                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JEFF SILVESTER; BRANDON COMBS;            No. 14-16840
THE CALGUNS FOUNDATION, INC., a
non-profit organization; THE                 D.C. No.
SECOND AMENDMENT FOUNDATION,              1:11-cv-02137-
INC., a non-profit organization,            AWI-SKO
                  Plaintiffs-Appellees,

                  v.                        OPINION

KAMALA D. HARRIS, Attorney
General of the State of California, in
her official capacity,
                 Defendant-Appellant.


     Appeal from the United States District Court
         for the Eastern District of California
   Anthony W. Ishii, Senior District Judge, Presiding

         Argued and Submitted February 9, 2016
               San Francisco, California

                Filed December 14, 2016

  Before: Sidney R. Thomas, Chief Judge, and Mary M.
  Schroeder and Jacqueline H. Nguyen, Circuit Judges.

             Opinion by Judge Schroeder;
          Concurrence by Chief Judge Thomas
2                      SILVESTER V. HARRIS

                            SUMMARY*


              Civil Rights / Second Amendment

    The panel reversed the district court’s bench trial
judgment and remanded for entry of judgment in favor of the
state of California in an action challenging a California law
establishing a 10-day waiting period for all lawful purchases
of guns.

    The panel first stated that this case was a challenge to the
application of the full 10-day waiting period to those
purchasers who have previously purchased a firearm or have
a permit to carry a concealed weapon, and who clear a
background check in less than ten days. The panel held that
the ten-day waiting period is a reasonable safety precaution
for all purchasers of firearms and need not be suspended once
a purchaser has been approved. The panel determined that it
need not decide whether the regulation was sufficiently
longstanding to be presumed lawful. Applying intermediate
scrutiny analysis, the panel held that the law does not violate
plaintiff’s Second Amendment rights because the ten-day
wait is a reasonable precaution for the purchase of a second
or third weapon, as well as for a first purchase.

    Concurring, Chief Judge Thomas agreed entirely with the
majority opinion. He wrote separately because in his view
the challenge to California’s ten-day waiting period could be
resolved at step one of the Second Amendment jurisprudence.
Judge Thomas determined that as a longstanding qualification

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   SILVESTER V. HARRIS                      3

on the commercial sale of arms under District of Columbia v.
Heller, 554 U.S. 570 (2008), a ten-day waiting period was
presumptively lawful. Therefore, it was unnecessary to
proceed to the second step intermediate scrutiny examination
of the law.


                        COUNSEL

Jonathan M. Eisenberg (argued) and Peter H. Chang, Deputy
Attorneys General; Mark R. Beckington, Supervising Deputy
Attorney General; Douglas J. Woods, Senior Assistant
Attorney General; Kamala D. Harris, Attorney General;
Office of the Attorney General, San Francisco, California; for
Defendant-Appellant.

Bradley A. Benbrook (argued) and Stephen M. Duvernay,
Benbrook Law Group PC, Sacramento, California; Donald
E.J. Kilmer, Jr., Law Offices of Donald Kilmer, San Jose,
California; Victor J. Otten, Otten Law PC, Torrance,
California; for Plaintiffs-Appellees.

Anna M. Barvir, Clinton B. Monfort, and C.D. Michel,
Michel & Associates PC, Long Beach, California, for Amici
Curiae California Rifle and Pistol Association and Gun
Owners of California.

Jeremiah L. Morgan, John S. Miles, William J. Olson, Robert
J. Olson, and Herbert W. Titus, William J. Olson P.C.,
Vienna, Virginia; for Amici Curiae Gun Owners of America,
Inc., Gun Owners Foundation, U.S. Justice Foundation, The
Lincoln Institute for Research and Education, The Abraham
Lincoln Foundation for Public Policy Research, Inc., Institute
4                 SILVESTER V. HARRIS

on the Constitution, and Conservative Legal Defense and
Education Fund.

Michael Connelly, Ramona, California, as and for Amicus
Curiae U.S. Justice Foundation.

George M. Lee, Seiler Epstein Ziegler & Applegate LLP, San
Francisco, California; John R. Lott, Jr., Ph.D., Crime
Prevention Research Center, Swarthmore, Pennsylvania; for
Amicus Curiae Crime Prevention Research Center.

Marienne H. Murch, Rebecca A. Jacobs, and Simon J.
Frankel, Covington & Burling LLP, San Francisco,
California, for Amicus Curiae The Law Center to Prevent
Gun Violence.

Jonathan E. Taylor and Deepak Gupta, Gupta Beck PLLC,
Washington, D.C., for Amicus Curiae Everytown for Gun
Safety.

David Skaar and Anthony Basich, Hogan Lovells US LLP,
Los Angeles, California; Jonathan E. Lowry, Brady Center to
Prevent Gun Violence - Legal Action Project, Washington,
D.C.; for Amicus Curiae Brady Center to Prevent Gun
Violence.
                    SILVESTER V. HARRIS                        5

                          OPINION

SCHROEDER, Circuit Judge:

                     INTRODUCTION

   California has extensive laws regulating the sale and
purchase of firearms. The State now appeals the district
court’s judgment in favor of Plaintiffs in their Second
Amendment challenge to the State’s law establishing a 10-
day waiting period for all lawful purchases of guns.

     This case is a challenge to the application of the full 10-
day waiting period to those purchasers who have previously
purchased a firearm or have a permit to carry a concealed
weapon, and who clear a background check in less than ten
days. It is not a blanket challenge to the waiting period itself.
It is not a challenge to the requirement that the California
Bureau of Firearms (“BOF”) approve of the purchase of any
firearm. It is not a claim that persons have been denied
firearms who should have been permitted to purchase them.
Plaintiffs do not seek instant gratification of their desire to
purchase a weapon, but they do seek gratification as soon as
they have passed the BOF background check.

    The district court agreed with Plaintiffs that having to
wait the incremental period between the time of approval of
the purchase and receipt of the weapon violated Plaintiffs’
Second Amendment rights. The court rejected the State’s
contention that a 10-day “cooling off” period was a justifiable
safety precaution for all purchasers of firearms, regardless of
whether they already lawfully possessed a firearm or a permit
to carry one. The court also rejected the State’s argument that
a waiting period, in existence in California in some form for
6                  SILVESTER V. HARRIS

nearly a century, was the type of long accepted safety
regulation considered to be presumptively lawful by the
Supreme Court in District of Columbia v. Heller, 554 U.S.
570 (2008).

