Ortega v. Lujan Grisham
U.S. Court of Appeals for the Tenth Circuit
Ortega v. Lujan Grisham
Opinion
Appellate Case: 24-2121 Document: 85-1 Date Filed: 08/19/2025 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 19, 2025
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SAMUEL ORTEGA; REBECCA SCOTT,
Plaintiffs - Appellants,
v. No. 24-2121
MICHELLE LUJAN GRISHAM, in her
official capacity as Governor of the State of
New Mexico; RAUL TORREZ, in his
official capacity as Attorney General of the
State of New Mexico,
Defendants - Appellees.
------------------------------
BRADY CENTER TO PREVENT GUN
VIOLENCE; GIFFORDS LAW CENTER
TO PREVENT GUN VIOLENCE,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:24-CV-00471-JB-SCY)
_________________________________
Matthew D. Rowen, Clement & Murphy, PLLC, Alexandria, Virginia (Paul D. Clement,
Erin E. Murphy, and Kevin Wynosky, Clement & Murphy, PLLC, Alexandria, Virginia;
Michael D. McCoy, D. Sean Nation and Robert A. Welsh, Mountain States Legal
Foundation, Lakewood, Colorado; Joseph G.S. Greenlee and Erin M. Erhardt, National
Rifle Association of America, Fairfax, Virginia; and Carter B. Harrison IV, Harrison &
Hart, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellants.
Appellate Case: 24-2121 Document: 85-1 Date Filed: 08/19/2025 Page: 2
Kyle P. Duffy, Deputy General Counsel, Office of Governor Michelle Lujan Grisham,
Santa Fe, New Mexico (Holly Agajanian, Chief General Counsel, Office of Governor
Michelle Lujan Grisham, Santa Fe, New Mexico; and Aletheia Allen, Solicitor General,
Van Snow, Deputy Solicitor General, and Christa Street, Assistant Solicitor General,
New Mexico Department of Justice, Santa Fe, New Mexico, with him on the brief), for
Defendants-Appellees.
Scott L. Winkelman, Crowell & Moring LLP, Washington, D.C.; Nicholas W. Dowd and
Amy M. Pauli, Crowell & Moring LLP, Denver, Colorado; and Harry Cohen, Joshua
Sohn, Luke Taeschler and Emily Strickland, Crowell & Moring LLP, New York, New
York, filed an Amici Curiae Brief of Brady Center to Prevent Gun Violence and Giffords
Law Center to Prevent Gun Violence in Support of Appellees and Affirmance.
_________________________________
Before TYMKOVICH, MATHESON, and EID, Circuit Judges.
_________________________________
TYMKOVICH, Circuit Judge.
_________________________________
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.
Asserting their rights under the Second and Fourteenth Amendments, Samuel
Ortega and Rebecca Scott sued the State of New Mexico to enjoin the Waiting Period
Act, N.M. Stat. § 30-7-7.3. The district court declined to preliminarily enjoin the
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law. It found that a seven-day wait did not infringe on Second Amendment rights
since the right to acquire a firearm does not impede the right to keep or bear a
firearm, and, in any event, the Second Amendment tolerates cooling-off periods.
We disagree, and REVERSE and REMAND. 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. We also
conclude the other preliminary injunction factors are met and that Plaintiffs are
entitled to an injunction.
I. Background
A. Legislative Backdrop
In response to high state-wide rates of gun violence, the New Mexico
Legislature adopted a seven-day waiting period for most consumer firearm purchases.
N.M. Stat. § 30-7-7.3. The statute states: “[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.”
§ 30-7-7.3(A).
The seven-calendar-day waiting period shall include the
period required to conduct a federal instant background
check, . . . if the seven-calendar day waiting period has
expired without the completion of a required federal instant
background check, the seller shall not transfer the firearm to
the buyer until the federal instant background check is
completed.
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Id. If the background check process is not completed quickly, the waiting period can
be extended for up to twenty days, at which point the seller may transfer the firearm
even if the background check has not been completed. Until the waiting period is
over, the firearm must remain with the seller or the licensee performing the
background check, even if the transaction has been completed.
