A three-judge panel of the Tenth U.S. District Court of Appeals has ruled 2-1 that New Mexico’s seven-day waiting period “is likely an unconstitutional burden on the Second Amendment rights of its citizens,” and has reversed a lower court ruling and remanded the case back to the district court “with instructions to enter injunctive relief consistent with this opinion.”
If the ruling stands, it could provide a launchpad for legal actions challenging waiting periods in other states.
The case is known as Ortega, et al. v. Lujan Grisham, et al. It was filed on May 15, 2024.
The majority opinion was authored by Circuit Judge Timothy M. Tymkovich, a George W. Bush appointee, and joined by Circuit Judge Allison Hartwell Eid, a Donald Trump appointee. Judge Scott Milne Matheson, Jr., a Barack Obama appointee, dissented.
Writing for the majority, Judge Tymkovich observed, “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. In this preliminary posture, we conclude that New Mexico’s Waiting Period Act is likely an unconstitutional burden on the Second Amendment rights of its citizens.”
According to Tymkovich’s 38-page ruling, New Mexico adopted the waiting period last year, imposing the seven-day “cooling off” period on nearly all firearm purchases.
“No matter how urgent the need, or how much physical danger a prospective buyer might be in, buyers must wait seven days before New Mexico deems them safe to carry arms,” the judge observed. “Even buyers with previous firearms background checks or security clearances are not eligible for waivers from the prohibition. In short, the law requires no individualized reason to conclude that a prospective consumer is a danger to himself or the community, nor can anyone be excused from the waiting period because of personal danger.”
Several states have waiting periods, justified by proponents to allow time for so-called “expanded background checks” and/or also to allow time for prospective gun buyers to “cool off” in order to prevent spur-of-the-moment criminal acts or suicide. But Second Amendment activists have often expressed misgivings about such waiting periods, and point to the inconsistencies in the length of such periods from state-to-state where they are in effect. In one state, the wait might be three days. For another state, it could be seven days. In California and Washington, for example, the wait is ten days.
Waiting periods are a longtime component of the broader gun control agenda, and some critics believe they are merely designed to discourage people from purchasing firearms. Indeed, at least one of the plaintiffs in this case already owns several other firearms.
In his opinion, Judge Tymkovich noted that historically, state legislatures “have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.”
“New Mexico makes no effort to distinguish the dangerous from the law-abiding,” Judge Tymkovich observed, “instead choosing to ‘broadly restrict arms use by the public generally.’”
Ultimately, the judge explained, “We conclude…that Plaintiffs are entitled to an injunction.”
Writing in his 12-page dissent, Judge Matheson argued, “In short, the law does not serve abusive ends. It does not ‘meaningfully constrain[] the right to keep and bear arms.’… the Act ‘neither prohibits anyone from possessing a gun nor prohibits certain non-purchase gun transfers of ownership,’ but rather imposes a modest delay on commercial acquisition of arms.”
But the majority opinion appears to suggest that what constitutes a “modest delay” to one person may be viewed by another person as a violation of the Second Amendment.
The case was brought last year by New Mexico residents Paul Samuel Ortega, a retired law enforcement officer, and Rebecca Scott. Their case is supported by the Mountain States Legal Foundation and National Rifle Association.
Amicus briefs supporting the waiting period were submitted by the Brady Center to Prevent Gun Violence and the Giffords Law Center to Prevent Gun Violence.
It is too early to tell whether there will be an appeal, either for an en banc hearing before the full Tenth Circuit in Denver, or to the U.S. Supreme Court.
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