New Mexico’s seven-day waiting period on firearms purchases took a major hit Tuesday when a three-judge panel ruled 2-1 that it is “likely an unconstitutional burden on the Second Amendment.”
The National Rifle Association, which supported the case, is declaring victory.
The case is known as Ortega, et al. v. Lujan Grisham, et al. It was filed on May 15, 2024.
Writing for the majority, Circuit Judge Timothy M. Tymkovich noted in his 38-page decision that, “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.”
Judge Tymkovich is a George W. Bush appointee. He was joined by Circuit Judge Allison Hartwell Eid, a Donald Trump, appointee. Judge Scott Milne Matheson, Jr., a Barack Obama appointee, dissented.
Second Amendment activists are already cheering the ruling, which is likely to be appealed, perhaps to an en banc hearing before the full Tenth Circuit. Whether the case may end up before the Supreme Court would be speculation at this point.
The history of waiting periods—also known as “cooling off” periods—goes back decades. Such delays in the acquisition of firearms have been justified by proponents as a means of preventing spur-of-the-moment violent crimes or suicides,” and are now also supported for allowing more time for “expanded background checks.”
The case was brought last year by New Mexico residents Paul Samuel Ortega, a retired law enforcement officer, and Rebecca Scott, with support from the Mountain States Legal Foundation and National Rifle Association. A lower court upheld the waiting period, but this appeal reversed that ruling and remanded the case back “to the district court, with instructions to enter injunctive relief consistent with this opinion.”
While the ruling does not affect waiting periods in Washington or California, it does signal that the federal courts may be taking a new look at these delays. Both states have 10-day waiting periods, while the wait in other states may be as little as 72 hours or up to seven days. Oregon currently does not have a waiting period, though the gun control lobby wants one. All three coastal states are in the Ninth Circuit.
Judge Tymkovich’s ruling seems to suggest the waiting period is rather arbitrary.
“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 wrote. “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.”