The statute makes it “[u]nlawful” for anyone to transfer “ownership,
possession or physical control of [a] firearm from the seller to the buyer before the
end of the required seven-calendar-day waiting period.” § 30-7-7.3(C). Each party
to an unlawful sale—transferee or transferor—is guilty of a misdemeanor if the
transfer is made before the seven-day waiting period. § 30-7-7.3(D), (G).
Exemptions are made for sales and transfers between two firearm dealers,
buyers who have concealed carry permits, law enforcement purchasers, and
transactions between two law enforcement officers or between immediate family
members. § 30-7-7.3(H)(1)–(5).
The law serves two purposes. First, it seeks to reduce impulsive gun violence
or suicides. Second, it aims to close a perceived loophole in federal law that
sometimes permits a purchaser to acquire a gun without completing a background
check if the process takes more than three days. See 18 U.S.C. § 922(t)(1)(B)(ii),
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(C)(iii). The state legislature adopted the law on February 12, 2024, the Governor of
New Mexico signed it on March 4, 2024, and it became effective May 15, 2024.1
B. Factual History
The same day that the law went into effect, Paul Ortega tried to purchase a
handgun from a New Mexico firearms dealer. Mr. Ortega is a retired law
enforcement officer who already legally owned multiple firearms.
Although Mr. Ortega paid for the handgun and immediately passed a
background check, he was subject to the waiting period and could not get his gun for
seven days. According to the firearms dealer, the only reason he could not
immediately acquire the handgun was the waiting period.
Rebecca Scott similarly tried to purchase a firearm and quickly passed her
background check. She too had to wait out the week only because of the cooling-
off period.
Both Mr. Ortega and Ms. Scott plan to purchase more firearms, and brought
this suit before their waiting periods expired. They sought preliminary and
permanent injunctive relief to enjoin the New Mexico law. They sued the Governor
1
Three other states have seven-day waiting periods: Rhode Island; Maryland;
and New Jersey. Four states have three-day waiting periods: Colorado; Florida;
Illinois; and Vermont (Maine’s three-day waiting period is currently enjoined and the
subject of active litigation). Three states have ten-day waiting periods: Hawaii;
Minnesota; and Washington. And one state, California, imposes a thirty-day waiting
period.
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and Attorney General of New Mexico.2 Both Mr. Ortega and Ms. Scott knew of the
law’s existence and restrictions before it went into effect. But rather than bring a
pre-enforcement challenge, they waited to bring their suit until the law was in effect
and the waiting period was imposed on them. So they knew they would be restricted
by the cooling-off period when they bought their guns.
C. Procedural History
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. Second, it found that the waiting period was a presumptively
constitutional commercial condition on firearm sales, carved out by the Supreme
Court in District of Columbia v. Heller, 554 U.S. 570 (2008). Because waiting
periods have existed for almost a century, and their burdens are supposedly minimal,
Plaintiffs did not overcome the presumption. Third, the court ruled in the alternative
that the waiting period fit within the principles underlying our historical tradition of
regulating firearms. The district court found that historical examples denying
outright the ability to possess firearms for certain demographic categories served as
2
The Governor does not “have a particular duty to enforce the statute in
question and a demonstrated willingness to exercise that duty.” Peterson v.
Martinez, 707 F.3d 1197, 1205(10th Cir. 2013) (cleaned up). So she would ordinarily enjoy Eleventh Amendment immunity.Id.
But she has agreed to waive her sovereign immunity and consented to this suit, only in her official capacity, and only for prospective relief. See MCI Telecomms. Corp. v. Pub. Serv. Comm’n of Utah,216 F.3d 929, 935
(10th Cir. 2000) (“[A] state may waive its sovereign
immunity by consenting to suit in federal court.”).
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an acceptable historical analogue. From these analogues, the court determined that
the Second Amendment’s text permitted waiting periods for broad swathes of society
out of fear that some individuals would misuse their firearms.
