A short excerpt from today's long Ortega v. Grisham, by Tenth Circuit Judge Timothy Tymkovich, joined by Judge Allison Eid:
New Mexico enacted a law in 2024 that imposes a categorical seven-day "cooling-off" period for nearly all consumer purchases of a firearm. 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. 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….
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…. Plaintiffs are entitled to an injunction….
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….
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. Temporary closures of churches during COVID-19? Unconstitutional. Roman Cath. Diocese of Brooklyn v. Cuomo (2020) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." If a criminal defendant had to wait thirty days after his arraignment before he could seek legal counsel so that he would not unduly resist his prosecution? Unconstitutional, of course. See Rothgery v. Gillespie Cnty. ("[C]ounsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial."). The Second Amendment is no different.
As a general matter, the government cannot delay the exercise of a right because it believes that citizens might misuse it without sufficient time to reflect beforehand. {To be fair, this instinct has not always borne out. In some cases, "waiting periods have been found to be constitutionally permissible as to other rights" [such as with regard to] … abortions, assisted suicide and sterilization, as well as notice requirements for marriage licenses, demonstrations, or parade permits …. But those examples do not suggest that waiting periods do not burden those rights. Caselaw consistently looks with skepticism at inescapable delays on the exercise of enumerated rights[, with] … cases suggesting that any waiting period and delay must have exceptions for emergencies or special circumstances ….} …
We recently held that some longstanding prohibitions, such as minimum age limits, not only survive Bruen and Rahimi, they also presumptively do not burden the Second Amendment. Still, courts have only partially fleshed out the boundaries of these commercial conditions and qualifications in other Second Amendment challenges, and we acknowledged the lack of fully fleshed out guidance on these "safe harbor" provisions …. But even in this murky territory, the Waiting Period Act falls far short of a presumptively constitutional law. It is not limited to commercial sales, and it does not fit with other known conditions and qualifications in this category….
Outside the presumptively constitutional exceptions, the validity of laws that fall under the Second Amendment's text is determined by history and tradition…. Because the burden is on the government at this stage, we consider the historical examples provided by New Mexico and its experts.
First, we reject the notion that other waiting period laws themselves carve out a historically grounded principle. They are mostly a modern innovation. New Mexico points out that the Waiting Period Act's historical pedigree stretches back to 1923, but that is an oversimplification. True, California imposed the first (one-day) waiting period in that year, intended to give officials time to conduct a background check. A few states followed suit over the next few decades. But those early examples are easily distinguished from this one because they were explicitly tied to the time it took to conduct a background check. Until the 1990s, no waiting period law required a prospective buyer to wait longer than was necessary to conduct a background check….
Second, New Mexico contends that a variety of firearm restrictions are analogous to the Waiting Period Act: intoxication laws; license and permitting regimes; and targeted group bans on firearm carry or possession. New Mexico argues that all three categories indicate that Founding-era governments could limit access to firearms to ensure that those keeping and bearing arms were "responsible and law abiding citizens." True, shall-issue licensing regimes, background checks, and many other barriers to firearms access serve that purpose. But the only way that the Waiting Period Act fits into that principle is if anyone seeking to purchase a firearm can be presumed irresponsible or non-law-abiding, purely by dint of their intention to purchase a firearm. Constitutionally, they cannot….
New Mexico asks us to accept a principle so broad that it is obviously incorrect…. [T]he district court perceived a historical principle justifying prohibitions on sales to the general populace on the grounds that some among them would harm the public. If that principle were accepted, any regulation could be justified. Any class of people could be the subject of a targeted ban, including any age group, demographic, and any geographic area. Any class could be denied access to firearms if the government feared that some among them would harm the public. It is hard to imagine an exception more likely to swallow the rule….
Nothing in the record suggests that the historically understood right to keep and bear arms tolerated universal and indiscriminate burdens on purchasing or acquiring firearms with no way to enjoy the full right. This principle cannot clarify the Second Amendment's scope because the principle itself contradicts the Second Amendment's existence. No meaningful limitation could be placed on the government's power to regulate firearms, disarm the citizenry, or criminalize firearm use if we accepted every regulation that is based on a fear that someone somewhere would likely misuse a gun….
And a short excerpt from Judge Scott Matheson's long dissent:
Under Rocky Mountain Gun Owners v. Polis (10th Cir. 2024), the Waiting Period Act is (1) a presumptively lawful condition or qualification on the commercial sale of arms that (2) is not employed for abusive ends….
[T]he majority says the Act is "not tailored to commercial sales," conceding the Act regulates only the sale and purchase of arms, but noting it also covers certain non-commercial sales while exempting certain commercial sales…. But the Colorado age restriction upheld in RMGO covers and excludes the same types of sales….
RMGO provides a roadmap for the abusive ends analysis…. First, as in RMGO, the Act "sets a narrow, objective, and definite standard that applies uniformly to all potential sellers and buyers, eliminating any possibility for subjective interpretation or exceptions."
Second, the Act seeks to keep guns from those who may act impulsively or illegally, see App., Vol. V at 1031 (explaining the Act's primary purpose is to "prevent[ ] impulsive suicides and homicides"), and is thus "aimed at ensuring guns are held by law-abiding, responsible persons." Consistent with this purpose, the Act exempts from the waiting period concealed handgun license holders, who are required to pass background checks and complete safety training, which belies the majority's criticism that the law "treat[s] all those seeking a firearm as unusually dangerous."
Further, the record "support[s] the legislation's purpose." The district court found that "waiting periods reduce gun homicides by roughly seventeen percent" and "have been shown to decrease suicides." It also found that the Act's waiting period "is likely to save approximately thirty-seven lives per year." Plaintiffs do not challenge these factual findings on appeal.
Third, nearly a dozen states plus the District of Columbia have enacted waiting period laws that apply to some or all firearms.
In short, the law does not serve abusive ends. It does not "meaningfully constrain[ ] the right to keep and bear arms." Like the minimum age requirement upheld in RMGO, 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. And like shall-issue licensing regimes generally, the Act "do[es] not necessarily prevent 'law-abiding, responsible citizens' from exercising their Second Amendment right[s]," but rather is "designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'"
Matthew D. Rowen, Paul D. Clement, Erin E. Murphy, and Kevin Wynosky (Clement & Murphy, PLLC), Michael D. McCoy, D. Sean Nation, and Robert A. Welsh (Mountain States Legal Foundation), Joseph G.S. Greenlee and Erin M. Erhardt (NRA), and Carter B. Harrison IV (Harrison & Hart) represent plaintiffs.
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