    Because we agree with the State that the 10-day waiting
period is a reasonable safety precaution for all purchasers of
firearms and need not be suspended once a purchaser has
been approved, we reverse the district court’s judgment. We
do not need to decide whether the regulation is sufficiently
longstanding to be presumed lawful. Applying intermediate
scrutiny analysis, we hold that the law does not violate the
Second Amendment rights of these Plaintiffs, because the ten
day wait is a reasonable precaution for the purchase of a
second or third weapon, as well as for a first purchase.

     We begin our Second Amendment analysis with the legal
background. It reflects that, beginning with the Supreme
Court’s watershed decision in Heller, federal courts have had
to scrutinize a variety of state and local regulations of
firearms, and that our court, along with others, has developed
a body of law applying intermediate scrutiny to regulations
falling within the scope of the Second Amendment’s
protections.

                LEGAL BACKGROUND

I. The Supreme Court’s Decision in Heller

    The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. The seminal case
interpreting the Second Amendment in this century is Heller,
                    SILVESTER V. HARRIS                      7

where the Supreme Court confronted statutes effectively
prohibiting operable firearms in the home. 554 U.S. at 628.

    In Heller, the plaintiff challenged District of Columbia
statutes that banned the possession of all handguns, and
required that any lawful firearm stored in the home, such as
a hunting rifle, be “disassembled or bound by a trigger lock
at all times, rendering it inoperable.” Id. After conducting a
lengthy historical inquiry into the original meaning of the
Second Amendment, the Court announced for the first time
that the Second Amendment secured an “individual right to
keep and bear arms.” Id. at 595. The Court determined that
the right of self defense in the home is central to the purpose
of the Second Amendment, while cautioning that the right
preserved by the Second Amendment “is not unlimited.” Id.
at 626–28.

    Heller gave us the framework for addressing Second
Amendment challenges. First, Heller evaluated whether the
firearms regulations fell within “the historical understanding
of the scope of the [Second Amendment] right.” Id. at 625.
The Court indicated that determining the scope of the Second
Amendment’s protections requires a textual and historical
analysis of the Amendment. Id. at 576–605.

    The Court also recognized that the Second Amendment
does not preclude certain “longstanding” provisions, id. at
626–27, which it termed “presumptively lawful regulatory
measures,” id. at 627 n.26. The Court provided examples of
such presumptively lawful regulations that it said included,
but were not limited to, “prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
8                   SILVESTER V. HARRIS

qualifications on the commercial sale of arms.”         Id. at
626–27.

    Guided by its historical inquiry, the Court struck down
District of Columbia statutes that banned handgun possession
and required all lawful firearms in homes to be unloaded and
disassembled or locked. Id. at 629–30. The Court rejected
the government’s position that because the Amendment
begins with a reference to the need for a militia, the Second
Amendment protects only the right to bear arms for military
purposes.

    The four dissenting Justices relied on United States v.
Miller, where the Court made reference to the military and
civilian purposes of the Amendment. Id. at 637–38 (Stevens,
J., dissenting) (citing Miller, 307 U.S. 174 (1939)). The
Court there upheld a regulation prohibiting the civilian
possession of short-barreled shotguns. Miller, 307 U.S. at
178. Under the dissent’s reading of Miller, the Second
Amendment “protects the right to keep and bear arms for
certain military purposes, but [] it does not curtail the
Legislature’s power to regulate the non-military use and
ownership of weapons.” Heller, 554 U.S. at 637. The Heller
majority interpreted Miller as limiting the type of weapon
eligible for Second Amendment protection, not as restricting
the Amendment to military purposes. Id. at 622. “Miller
stands only for the proposition that the Second Amendment
right, whatever its nature, extends only to certain types of
weapons.” Id. at 623.

    The core of the Heller analysis is its conclusion that the
Second Amendment protects the right to self defense in the
home. The Court said that the home is “where the need for
defense of self, family, and property is most acute,” and thus,
                    SILVESTER V. HARRIS                      9

the Second Amendment must protect private firearms
ownership. Id. at 628. The Heller Court held that, under any
level of scrutiny applicable to enumerated constitutional
rights, the ban on handgun possession “would fail
constitutional muster.” Id. at 629. Notably, in so doing, the
Court expressly left for future evaluation the precise level of
scrutiny to be applied to laws relating to Second Amendment
rights. Id. at 626–27, 634–35. The Court did, however, reject
a rational basis standard of review, thus signaling that courts
must at least apply intermediate scrutiny. Id. at 628 n.27.

    We therefore turn to our circuit law that has developed
during the eight years since Heller.

II. Ninth Circuit Law Since Heller

   A. The two-step inquiry for Second Amendment cases

    Our court, along with the majority of our sister circuits,
has adopted a two-step inquiry in deciding Second
Amendment cases: first, the court asks whether the
challenged law burdens conduct protected by the Second
Amendment; and if so, the court must then apply the
appropriate level of scrutiny. Our two leading cases in this
circuit are Jackson v. City & County of San Francisco,
746 F.3d 953 (9th Cir. 2014), and United States v. Chovan,
735 F.3d 1127 (9th Cir. 2013). In Chovan, we collected cases
from other circuits utilizing a similar two-step inquiry.
735 F.3d at 1134–37.

    The analysis flows from Heller’s identification of the
Amendment’s core purpose of self defense in the home and
Heller’s charge to the lower courts to evaluate the appropriate
level of review, as well as the scope of the Amendment’s
10                   SILVESTER V. HARRIS

protections. We stressed in Chovan that the Supreme Court
did not define the scope of the Second Amendment
protection, but it “did establish that the individual right
guaranteed by the Amendment is ‘not unlimited.’” Id. at
1133 (quoting Heller, 554 U.S. at 626).