The district court also ruled that Plaintiffs did not meet other factors in the test
for injunctive relief. That is, the injury was not irreparable because Plaintiffs owned
other firearms, and the balance of equities and public interest weighed in favor of
reducing gun violence.
Plaintiffs appeal, seeking reversal with instructions to preliminarily enjoin the
Waiting Period Act. They bring both a facial and as-applied challenge, except as to
the law’s provisions that affect buyers whose background checks fail to immediately
clear.
II. Discussion
Modern doctrine on the right to keep and bear arms is shaped in large part by
the Supreme Court’s decision in District of Columbia v. Heller, which recognized an
individual’s Second Amendment right to possess firearms. 554 U.S. 570(2008). But “the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”Id. at 627
.
This case represents the efforts of many states and courts to discern the Second
Amendment’s outer limits.
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A. Preliminary Injunction Standard
We review a district court order denying a preliminary injunction for abuse of
discretion. Little v. Jones, 607 F.3d 1245, 1250(10th Cir. 2010). “An abuse of discretion occurs when the district court commits an error of law or makes clearly erroneous factual findings.” Colorado v. Griswold,99 F.4th 1234
, 1240 (10th Cir. 2024) (quoting Att’y Gen. of Okla. v. Tyson Foods, Inc.,565 F.3d 769, 775
(10th Cir. 2009)). Claims of legal error are reviewed de novo.Id.
A preliminary injunction requested under Federal Rule of Civil Procedure
65(a) is an “extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22(2008); Nken v. Holder,556 U.S. 418, 435
(2009). Plaintiffs seeking an injunction must establish: (1) a substantial likelihood that they will ultimately succeed on the merits of their suit; (2) that they are likely to suffer irreparable harm without preliminary relief; (3) this threatened harm outweighs the harm a preliminary injunction may pose to the opposing party; and, (4) if issued, the injunction will not adversely affect the public interest. Winter,555 U.S. at 20
. When a party seeks an injunction that would change the status quo, rather than to preserve it, it faces a higher burden. Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC,562 F.3d 1067, 1070
(10th Cir. 2009). “In seeking such an injunction, the movant must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Fish v. Kobach,840 F.3d 710, 725
(10th Cir. 2016).
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When a plaintiff is asserting an injury in the form of a violated constitutional
right, we presume that the injury will be irreparable if it exists. See Elrod v. Burns,
427 U.S. 347, 373–74 (1976). The difficulty in calculating or determining adequate monetary damages for a constitutional injury is so well-settled that “the principle collapses the first and second preliminary-injunction factors, equating likelihood of success on the merits with a demonstration of irreparable injury.” Free the Nipple v. City of Fort Collins,916 F.3d 792
(10th Cir. 2019). Similarly, the third and fourth factors “merge” when, as here, the government is the opposing party. Nken,556 U.S. at 435
.
B. Second Amendment Framework
Our Second Amendment analysis begins with the text: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” U.S. CONST. amend. II. This “right to keep
and bear arms is among the ‘fundamental rights necessary to our system of ordered
liberty.’” United States v. Rahimi, 602 U.S. 680, 690(2024) (quoting McDonald v. Chicago,561 U.S. 742, 778
(2010)).
In Heller, the Supreme Court held that the Second Amendment codified a
preexisting “individual right,” and the Court adopted that “original understanding of
the Second Amendment.” 554 U.S. at 570, 626. The right recognized by the Second
Amendment and held by the people today is the same common-law right enjoyed by
Englishmen and colonists. That historic right, however, did not guarantee a “right to
keep and carry any weapon whatsoever in any manner whatsoever and for whatever
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purpose.” Id. at 626. Rather, it is the job of the courts to determine whether modern laws restricting or punishing firearms use come into conflict with that historically understood right. The Supreme Court has explained that the Second Amendment, as historically understood, protected an individual right to possession of a handgun in the home.554 U.S. at 636
. But the Court did “not undertake an exhaustive historical analysis [in that case] of the full scope of the Second Amendment.”Id. at 626
. So, the Court instructed, “nothing in [its] opinion should be taken to cast doubt on longstanding . . . laws imposing conditions and qualifications on the commercial sale of arms.”Id.
at 626–27.
