Tenth Circuit Find’s New Mexico’s 7-Day Waiting Period for Firearms Unconstituitonal

The Tenth Circuit Court of Appeals has halted New Mexico’s seven-day waiting period to buy a firearm, stating in the most unequivocal terms that it is an infringement upon Second Amendment rights.

The August 19, 51-page decision in the case of Ortega v. Grisham was issued by a three-judge panel from the United States Court of Appeals for the Tenth Circuit. The panel consisted of Circuit Judges Tymkovich, Matheson, and Eid, with Judge Matheson dissenting. 

“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,” the majority concluded.

“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,” said NRA-ILA Executive Director John Commerford, in a press statement.

The appeals court reversed the district court’s ruling and remanded (or sent the case back) for consideration. It also granted a preliminary injunction, preventing the law from being enforced. However, the court did not define the scope of the injunction, stating, “Because the district court did not grant any relief, it made no findings about the proper scope of any injunction. We remand so that it may do so now.”

Challenged in this case is the 2024 statute (Stat. § 30-7-7.3) adopted by the New Mexico Legislature that forces a seven-day waiting period for most consumer firearm purchases, requiring that: “[a] waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer.”

It defies logic and common sense that those with criminal intent would subject themselves to the scrutiny of a background check, while such a measure functionally disarms those who are in immediate need of self-defense measures.

The Appeals Court points out the incorrect finding by the lower court, which seems to enlightened readers to simply be a manipulation of words when the intent is clearly read:

After an evidentiary hearing, the district court denied preliminary relief on three grounds. First, it found that the right to “keep and bear” arms did not cover the right to acquire arms. The lower court also presumed that the Heller decision upheld waiting periods, which have been in existence for only a century.

In dismantling those arguments, the Appeals Court surmised the following:

Common sense dictates that the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text. Legal interpretation follows that common sense.

It also addresses the State’s unconstitutional approach of interest-balancing the right, which was dispensed within the Bruen decision:

So, by New Mexico’s illogic, a restriction on firearm sales does not burden the Second Amendment–until it does. That argument provides no limiting principle. It inevitably leads to case-by-case judicial interest balancing. But the Supreme Court and the Constitution reject the notion that a right should be restricted simply because the government believes its interests, on balance, are more important than the individual’s.

Refreshingly, the Court also points out the juxtaposition with how the Second Amendment is often classified as a “second-class right,” even though it carries the same weight within the Constitution:

The burden imposed by a cooling-off period is brought into sharper focus when considered in the context of other Constitutional rights. A carte blanche one-week cooling-off period to publish news stories? Unconstitutional.

It concludes:

In short, regardless of paternalistic intent, waiting periods burden the right to keep and bear arms.

As for the historicity of waiting periods, the court concludes that, “Given the few states in which they have persisted and their duration, waiting period laws cannot satisfy the government’s burden.”

New Mexico has captured headlines for its abusive treatment of Second Amendment rights, with the governor unilaterally suspending concealed or open carry of firearms in 2023.

Anti-civil liberty groups, Brady Center to Prevent Gun Violence and Giffords Law Center to Prevent Gun Violence, were amici curiae in this case.