By Michael Clements
New Mexico’s seven-day waiting period after the purchase of a gun was ruled unconstitutional by the U.S. Circuit Court of Appeals for the 10th Circuit in a two-to-one decision on Aug. 19.
The 2024 law requires a so-called “cooling off period” of seven days before a buyer can take a legally purchased firearm home. This is in addition to passing a background check and proving they can legally own a firearm under the law.
Plaintiffs Samuel Ortega and Rebecca Scott claimed the waiting period prevented them from taking their legally purchased firearms home, even though they had complied with all state and federal laws.
Defendants are Gov. Michelle Grisham, in her official capacity as governor, and Raul Torrez, in his official capacity as attorney general of the State of New Mexico.
In the majority opinion, Judge Timothy Tymkovich wrote that the lawful acquisition of firearms is an integral part of the right to keep and bear arms. Therefore, “cooling off” periods and other extraneous requirements infringe on that right.
The majority also found that waiting periods have no historical analog in the United States’ historical tradition of firearms regulation.
“Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms. Cooling-off periods do not fit into any historically grounded exceptions to the right to keep and bear arms, and burden conduct within the Second Amendment’s scope,” Tymkovich wrote.
“We also conclude the other preliminary injunction factors are met and that Plaintiffs are entitled to an injunction.”
Grisham issued a statement expressing disappointment at the ruling. She said the plaintiffs mischaracterized the law by saying it applied to all gun sales when there are exceptions, such as a sale to a family member. She stated that eliminating the waiting period would cost lives.
“The evidence is clear––waiting periods prevent impulsive acts of violence and suicide, giving people time to step back and reassess their emotions during moments of crisis,” Grisham wrote. “I’m disappointed that today’s ruling doesn’t take this into account.”
“We are reviewing our legal options in reaction to today’s misguided ruling by the Tenth Circuit Court of Appeals.” In a dissenting opinion, Judge Scott Matheson wrote that the plaintiffs failed to show they were likely to win if the case was taken to a higher court. He wrote that certain requirements, such as waiting periods, don’t infringe on the Second Amendment because they regulate sales and not the firearms themselves.
“The Waiting Period Act establishes a condition or qualification on the commercial sale of arms that does not serve abusive ends,” Matheson wrote.
The National Rifle Association—which helped bring the case—said the law had no foundation under the standard set by the June 2022 U.S. Supreme Court decision in New York State Rifle and Pistol Association v. Bruen.
In that decision, the high court ruled that a law must fit a plain reading of the Second Amendment and have a corresponding law, though not an identical law, from the time of the amendment’s ratification.
“New Mexico’s proffered historical analogues—intoxication laws, licensing regimes, and restrictions that applied only to certain targeted groups—were found insufficient,” the NRA statement reads.
NRA-ILA Executive Director John Commerford said the ruling will extend beyond the state of New Mexico. He said the 10th Circuit decision will cripple a favorite tactic of gun control advocates.
“The 10th Circuit has sided with the NRA and held that radical waiting period laws are indeed unconstitutional. This decision not only impacts gun owners in New Mexico, Colorado, Utah, Wyoming, Kansas, and Oklahoma, but serves as a key piece in dismantling similar gun control laws across the country,” Commerford wrote in a statement after the ruling.
According to the court documents, Rhode Island, Maryland, and New Jersey also have seven-day waiting periods. Colorado, Florida, Illinois, Vermont, and Maine have three-day waiting periods. Maine’s waiting law is on hold while it is the subject of a separate lawsuit.
Three states have a 10-day waiting period: Hawaii, Minnesota, and Washington.
California law requires a 30-day waiting period.