    Under our case law, the court in the first step asks if the
challenged law burdens conduct protected by the Second
Amendment, based on a “historical understanding of the
scope of the right.” Heller, 554 U.S. at 625. Whether the
challenged law falls outside the scope of the Amendment
involves examining whether there is persuasive historical
evidence showing that the regulation does not impinge on the
Second Amendment right as it was historically understood.
Id. Laws restricting conduct that can be traced to the
founding era and are historically understood to fall outside of
the Second Amendment’s scope may be upheld without
further analysis. See Peruta v. Cty. of San Diego, 824 F.3d
919 (9th Cir. 2016) (en banc). A challenged law may also fall
within the limited category of “presumptively lawful
regulatory measures” identified in Heller. Jackson, 746 F.3d
at 960; see also Fyock v. Sunnyvale, 779 F.3d 991, 996–97
(9th Cir. 2015).

    If the regulation is subject to Second Amendment
protection (i.e., the regulation is neither outside the historical
scope of the Second Amendment, nor presumptively lawful),
the court then proceeds to the second step of the inquiry to
determine the appropriate level of scrutiny to apply. Jackson,
746 F.3d at 960. In ascertaining the proper level of scrutiny,
the court must consider: (1) how close the challenged law
comes to the core of the Second Amendment right, and
(2) the severity of the law’s burden on that right. Id. at
960–61.
                    SILVESTER V. HARRIS                      11

    The result is a sliding scale. A law that imposes such a
severe restriction on the fundamental right of self defense of
the home that it amounts to a destruction of the Second
Amendment right is unconstitutional under any level of
scrutiny. Id. at 961. That is what was involved in Heller.
554 U.S. at 628–29. A law that implicates the core of the
Second Amendment right and severely burdens that right
warrants strict scrutiny. See Chovan, 735 F.3d at 1138.
Otherwise, intermediate scrutiny is appropriate. “[I]f a
challenged law does not implicate a core Second Amendment
right, or does not place a substantial burden on the Second
Amendment right,” the court may apply intermediate
scrutiny. Jackson, 746 F.3d at 961.

    We have imported the test for intermediate scrutiny from
First Amendment cases. See id. at 965; Chovan, 735 F.3d
1138–39. To uphold a regulation under intermediate scrutiny,
we have identified two requirements: (1) the government’s
stated objective must be significant, substantial, or important;
and (2) there must be a “reasonable fit” between the
challenged regulation and the asserted objective. Chovan,
735 F.3d at 1139.

   B. Cases applying intermediate scrutiny

    This court has applied intermediate scrutiny in a series of
cases since Heller to uphold various firearms regulations. See
Fyock, 779 F.3d at 1000–01; Jackson, 746 F.3d at 966, 970;
Chovan, 735 F.3d at 1139. The first was Chovan where we
considered a regulation prohibiting domestic violence
misdemeanants from possessing firearms. We held that the
law did not violate the Second Amendment because the
prohibition was substantially related to the important
12                  SILVESTER V. HARRIS

government interest of preventing domestic gun violence.
735 F.3d at 1141.

    Then in Jackson, we affirmed the district court’s denial of
a preliminary injunction in which plaintiffs sought to enjoin
a San Francisco ordinance requiring handguns inside the
home to be stored in locked containers or disabled with a
trigger lock when not being carried on the person. 746 F.3d
at 958. We held that this was appropriately tailored to fit the
city’s interest of reducing the risk of firearm injury and death
in the home, and thus, survived intermediate scrutiny. Id. at
966. We concluded that the regulation did not prevent
citizens from using firearms to defend themselves in the
home, but rather indirectly burdened handgun use by
requiring an individual to retrieve a weapon from a locked
safe or removing a trigger lock. Id. We distinguished that
regulation from the total ban in Heller because it only
burdened the “manner in which persons may exercise their
Second Amendment rights.” Id. at 964 (quoting Chovan,
735 F.3d at 1138).

    Jackson also involved a challenge to a law prohibiting the
sale of hollow-point ammunition. Id. at 967. We applied
intermediate scrutiny and found that the regulation was a
reasonable fit with the objective of reducing the “lethality” of
bullets because it targeted only the sale of a class of bullets
that exacerbates the harmful effect of gun-related injuries. Id.
at 970.

    In Fyock, we affirmed the district court’s denial of a
preliminary injunction to enjoin a city ordinance restricting
possession of large-capacity magazines. 779 F.3d at 994.
We denied the injunction on the ground that the challenge to
the regulation was not likely to succeed on the merits. We
                    SILVESTER V. HARRIS                     13

concluded that the ordinance would likely survive
intermediate scrutiny because the city presented sufficient
evidence to show that the ordinance was substantially related
to the compelling government interest of public safety. Id. at
1000–01.

    While these cases all upheld regulations within the scope
of the Amendment because they did not severely burden the
exercise of rights, this court, very recently, sitting en banc,
looked to whether a regulation was outside the scope of the
Second Amendment. In Peruta, we considered California’s
statutory scheme regulating conceal carry permits. 824 F.3d
at 924. We held that the Second Amendment does not protect
the right to carry a concealed weapon in public. Id. at 939.
Applying an exhaustive historical analysis, we concluded that
the carrying of concealed weapons outside the home had
never been acceptable and was therefore beyond the scope of
the Second Amendment’s protections. Id. We stressed that
Heller put limits on the scope of the Amendment and had
expressly observed that the Second Amendment has not
generally been understood to protect the right to carry
concealed weapons. Id. at 928 (citing Heller, 554 U.S. at
626–27).

   A concurrence by three judges agreed, but additionally
came to an alternative conclusion that if the regulation was
within the scope of the Second Amendment, the regulation
would survive intermediate scrutiny. Id. at 942 (Graber, J.,
concurring). (The majority agreed with this analysis, though
found it unnecessary to reach the issue. Id.)