Following Heller, the Supreme Court in New York State Rifle & Pistol Assoc.,
v. Bruen and in United States v. Rahimi cemented the approach to Second
Amendment interpretation by first assessing whether a law implicated the plain text
of the Second Amendment, and then, analyzing “whether the challenged regulation is
consistent with the principles that underpin our regulatory tradition.” Rahimi,
602 U.S. at 692(citing Bruen, 597 U.S. at 26–31). A focus on the historical principles ensconced in our tradition is necessary to “apply faithfully the balance struck by the founding generation to modern circumstances.”Id.
(alterations
omitted) (quoting Bruen, 597 U.S. at 30). Or, as Justice Barrett put it, “[o]riginal
history . . . plays two roles in the Second Amendment context. It elucidates how
contemporaries understood the text—for example, the meaning of the phrase ‘bear
Arms.’ It also plays the more complicated role of determining the scope of the
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pre-existing right that the people enshrined in our fundamental law.” Rahimi,
602 U.S. at 738–39 (Barrett, J., concurring).
Under this framework, we assess the three alternative holdings of the district
court.
1. The Waiting Period Act Burdens Second Amendment Rights
Our first consideration is whether “the Second Amendment’s plain text
covers” the conduct curtailed by the enactment, “as informed by history.” Bruen,
597 U.S. at 17, 19. If it does, then “the Constitution presumptively protects that
conduct.” Id. at 17.
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.
When “a text authorizes a certain act, it implicitly authorizes whatever is a
necessary predicate of that act.” Antonin Scalia & Bryan A. Garner, READING LAW:
THE INTERPRETATION OF LEGAL TEXTS 96, 192–94 (2012) (explaining Predicate-act
canon); see also Luis v. United States, 578 U.S. 5, 26 (2016) (Thomas, J., concurring)
(“Constitutional rights . . . implicitly protect those closely related acts necessary to
their exercise.”). The Constitution has carried such a construction throughout our
nation’s history. See Scalia & Garner, READING LAW, 192 (“[W]here a general
power is conferred or duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other, is also conferred.” (quoting
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Thomas M. Cooley, LEGISLATIVE POWER ON THE CONSTITUTIONAL LIMITATIONS
WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN
UNION 63 (1868))); THE FEDERALIST No. 44, at 285 (James Madison) (Clinton
Rossiter ed., 1961) (“No axiom is more clearly established in law, or in reason, than
that wherever the end is required, the means are authorized; wherever a general
power to do a thing is given, every particular power necessary for doing it, is
included.”).
As paper or a computer is a necessary predicate to the right to print, or the
ability to own property is a necessary predicate of the right to just compensation for a
taking—acquiring, purchasing, and possessing firearms is a necessary predicate to
keeping and bearing them. See Reese v. ATF, 127 F.4th 583, 589–90 (5th Cir. 2025) (“Of course, the words ‘purchase,’ ‘sale,’ or similar terms describing a transaction do not appear in the Second Amendment. But the right to ‘keep and bear arms’ surely implies the right to purchase them.”); Nguyen v. Bonta,140 F.4th 1237
, 1240
(9th Cir. 2025) (“the ability to acquire firearms through purchase without meaningful
constraints [is] protected by the Second Amendment”).3
3
New Mexico points to dictionary definitions of “keep” and “bear” that do not
include acquisition. But dictionary definitions of those terms, in isolation, cannot
denote the preexisting right’s bounds that the text sought to concretize. In re Mallo,
774 F.3d 1313, 1321(10th Cir. 2014). The Second Amendment’s text is not limited to direct prohibitions on possessing or using firearms. It states that the “right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. (emphasis added). One cannot keep or bear arms if one cannot acquire them. That is an infringement, even if it is not a direct prohibition or ban. Accord United States v. Playboy Ent. Grp., Inc.,529 U.S. 803, 812
(2000) (Even if a law “does not impose a
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New Mexico argues, however, that the waiting period law does not implicate
the ability of anyone to “keep and bear arms,” at least not directly. Instead, it argues
that firearm possession is distinct from firearm sales and transfers. According to
New Mexico, the Second Amendment’s plain text does not cover acquiring or
purchasing firearms, especially immediate acquisition of purchased firearms. Yet
New Mexico acknowledges that severe or abusive limitations on acquisition would
burden the Second Amendment, and that the waiting period here survived because the
burden is minimal. 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. Heller, 554 U.S. at
634(“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”). “The very enumeration of the right” removes it from the Judiciary’s “power to decide on a case- by-case basis whether the right is really worth insisting upon.”Id.
