevent all gun regulation,” Feldman said.

Everytown for Gun Safety advocates for gun control measures. Michael Bloomberg is the majority owner of Bloomberg Law’s parent company and serves as a member of Everytown’s advisory board.

Benbrook Law Group PC represents Campos. The California Attorney General’s office represents the state.

The case is Campos v. Bonta, Cal. Ct. App., 4th Dist., No. D081134, oral arguments 11/15/23.