    Our intermediate scrutiny analysis is in line with that of
other circuits. They have applied similar intermediate
scrutiny to uphold firearms regulations within the scope of
14                  SILVESTER V. HARRIS

the Second Amendment. See Drake v. Filko, 724 F.3d 426
(3d Cir. 2013) (holding that a regulation requiring individuals
seeking a permit to carry a handgun in public was
longstanding and presumptively lawful, and that it withstands
intermediate scrutiny); Woollard v. Gallagher, 712 F.3d 865
(4th Cir. 2013) (applying intermediate scrutiny, upholding a
Maryland statute that required an applicant for a permit to
carry a handgun outside the home to provide a substantial
reason for doing so); NRA v. McCraw, 719 F.3d 338 (5th Cir.
2013) (upholding, under intermediate scrutiny, Texas’s
statutory scheme barring 18-to-20-year-olds from carrying
handguns in public); Kachalsky v. Cty. of Westchester,
701 F.3d 81 (2d Cir. 2012) (applying intermediate scrutiny in
upholding New York legislation that prevented individuals
from obtaining a concealed carry license, except individuals
who demonstrated a special need for self protection); Heller
v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)
(finding a prohibition on assault weapons passed muster
under intermediate scrutiny review); United States v. Yancey,
621 F.3d 681 (7th Cir. 2010) (applying intermediate scrutiny
to uphold a statute prohibiting drug users from firearm
possession).

    There is accordingly near unanimity in the post-Heller
case law that when considering regulations that fall within the
scope of the Second Amendment, intermediate scrutiny is
appropriate. Most circuits also appear to apply a two-step test
similar to ours. The case law in our circuit and our sister
circuits thus clearly favors the application of intermediate
scrutiny in evaluating the constitutionality of firearms
regulations, so long as the regulation burdens to some extent
conduct protected by the Second Amendment. Critical to that
analysis is identifying an important legislative objective and
determining whether the regulation reasonably fits with the
                   SILVESTER V. HARRIS                     15

objective. We therefore turn to the history and operation of
the California law at issue in this case.

       BACKGROUND OF THIS LITIGATION

I. History and Purpose of California’s Waiting Period
   Laws

    California has had some kind of waiting period statute for
firearm purchases continuously since 1923. As the various
statutory provisions evolved, the purposes of the waiting
period have become clearer: to allow sufficient time for law
enforcement to complete a background check, and also to
provide a “cooling off” period (i.e., a period in which
weapons purchasers may reconsider, particularly when an
impulsive act of violence or self harm may be contemplated).
In adopting the most recent provision, enacted in 1996, the
Legislature expressly identified its concern with the
impulsive use of handguns as a threat to public safety.

    California’s first waiting period law (“WPL”) barred
delivery of a pistol, revolver, or concealable firearm on the
day of purchase. This 1923 law also prohibited felons from
owning or possessing a firearm and imposed a corresponding
restriction on selling guns to such persons. Law of June 13,
1923, ch. 339 §§ 2, 10, 1923 Cal. Laws 695, 696. The 1923
law also created a weapon recording system, the Dealer
Record of Sale (“DROS”). The law required dealers to obtain
identifying information about purchasers and mail a form on
the day of the sale to the local police or county clerk to be
recorded. The system continues to this day but in electronic
form.
16                 SILVESTER V. HARRIS

    In 1955, the California Legislature extended the waiting
period to three days, and in 1965, to five days. The
legislative history indicates that the latter change was made
to allow sufficient time for the California Department of
Justice (“DOJ”) and law enforcement to complete a
background check. The 3-day waiting period was not enough
to run an adequate background check. “Five days [was
therefore] suggested as a more useful waiting period.” Letter
from Anthony C. Beilenson, Member, California Assembly,
to Edmund G. Brown, Governor, California (June 30, 1965);
see Letter from Charles A. Barrett, Assistant Attorney
General, to Edmund G. Brown, Governor, California (June
24, 1965). In 1975, the California Legislature extended the
waiting period to fifteen days. The legislative history
indicates that the purpose of this extension was to allow more
time for more extensive background checks. Cal. S. Comm.
on the Judiciary, Assemb. B. 1441, 1975–76 Reg. Sess. (Cal.
1975).

    As the length of the waiting period expanded to permit
more extensive background checks, the applicability of the
law expanded as well. Before 1991, the WPLs applied only
to small arms. In 1991, California expanded the waiting
period to cover all firearms.

    In 1996, the California BOF switched to an electronic
database system, which allowed for faster processing of
background checks. This resulted in the reduction of the
waiting period from fifteen days to the current ten days; the
change was accompanied by a legislative explanation of the
reasons for WPLs with special reference to handguns. The
1996 legislative history spelled out two justifications for
WPLs: “One is the need to allow time for the [California]
Department of Justice to do background checks. Another is
                    SILVESTER V. HARRIS                       17

the desire to provide a ‘cooling off’ period, especially for
handgun sales.” Cal. S. Comm. on Crim. Pro., 17 S. B. 671,
1995–96 Reg. Sess. 2099-0051 (Cal. 1995). The legislature
thus intended to prevent immediate access in order to reduce
impulsive purchases of handguns for violent ends. This is
understandable, since human nature is such that an individual
may not act on violent impulses if provided with a period of
time to calm down.

    The law has remained the same since 1996. Its history
demonstrates that the California Legislature has, since 1923,
required potential purchasers to wait for some period of time
before taking possession of a firearm. The amount of time a
purchaser has had to wait has fluctuated, mainly because of
the nature of the background check process, but the
legislative purpose has always been to allow enough time for
background checks. The Legislature made clear in 1996, that
it was additionally concerned about the impulsive use of
handguns. It thus emphasized that a waiting period also
serves as a cooling-off period.

    The essence of Plaintiffs’ claim is that they are entitled to
possession of guns they purchase as soon as the background
check is completed. It is therefore important to understand
how the California background check system operates. We
turn to that subject.

II. The California Background Check System

    Citizens who want to purchase a firearm (and do not fall
into one of the law’s eighteen exemptions, including law
enforcement) must pass a background check to show that they
do not fall into one of the prohibited classes. The background
check begins with the completion and submission of an
18                  SILVESTER V. HARRIS

application form that the gun dealer electronically submits to
the California DOJ. The form contains information about the
prospective purchaser, the firearm, and the dealership.

    The California DOJ maintains the Consolidated Firearms
Information System (“CFIS”), an automated system that
performs the electronic part of the background check process,
called the Basic Firearms Eligibility Check (“BFEC”): It
processes the application by sending inquiries to other
electronic databases. The BFEC first queries California’s
Department of Motor Vehicles (“DMV”) database, to ensure
the purchaser’s identifying information is valid. Next, the
BFEC checks the Automated Firearms System (“AFS”)
database to determine whether the firearm has been reported
lost or stolen. AFS is a leads database, primarily generated
through DROS and police reports, used by law enforcement
to identify individuals who may possess a firearm.