New Mexico’s argument that limitations on firearm sales or transfers do not
implicate the Second Amendment’s plain text is wrong, and the district court’s
complete prohibition,” “laws burdening and laws banning speech . . . must satisfy the
same rigorous scrutiny.”).
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engagement in limited means-end scrutiny is also wrong. The district court’s
analysis, crediting what it saw as a minimal burden, circumvented Heller, Bruen, and
Rahimi—landing right back at the “freestanding ‘interest-balancing’ approach” that
those cases explicitly rejected. Id.; Rahimi, 602 U.S. at 711 (Gorsuch, J., concurring)
(“In Bruen, we rejected [the interest-balancing] approach for one guided by
constitutional text and history.”); Bruen, 597 U.S. at 26 (“[J]udicial deference to
legislative interest balancing is understandable . . . it is not deference that the
Constitution demands here. The Second Amendment is the very product of an
interest balancing by the people and it surely elevates above all other interests the
right of law-abiding, responsible citizens to use arms for self-defense.” (internal
quotation marks omitted)).
Another court—also faced with the assertion that keeping and bearing did not
include acquiring when considering a waiting period law post-Bruen/Rahimi—also
rejected the argument. It stated:
If a citizen cannot take possession of a firearm then his or
her right to possess a firearm or to carry it away is indeed
curtailed, even if, as [the State] claims, the curtailment is
modest. However, the threshold inquiry is whether the
Second Amendment covers the conduct curtailed by the Act,
not a qualitative assessment of how modest the imposition
on the right happens to be. . . . That is indiscriminate
dispossession, plain and simple.
Beckwith v. Frey, 766 F. Supp. 3d 123 (D. Me. 2025) (appeal filed). A blanket
waiting period prevents a citizen from possessing a firearm for a flat period and is an
infringement on the right to bear arms. It must be scrutinized as one.
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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. United
States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005) (“A prior restraint is not constitutionally inoffensive merely because it is temporary.”). Temporary closures of churches during COVID-19? Unconstitutional. Roman Cath. Diocese of Brooklyn v. Cuomo,592 U.S. 14
, 19 (2020) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (quoting Elrod v. Burns,427 U.S. 347, 373
(1976))). 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., Tex.,554 U.S. 191, 213
(2008) (“[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. See Bruen, 597 U.S. at 70 (“The constitutional right to bear arms . . . is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” (quoting McDonald,561 U.S. at 780
)).
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. Silvester v. Becerra, 583 U.S. 1139 (2018) (Thomas, J., dissenting from
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denial of cert.) (collecting unconstitutional waiting periods on other rights).4 Our law
rarely generalizes the potential for abuse. It requires an individualized assessment.
In short, regardless of paternalistic intent, waiting periods burden the right to
keep and bear arms.
2. Presumptively Lawful Conditions on Firearm Sales
But Heller also carved out certain laws from the exacting historical scrutiny
that followed in Bruen and Rahimi. Heller declined to examine “longstanding
prohibitions,” including “laws imposing conditions and qualifications on the
commercial sale of arms.” Heller, 554 U.S. at 626–27, n.36. In a footnote, the Court
referred to these laws as “presumptively lawful regulatory measures.” Id.
Those laws “were supported without any explanation of how they would fare
in light of the Second Amendment’s original meaning.” United States v. McCane,
573 F.3d 1037, 1049(10th Cir. 2009) (Tymkovich, J., concurring). This “summary treatment . . . foreclose[d] the possibility of a more sophisticated interpretation.”Id.
