‘Indiscriminate Dispossession’ – Maine Judge Strikes Down State’s 3-Day Waiting Period for Gun Purchases

Note to self: Don’t piss off District Court Judge Lance E. Walker. Not only will he not take it well, but he won’t mince words when he tells you where you’re wrong.

In a decision handed down today, Judge Walker has ruled that Maine’s three-day waiting period on gun purchases is a clear violation of Mainers’ Second Amendment right to keep and bear arms. Because you can’t keep or bear a gun if you can’t buy one and putting up arbitrary hurdles to doing that is, well, here’s how he put it . . .

Attorney General Frey argues that the act of purchasing or acquiring a firearm was not comprehended by the Founders when they enshrined the right to “keep and bear” arms in the Bill of Rights. … In his view, the Second Amendment only protects one’s ability to keep and bear arms already possessed and does not provide “an unfettered right to immediately acquire them free of any regulation.” 

Though Frey concedes that the Constitution makes inviolate a right to keep and bear arms, he asserts that it does not protect the corollary right to acquire arms, which is a curious construction indeed. It is an interpretation that is not only unsupported by the text of the Constitution but one that makes the core right to keep and bear arms illusory if it is relegated to those arms in circulation at the time of the founding or through sales not subject to a background check. In support, Frey cites, among other authorities, the Heller Court’s construction of “keep and bear” as encompassing having and possessing, which to Frey implies the exclusion of acquiring.

But wait, there’s more. And it’s spectacular.

If a citizen cannot take possession of a firearm then his or her right to possess a firearm or to carry it away is indeed curtailed, even if, as Frey claims, the curtailment is modest. However, the threshold inquiry is whether the Second Amendment covers the conduct curtailed by the Act, not a qualitative assessment of how modest the imposition on the right happens to be. Citizens wishing to purchase a firearm are dispossessed of one for 72 hours exclusively by operation of the Act’s requirement that everyone be subjected to a “cooling off” period, even those who have passed an instant background check at the FFL dealer’s counter. That is indiscriminate dispossession, plain and simple.

Attorney General Frey impliedly concedes the point by suggesting that the Act merely prohibits “immediate” possession through a “commercial transaction,” emphasizing that the infringement is only temporary and presumptively subject to regulation. …

To the extent those arguments made in mitigation are relevant, they may bear on the second prong of the analysis but do not call into question whether as an initial matter the Act impairs conduct presumptively covered by the Second Amendment. Acquiring a firearm is a necessary step in the exercise of keeping and bearing a firearm. Any interpretation to the contrary requires the type of interpretative jui jitsu that would make Kafka blush.

Well okay then. Tell us what you really think, Judge Walker.

As for the regulatory overlay that attends the commercial sale of firearms, precious few individuals make their own firearms. Firearms have always been articles of commerce. There is nothing novel or nefarious about that basic reality that would warrant torturing the concepts of keeping, bearing, or carrying to exclude from their meaning the acquisition or purchase of a firearm. In Heller, the Supreme Court observed that nothing in its holding “should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms,” but it gave no examples of what kind of regulations fall within this particular regulatory safe harbor. 

This might well entail background checks, age restrictions, shop security measures, and the like. It does not automatically extend to a standardless, temporary disarmament measure. The question is, simply, whether the purchase of a firearm is a basic component of the right to keep and bear arms. The Heller Court did not answer the question and all indications in the wake of Heller, Bruen and Rahimi suggest the Supreme Court would view with great skepticism the argument Attorney General Frey advances here.

(paragraph breaks and emphasis added)

Hold on for a minute while we smoke a cigarette after that. You can read the full ruling here or talk amongst yourselves.

We may have just found the Judge Benitez of the east. Maine Attorney General Aaron Frey will surely appeal Judge Walker’s ruling to the First Circuit Court of Appeals, so this isn’t over, but we’re going to enjoy this one while we can.