    If the application passes the DMV and AFS checks, an
eligibility check begins. Under California law, a person can
lawfully purchase only one handgun in a 30-day period. Cal.
Penal Code § 27535. CFIS queries its own records to make
sure that the purchaser has not purchased another handgun in
the prior thirty days. Next, the BFEC checks a series of state
and federal criminal and mental-health databases to confirm
that the purchaser is not prohibited from purchasing firearms
under state or federal law.

    If the application generates any “hits” or “matches” in the
background check process, it is sorted for manual review by
a California DOJ analyst. Approximately 80 percent of
applicants require a manual review. The California DOJ has
the authority to delay the delivery of a firearm for up to thirty
                   SILVESTER V. HARRIS                    19

days in order to complete the background check. See id. at
§ 28220(f).

    If the application passes through each of these steps
without a “hit” showing that the purchaser may be prohibited,
then the application is automatically approved and the
background check is complete. Approximately 20 percent of
applications are automatically approved, and the application
process is generally completed in less than ten days for all
applicants.

III.   Proceedings in District Court

    In December 2011, Plaintiffs, two individuals, Jeff
Silvester and Brandon Combs; and two firearm-rights
organizations, the Calguns Foundation, Inc. and the Second
Amendment Foundation, Inc., initiated the present lawsuit in
federal district court. Plaintiffs challenged the full 10-day
waiting period imposed by California Penal Code §§ 26815
and 27540, as applied to three classes, termed “subsequent
purchasers,” all of whom likely already possessed a gun.

    The first class of subsequent purchasers consisted of
individuals with firearms listed in the AFS database. AFS is
not a gun registry. AFS receives its information from a
variety of sources, including DROS records, voluntary reports
from people who have obtained a firearm, and law
enforcement reports. The database reflects California DOJ’s
best available information about who currently owns a
firearm.

    The second class of subsequent purchasers consisted of
individuals who possess a valid license to carry a concealed
20                  SILVESTER V. HARRIS

weapon (“CCW”). A CCW permit is valid for two years. Id.
at § 26220(a).

    The third class was a subset of the first: it consisted of
individuals identified in AFS who also possess a “certificate
of eligibility” (“COE”), issued by the California DOJ. Such
a certificate confirms a person’s eligibility to lawfully possess
and/or purchase firearms under state and federal law. Id. at
§ 26710; 11 Cal. Code Regs. § 4031(g). A COE is valid for
one year.

    The district court held a 3-day trial that principally
concerned how the California system works. The operation
of the system is not disputed on appeal, although the parties
dispute the reliability of the AFS system. Plaintiffs argue that
AFS is a reliable source for identifying individuals who
possess firearms because law enforcement officers view AFS
to be reliable to identify who already possesses a gun. The
State contends that AFS cannot be relied upon to identify
individuals who own guns because AFS is not a gun registry
but rather a leads database used by law enforcement to
identify individuals who may possess a gun. We do not
regard the dispute to be material because the legal issues can
be decided on the assumption that Plaintiffs are justified in
relying on the accuracy of the system.

    The district court applied intermediate scrutiny since it
found that the full 10-day waiting period burdened, to some
extent, Second Amendment rights. It also recognized that the
State has important interests in thorough background checks
to make sure that firearms stay out of the hands of prohibited
individuals. The court further noted the State’s interest in
providing a cooling-off period in order to hinder impulsive
acts of violence or self injury using firearms.
                    SILVESTER V. HARRIS                       21

    The court held, however, that while the State’s objectives
of public safety and reducing gun violence are legitimate,
those interests were not furthered by enforcing a 10-day
waiting period for subsequent purchasers who pass the
background check in less time. In other words, the court
found that for these Plaintiffs, there was no “reasonable fit”
between the waiting period and the safety objective. The
court’s theory was that if a subsequent purchaser already
owned a gun, then the purchaser could use that gun to commit
impulsive acts of violence or self harm. Thus, the court
reasoned that there was no justification to require subsequent
purchasers to wait beyond a background check approval
before taking possession of a firearm.

    The State had contended that the cooling-off period as
applied to Plaintiffs is reasonably suited to a safety objective;
waiting ten days may deter subsequent purchasers from
buying new weapons that would be better suited for a heinous
use. The district court dismissed the State’s argument. The
court thereby essentially discounted the dangers inherent in
the proliferation of guns, including guns suitable only for use
to injure others, such as Saturday night specials or large-
capacity guns that have been used in mass shootings. The
district court entered judgment for Plaintiffs.

IV.     This Appeal

    The State appeals. It contends that the WPLs, as applied
to Plaintiffs, must be upheld under all three legal theories our
cases have discussed. First, the State argues that the WPLs
fall outside the scope of the Second Amendment because
during the founding era, WPLs would have been accepted and
understood to be permissible. The State alternatively argues
that the WPLs do not violate the Second Amendment because
22                  SILVESTER V. HARRIS

they fall within several categories of “presumptively lawful”
regulations under Heller. Finally, the State contends that the
WPLs survive intermediate scrutiny because they reasonably
fit with the important government interests of public safety
and reducing gun violence. We hold that the State must
prevail under the proper application of intermediate scrutiny
analysis. We assume, without deciding, that the regulation is
within the scope of the Amendment and is not the type of
regulation that must be considered presumptively valid.

                        ANALYSIS

     It may be surprising that there has been no case law since
Heller discussing the validity of firearm WPLs, and that this
is therefore a case of first impression. The issue in this case
is narrow, however, because it concerns whether California’s
10-day wait to take possession of a firearm violates Second
Amendment rights when applied to subsequent purchasers
who pass the background check in less than ten days.