Despite this lack of an explanation, despite the passage’s status as dicta, and despite
4
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.”
Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense:
An Analytical Framework, 56 UCLA L. REV. 1433, 1439–40 (2009) (cataloguing
constitutional approval for cooling-off or waiting periods for 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. Id. (collecting cases
suggesting that any waiting period and delay must have exceptions for emergencies
or special circumstances).
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the “possible tension between Heller’s dictum and its underlying holding,” id.
at 1047, these categories have been carried forward and enmeshed into Second
Amendment jurisprudence.
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. Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 119–22
(10th Cir. 2024) (RMGO) (“Because the ‘presumptively lawful regulatory measures’
language, first stated in Heller, has not been abrogated, it remains good law.”).5 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 in RMGO. See
id.6
5
RMGO’s holding that “presumptively lawful” measures are assessed at
Bruen’s first step has not been followed in many other circuits. See e.g.; Zherka v.
Bondi, 140 F.4th 68, 94 (2d Cir. 2025); Lara v. Comm’r Penn. State Police,125 F.4th 428
, 442 (3d Cir. 2025); Range v. Attorney Gen.,124 F.4th 218
, 228–29 (3d Cir. 2024); McCoy v. ATF,140 F.4th 568
, 580 (4th Cir. 2025); Reese, 127 F.4th at 590, n.2; United States v. Knipp,138 F.4th 429
, 434 (6th Cir. 2025); but see B & L Productions, Inc. v. Newsom,104 F.4th 108
, 119 (9th Cir. 2024).
6
The district court granted the Waiting Period Act presumptive
constitutionality because of its characterization of waiting periods as “longstanding.”
In RMGO, we observed that “[i]t may be right that the Supreme Court expressly
created a list of ‘presumptively lawful regulatory measures’ in Heller because they
are ‘longstanding,’ and thus necessarily part of our Nation’s history and tradition, but
none of the Court’s quartet of Second Amendment cases states this explicitly.” Id.
Treating a law as presumptively constitutional based solely on the length of its
pedigree strikes us an unstable foundation for protecting rights. See McCane,
573 F.3d at 1049–50 (Tymkovich, J., concurring). Even if we accepted that premise,
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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.
First, cooling-off periods are not tailored to commercial sales. They are
imposed on many non-commercial transfers, while many commercial transfers are
excluded. Heller carved out “laws imposing conditions and qualifications on the
commercial sales of arms.” 554 U.S. at 627 (emphasis added). But the Waiting
Period Act does not distinguish between commercial and non-commercial. While the
statute refers only to “buyers” and “sellers” and seems to exclude gifts, not every
exchange of a firearm for money is commercial in nature. For example, a collector
selling firearms to a museum collection must wait seven days. If a hobbyist with a
federal firearms license decides to sell a gun to a friend? He must still wait seven
days. A waiting period cannot solely be a qualification on commercial sales if it
applies equally to non-commercial conduct. True, some non-commercial transfers,
such as those between immediate family members, are excluded from the statute.
N.M. Stat. § 30-7-7.3(H)(5). But that small carve out is thin gruel.
the district court mistook what could be considered longstanding. It identified the
earliest waiting period law as enacted in 1923. Other laws like it did not proliferate
for years, and still exist only in a minority of states. On a constitutional scale, even
“innovations of the mid- to late-19th-century come too late to provide insight into the
meaning of [the Constitution in 1787].” Bruen, 597 U.S. at 36–37 (alteration in
original) (quoting Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 312
(2008) (Roberts, C.J., dissenting)). Laws birthed in the 1920s fall short of that
standard by decades.