    We apply intermediate scrutiny when a challenged
regulation does not place a substantial burden on Second
Amendment rights. Jackson, 746 F.3d at 961. The burden of
the 10-day waiting period here, requiring an applicant to wait
ten days before taking possession of the firearm, is less than
the burden imposed by contested regulations in other Ninth
Circuit cases applying intermediate scrutiny. See, e.g., Fyock,
779 F.3d 991; Jackson, 746 F.3d 953; Chovan, 735 F.3d
1127. This court has explained that laws which regulate only
the “manner in which persons may exercise their Second
Amendment rights” are less burdensome than those which bar
firearm possession completely. Chovan, 735 F.3d at 1138.
                    SILVESTER V. HARRIS                     23

    The actual effect of the WPLs on Plaintiffs is very small.
The contested application of the regulation to Plaintiffs
simply requires them to wait the incremental portion of the
waiting period that extends beyond completion of the
background check. The regulation does not prevent, restrict,
or place any conditions on how guns are stored or used after
a purchaser takes possession. The WPLs do not approach the
impact of the regulation in Jackson that required firearms to
be stored in locked containers or disabled with a trigger lock.
746 F.3d at 963. The waiting period does not prevent any
individuals from owning a firearm, as did the regulation in
Chovan. 735 F.3d at 1139.

    There is, moreover, nothing new in having to wait for the
delivery of a weapon. Before the age of superstores and
superhighways, most folks could not expect to take
possession of a firearm immediately upon deciding to
purchase one. As a purely practical matter, delivery took
time. Our 18th and 19th century forebears knew nothing
about electronic transmissions. Delays of a week or more
were not the product of governmental regulations, but such
delays had to be routinely accepted as part of doing business.

    It therefore cannot be said that the regulation places a
substantial burden on a Second Amendment right.
Intermediate scrutiny is appropriate. Accordingly, we
proceed to apply the two-step analysis of intermediate
scrutiny that looks first to the government’s objectives in
enacting the regulation and second to whether it is reasonably
suited to achieve those objectives. Jackson, 746 F.3d at 965.

   From the beginning, the waiting period in California has
had the objective of promoting safety and reducing gun
24                  SILVESTER V. HARRIS

violence. The parties agree that these objectives are
important. The first step is undisputedly satisfied.

     The parties dispute, however, whether the WPLs
reasonably fit with the stated objectives. The test is not a
strict one. We have said that “intermediate scrutiny does not
require the least restrictive means of furthering a given end.”
Id. at 969. Instead, it requires only that the law be
“substantially related to the important government interest of
reducing firearm-related deaths and injuries.” Id. at 966. The
district court recognized that some waiting period was
necessary for background checks, but held that the full
waiting period served no further legislative purpose as
applied to subsequent purchasers. We cannot agree. In
enacting the present statute, the Legislature said that the
WPLs “provide a ‘cooling-off’ period, especially for handgun
sales.” The legislation coincided historically with increased
national concern over the prevalence of inexpensive
handguns leading to crime and violence. In fact, the
following year, the Legislature introduced the Handgun
Safety Standard Act of 1997 in response to the proliferation
of cheap handguns, which the California DOJ said, at the
time, were “three times more likely to be associated with
criminal activity than any other type of weapon.” Assemb. B.
488, 1997–98 Reg. Sess. (Cal. 1997).

    The State, in the district court, relied on studies showing
that a cooling-off period may prevent or reduce impulsive
acts of gun violence or self harm. One study confirmed that
firearm purchasers face the greatest risk of suicide
immediately after purchase, but the risk declines after one
week. Another found that WPLs correlate to reductions in
suicides among the elderly. The district court discounted
these studies, saying that the studies did not focus on
                    SILVESTER V. HARRIS                      25

subsequent purchasers. But the studies related to all
purchasers. They confirm the common sense understanding
that urges to commit violent acts or self harm may dissipate
after there has been an opportunity to calm down. This is no
less true for a purchaser who already owns a weapon and
wants another, than it is for a first time purchaser.

    The district court reasoned that a cooling-off period
would not have any deterrent effect on crimes committed by
subsequent purchasers, because if they wanted to commit an
impulsive act of violence, they already had the means to do
so. This assumes that all subsequent purchasers who wish to
purchase a weapon for criminal purposes already have an
operable weapon suitable to do the job.

    The district court’s assumption is not warranted. An
individual who already owns a hunting rifle, for example,
may want to purchase a larger capacity weapon that will do
more damage when fired into a crowd. A 10-day cooling-off
period would serve to discourage such conduct and would
impose no serious burden on the core Second Amendment
right of defense of the home identified in Heller. 554 U.S. at
628.

    The thrust of the Plaintiffs’ argument on appeal is similar.
They contend that once a subsequent purchaser has passed the
background check, and it is determined that there is no reason
why the purchase should be prohibited, then there is no
reason to delay the purchase any further. They therefore
contend that the waiting period is overinclusive and applies
to more people than it should.

   Their position in this regard is very similar to the
argument we rejected in Jackson. We there upheld a
26                  SILVESTER V. HARRIS

regulation requiring handguns to be stored in locked
containers or disabled with a trigger lock when not carried on
the person. Jackson, 764 F.3d at 969. Plaintiffs had argued
that because a principal purpose of the law was to prevent
access to weapons by children and other unintended users, the
law was too broad and should not apply when there was little
risk of unauthorized access, as, for example, when the gun
owner lived alone. Id. at 966.

    We upheld the regulation because the safety interests that
the government sought to protect were broader than
preventing unauthorized access. The interests extended to
reducing suicides and deterring domestic violence on the part
of authorized users. Id. We said, “San Francisco has asserted
important interests that are broader than preventing children
or unauthorized users from using the firearms, including an
interest in preventing firearms from being stolen and in
reducing the number of handgun-related suicides and deadly
domestic violence incidents.” Id.

    The State’s reasons for the WPLs here, like the reasons
for the storage protections in Jackson, are broader than
Plaintiffs are willing to recognize. The waiting period
provides time not only for background checks, but for the
purchaser to reflect on what he or she is doing, and, perhaps,
for second thoughts that might prevent gun violence.

    Thus the waiting period, as applied to these Plaintiffs, and
the safety storage precautions, as applied to the plaintiffs in
Jackson, have a similar effect. Their purpose is to promote
public safety. Their effect is to require individuals to stop
and think before being able to use a firearm.
                    SILVESTER V. HARRIS                     27

    The State is required to show only that the regulation
“promotes a substantial government interest that would be
achieved less effectively absent the regulation.” Fyock,
779 F.3d at 1000 (citation and quotation marks omitted). The
State has established that there is a reasonable fit between
important safety objectives and the application of the WPLs
to Plaintiffs in this case. The waiting period provides time
not only for a background check, but also for a cooling-off
period to deter violence resulting from impulsive purchases
of firearms. The State has met its burden.

                      CONCLUSION

    The judgment of the district court is reversed and the
matter is remanded for the entry of judgment in favor of the
State.

   Costs are awarded to the State.

   REVERSED and REMANDED.



THOMAS, Chief Judge, concurring:

    I agree entirely with, and concur in, the majority opinion.
I write separately, however, because the challenge to
California’s ten-day waiting period can be resolved at step
one of our Second Amendment jurisprudence. As a
longstanding qualification on the commercial sale of arms
under District of Columbia v. Heller, 554 U.S. 570 (2008), a
ten-day waiting period is presumptively lawful. Therefore, it
is unnecessary to proceed to the second step intermediate
scrutiny examination of the law.
28                  SILVESTER V. HARRIS

    Heller and McDonald v. City of Chicago, 561 U.S. 742
(2010), clarified our understanding of the protections and
applicability of the Second Amendment, but left examinations
of specific regulations to the future, noting that the right to
keep and bear arms is “not unlimited.” Heller, 554 U.S. at
595, 626. As the majority explains, we have adopted a two-
step inquiry to analyze Second Amendment challenges under
Heller. United States v. Chovan, 735 F.3d 1127, 1136 (9th
Cir. 2013); Majority Op. 9. At step one, we ask “whether the
challenged law burdens conduct protected by the Second
Amendment,” and if it does, we proceed to step two and
“apply an appropriate level of scrutiny.” Id. “To determine
whether a challenged law falls outside the historical scope of
the Second Amendment, we ask whether the regulation is one
of the presumptively lawful regulatory measures identified in
Heller or whether the record includes persuasive historical
evidence establishing that the regulation at issue imposes
prohibitions that fall outside the historical scope of the
Second Amendment.” Jackson v. City & Cty. of San
Francisco, 746 F.2d 953, 960 (9th Cir. 2014) (citations
omitted). If a regulation qualifies as longstanding and
presumptively lawful at step one, we need go no further.
Jackson, 746 F.3d at 960 (quoting Brown v. Entm’t
Merchants Ass’n, 564 U.S. 786, 792 (2011)).

    As to the step one analysis, Heller specifically identified
a non-exhaustive list of “longstanding prohibitions,” which
can be considered “presumptively lawful regulatory
measures” falling outside the scope of Second Amendment
protection. 554 U.S. at 626, 627 n.26. The examples
identified include “longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing
                         SILVESTER V. HARRIS                              29

conditions and qualifications on the commercial sale of
arms.” Id. at 626–27. Similarly, the right to keep and bear
arms is limited to “the sorts of weapons” that are “in common
use.” Id. at 627–28 (citing United States v. Miller, 307 U.S.
174, 179 (1939)).

    The category of presumptively lawful regulatory
measures at issue here is “laws imposing conditions and
qualifications on the commercial sale of arms.” Id. at 627.
The dictionary definitions of the terms ‘conditions’ and
‘qualifications’ largely reflect their common meaning.
Webster’s first definition of a condition is “[s]omething
established or agreed upon as a requisite to the doing or
taking effect of something else; a stipulation or provision.”
Webster’s Second New International Dictionary, 556 (1959).1
As relevant here, a qualification is “[a] condition precedent
that must be complied with for the attainment of a status, the
perfection of a right, etc., or for admission to an office . . . .”
Id. at 2031.2


    1
       The ninth listed definition pertains specifically to legal contexts and
defines a condition as “[a] provision in a contract, conveyance, grant, or
will, providing that the beginning, vesting, rescission, or a modification,
of an estate or interest in property or of a personal obligation shall depend
upon an uncertain event, which may or may not exist or happen; also, the
event itself.” Webster’s Second New International Dictionary, 556
(1959).
    2
        For reference, the first two definitions of qualification are
reproduced here in their entirety: “1. Act or an instance of qualifying, or
a state or process of being qualified. 2. a That which qualifies; any natural
endowment, or any acquirement, which fits a person for a place, office, or
employment, or to sustain any character; requisite capacity or possession;
also, a requisite or essential of a thing. b A condition precedent that must
be complied with for the attainment of a status, the perfection of a right,
etc., or for admission to an office, employment, dignity, etc.,; as, the
30                      SILVESTER V. HARRIS

    On its face, California’s waiting period law is a condition
or qualification on the sale of guns: It imposes a brief
delay—to permit compliance with background check
requirements and provide a ‘cooling off’ period—as a pre-
requisite to acquiring a gun.3

    Heller also suggested that presumptively lawful
regulations should be longstanding. Here, waiting periods—
which first appeared on the books in California in
1923—constitute a sufficiently longstanding condition or
qualification on the commercial sale of arms to be considered
presumptively lawful. See Law of June 13, 1923, ch. 339,
§§ 2, 10, 1923 Cal. Laws 695, 696.




qualification of citizenship.”    Webster’s Second New International
Dictionary, 2031 (1959).
     3
      Although the constitutionality of waiting periods is an issue of first
impression, in the aftermath of Heller, both our Circuit and our sister
Circuits have concluded that regulatory measures need not be expressly
named in Heller to be considered presumptively lawful. See, e.g., Peruta
v. County of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (en banc)
(holding that there was no Second Amendment right to carry concealed
weapons in public); Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013)
(holding “the requirement that applicants demonstrate a ‘justifiable need’
to publicly carry a handgun for self-defense qualifies as a ‘presumptively
lawful,’ ‘longstanding’ regulation and therefore does not burden conduct
within the scope of the Second Amendment’s guarantee”); Nat’l Rifle
Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 203 (5th Cir. 2012) (holding that burdening “the ability of
18-to-20-year-olds to purchase handguns . . . is consistent with a
longstanding, historical tradition”); United States v. Rene E., 583 F.3d 8,
12 (1st Cir. 2009) (holding that “the existence of a longstanding tradition
of prohibiting juveniles from both receiving and possessing handguns”
places the law at issue in the presumptively lawful category).
                    SILVESTER V. HARRIS                      31