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Other entries in the list of exceptions reveal that many explicitly commercial
sales are not affected by the waiting period. For instance, a purchaser with a federal
firearms license does not have to wait seven days. § 30-7-7.3(H)(1). As a result,
transactions between manufacturers, distributors, and gun stores—progenitor
commercial firearm sales—will not be subject to the waiting period. Since nearly
every firearm bought by an individual in New Mexico must first be sold to a
distributor with a federal firearm license, there is a least one explicitly commercial
sale exempted for every prospective sale subject to the waiting period. Added to the
exclusion for law enforcement agencies and officers, who often purchase bulk
firearms, at least half of all commercial sales in New Mexico would not be effected
by the Waiting Period Act. See §§ 30-7-7.3(H)(1)–(5).
Thus it cannot be said that the waiting period subjects only commercial sales
to a condition or a qualification. The criteria for what transfers are affected by the
law have nothing to do with the sales’ commercial nature.
Second, the Waiting Period Act does not impose a condition or qualification
like other restrictions considered presumptively constitutional. In Heller, the Court
listed “longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications on
the commercial sale of arms” as a non-exhaustive list of “presumptively lawful
regulatory measures.” Heller, 554 U.S. at 627 n.6. In McDonald v. City of Chicago,
the Court reiterated that “such longstanding regulatory measures” were not
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“imperil[ed]” by the Second Amendment. 561 U.S. at 787. And in Bruen, in an
apparent nod to these categories, the Court noted that “shall-issue” licensing
regimes—under which ordinary citizens presumptively qualify for licenses unless
investigation reveals otherwise—are meant to ensure that purchasers were
“law-abiding responsible citizens.” Bruen, 597 U.S. at 38, n.9. And because they
use “only ‘narrow, objective, and definite standards’” they were not constitutionally
suspect. Id.
But a cooling-off period is not such a condition or qualification. Plaintiffs
argue that it is not a condition because it cannot be met by any action, and it is not a
qualification because it is universally applicable. They are right. A seven-day
waiting period is not a “condition” on a sale any more than the price of a firearm is.
The sale happens regardless, and the waiting period is just an artificial delay on
possession. Condition, BLACK’S LAW DICTIONARY (12th ed. 2024) (“An act or
event, other than a lapse of time, that must exist or occur before a duty to perform
something promised arises.” (emphasis added)). Nor is it a qualification.
Qualification, BLACK’S LAW DICTIONARY (12th ed. 2024) (“[T]he possession of
qualities or properties (such as fitness or capacity) inherently or legally necessary to
make one eligible for a position or office, or to perform a public duty or function.”).
For that would imply that a buyer who has not waited seven days is somehow
presumptively unqualified to purchase a firearm—an obviously unconstitutional
implication. See United States v. Daniels, 101 F.4th 770, 778 (10th Cir. 2024)
(“[I]f we are to take seriously the normative thrust of the Supreme Court’s recent
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decision in [Bruen] then we cannot look with suspicion on citizens presumably
exercising their Second Amendment rights in a lawful way.” (citing Bruen, 597 U.S.
at 70)).
It is not enough that a regulation sometimes affects a commercial sale. A
blanket waiting period is simply not of a kind with the conditions and qualifications
imposed by other presumptively lawful measures. See Bruen, 597 U.S. at 38, n.9
(“only ‘narrow, objective, and definite standards’”); Pena v. Lindley, 898 F.3d 969,
976, 1007 (9th Cir. 2018) (Bybee, J., concurring in part, dissenting in part) (“[T]he
Supreme Court in Heller could not have meant that anything that could be
characterized as a condition and qualification on the commercial sale of firearms is
immune from more searching Second Amendment scrutiny.” (emphases added));
Beckwith, 766 F. Supp. 3d at 131–32 (“[W]hat kind of regulations fall within this
particular regulatory safe harbor . . . might well entail background checks, age
restrictions, shop security measures, and the like. It does not automatically extend to
a standardless, temporary disarmament measure.”). By New Mexico’s logic, adopted
by the dissent, an outright ban on commercial sales would also be a condition or
qualification on commercial sales, and presumptively lawful.