     Prohibitions on felon firearm possession illustrate this
point. Circuits that have considered the question agree “that
longstanding prohibitions on the possession of firearms by
felons are presumptively lawful.” Binderup v. Att’y Gen.,
836 F.3d 336, 347 (3d Cir. 2016); see also United States v.
Bena, 664 F.3d 1180, 1182–84 (8th Cir. 2011). The term
“longstanding” is not restricted to the time of the founding of
the Republic. For example, the “first federal statute
disqualifying felons from possessing firearms was not
enacted until 1938.” United States v. Skoien, 614 F.3d 638,
640 (7th Cir. 2010) (citing Federal Firearms Act of 1938,
ch. 850, § 2(f), 52 Stat. 1250, 1251); see also United States v.
McCane, 573 F.3d 1037, 1048 (10th Cir. 2009) (Tymkovich,
J., concurring) (noting that “the weight of historical evidence
suggests felon dispossession laws are creatures of the
twentieth—rather than the eighteenth—century”) (citation
omitted). Legal limits on firearm ownership by the mentally
ill are also “of 20th Century vintage.” Skoien, 614 F.3d at
641 (citing Gun Control Act of 1968, Pub.L. 90–618, § 102,
82 Stat. 1213, 1220). Extending even further into Heller’s
list of examples, other authorities suggest that during the
founding era, there were “no restrictions on the commercial
sales of firearms as such,” nor were there “bans on guns in
schools [or] government buildings.” Adam Winkler, Heller’s
Catch–22, 56 UCLA L. Rev. 1551, 1563 (2009).

    Thus, “Heller demonstrates that a regulation can be
deemed ‘longstanding’ even if it cannot boast a precise
founding-era analogue.” Nat’l Rifle Ass’n of Am., 700 F.3d
at 196; see also Skoien, 614 F.3d at 641 (“[W]e do take from
Heller the message that exclusions need not mirror limits that
were on the books in 1791.”). We have agreed, noting that
“early twentieth century regulations might nevertheless
demonstrate a history of longstanding regulation if their
32                 SILVESTER V. HARRIS

historical prevalence and significance is properly developed
in the record.” Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th
Cir. 2015).

     Indeed, waiting-period statutes have existed in several
states since the 1920s. See, e.g., Law of June 13, 1923, ch.
339, §§ 2, 10, 1923 Cal. Laws 695, 696; Law of June 2, 1923,
ch. 252, § 7, 1923 Conn. Laws 3707; Law of Mar. 7, 1923,
ch. 266 § 10, 1923 N.D. Laws 379. And as the majority aptly
points out, there is nothing new in having to wait to procure
a firearm. Though delay has not always been associated with
government regulation, the ability to immediately exercise
Second Amendment rights has no foundation in history.
Majority Op. at 23. To find otherwise is to focus too
narrowly on the precise conduct that laws of the founding era
regulated and to oversimplify the founders’ views and the
Court’s views as expressed in Heller. Although the notion of
a computerized background check would have been foreign
to our founding ancestors, we do have clues about what was
considered reasonable at that time. See, e.g., Bena, 664 F.3d
at 1183 (“In the 1760s, Blackstone explained that English
subjects enjoyed a right to have arms for their defense,
‘suitable to their conditions and degree’ and ‘under due
restrictions.’ This right and others, he recounted, were
subject to ‘necessary restraints,’ viewed as ‘gentle and
moderate,’ . . . . Proposals from the Founding period reflect
a similar understanding of the pre-existing right to bear
arms.”) (citing 1 William Blackstone, Commentaries *139,
140).

    Unlike the complete ban on handguns at issue in Heller,
a ten-day waiting period only delays—for a brief, predictable
term—the full exercise of the Second Amendment right to
keep and bear arms. Such minor temporal regulation is not
                    SILVESTER V. HARRIS                      33

without precedent.       See, e.g., Kachalsky v. Cty. of
Westchester, 701 F.3d 81, 84 (2d Cir. 2012) (“By 1785, New
York had enacted laws regulating when and where firearms
could be used, as well as restricting the storage of gun
powder.”) (citing Act of Apr. 22, 1785, ch. 81, 1785 Laws of
N.Y. 152; Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y.
627). Moreover, as it applies to the appellees in this case, the
delay does not even necessarily prevent them from exercising
their right to keep and bear arms because they challenge the
law on the basis that they already own firearms and should
therefore be considered pre-cleared for acquiring more.

    In addition, the imposition of a reasonable waiting period
before the exercise of a constitutional right is not anomalous.
Cf. Skoien, 614 F.3d at 641. The Supreme Court has
permitted waiting periods of varying duration in several other
constitutional contexts, including before obtaining a marriage
license, and permits for gathering to protest or parade.
Eugene Volokh, Implementing the Right to Keep and Bear
Arms for Self-Defense: An Analytical Framework and a
Research Agenda, 56 UCLA L. Rev. 1443, 1538–42 (2009).

    Of course, what is reasonable in one context may not be
reasonable in another. For example, unpredictable political
events may create a need for a permit to gather in a public
space because “timing is of the essence in politics[:] It is
almost impossible to predict the political future; and when an
event occurs, it is often necessary to have one’s voice heard
promptly, if it is to be considered at all.” Shuttlesworth v.
City of Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,
concurring). In contrast, a known ten-day delay in procuring
a firearm is relatively minor. No similar external time line
exists in the gun ownership context, and certainly not for
34                  SILVESTER V. HARRIS

those who already own firearms and are thus already
exercising their Second Amendment rights.

    Thus, just as it was in Peruta, the question here is whether
the regulation in question is outside the scope of the Second
Amendment and thus presumptively lawful. See Peruta v.
Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016). The
answer to that question is yes. In full, California’s reasonable
waiting period is presumptively lawful as a condition or
qualification on the commercial sale of arms, which the
record demonstrates is also a longstanding regulatory
measure. Therefore, I would resolve the inquiry at the first
stage of analysis. If, however, the inquiry proceeded to the
second stage, I agree completely with the majority’s analysis.