New Mexico points to a concurrence in a Ninth Circuit case for support, which
argued that California’s waiting period “is a condition or qualification on the sale of
guns: It imposes a brief delay—to permit compliance with background check
requirements and provide a ‘cooling-off’ period—as a prerequisite to acquiring a
gun.” Silvester v. Harris, 843 F.3d 816, 830 (9th Cir. 2016) (Thomas, C.J.,
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concurring). But that view never garnered a majority on any court. The majority in
Silvester instead employed intermediate scrutiny under Heller, an approach later
abrogated by Bruen. See Baird v. Bonta, 81 F.4th 1036, 1043 (9th Cir. 2023)
(recognizing abrogation). Rather than help New Mexico, Silvester shows that courts
have consistently held waiting periods impose burdens on the Second Amendment
and are not presumptively constitutional.
New Mexico and the dissent argue that our decision in RMGO forecloses the
conclusion that the Second Amendment is burdened by a waiting period. But we
explicitly declined to define “the full scope of concomitants rights, if any, to ‘keep
and bear.’” RMGO, 121 F.4th at 118. We resolved that case instead by concluding
that limiting firearm sales to those over 21 years old was a presumptively lawful
condition or qualification. Id. The dissent would do the same today. But it does so
without any consideration for what defines a condition or qualification on a
commercial sale. It is content to assume that any law which “regulates only the
‘selling and purchasing [of] firearms’” is presumptively constitutional. Dissent Op.
at 5. That shortcut analysis could prop up laws that lay heavy burdens on the rights
of ordinary citizens, without a glance at whether the supposed condition or
qualification is in any way like others given safe harbor.
In any event, RMGO did not grapple with the full scope of arguments defining
conditions and qualifications that we face here, and declined to reach the issues that
are most pertinent in this case. See RMGO, 121 F.4th 96, 133 (McHugh, J.
concurring) (“[T]he majority offers no guidance for determining where the
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presumption applies in any given case.”); Brief for Plaintiffs-Appellees at 19-20,
RMGO, 121 F.4th 96 (10th Cir. 2024) (arguing age-restriction was not commercial or
limited to sales, but not raising the meaning of condition or qualification). Our
decision today accords with RMGO.
Even with a presumption, New Mexico would not prevail. Just because a law
is presumed constitutional does not mean it is constitutional. It may still be shown to
burden Second Amendment rights. As we show below, waiting periods are neither
longstanding nor widespread practices, and diverge from history and tradition.
Plaintiffs would overcome any presumption of constitutionality.7
3. Fit with Historical Tradition of Firearm Restrictions
Outside the presumptively constitutional exceptions, the validity of laws that
fall under the Second Amendment’s text is determined by history and tradition. In
Bruen and Rahimi, the Supreme Court instructed lower courts to follow an originalist
7
Even if we found the Waiting Period Act to be presumptively lawful, we
could not end our inquiry there. Because the Plaintiffs also argue that the Waiting
Period Act would be put to “abusive ends.” See Bruen, 597 U.S. at 38, n.9
(“[B]ecause any permitting scheme can be put toward abusive ends, we do not rule
out constitutional challenges to shall-issue regimes where, for example, lengthy wait
times in processing license applications or exorbitant fees deny ordinary citizens their
right to public carry.”); RMGO, 121 F.4th at 122 (“We read Bruen’s ‘abusive ends’
limitation to mean that any condition or qualification on the sale or purchase of
firearms, if found to have such abusive ends, negates the presumption that the law or
regulation is lawful.”). A supposed condition or qualification that applies as broadly
as this one, put toward an end that is justified only by assuming that citizens cannot
be trusted with their own rights, is put toward an abusive end. The dissent concludes
otherwise only by confusing who was burdened by the law in RMGO with how
ordinary citizens are burdened by New Mexico’s law. See Dissent Op. at 9, n.6.
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methodology in conducting this inquiry. In doing so, we “examine our ‘historical
tradition of firearm regulation’ to help delineate the contours of the right.” Rahimi,
602 U.S. at 691 (quoting Bruen, 597 U.S. at 17). “[I]f a challenged regulation fits
within that tradition, it is lawful under the Second Amendment.” Id. Because these
laws may infringe on constitutional rights, it is the government’s burden to “justify
its regulation.” Id. To meet this burden, the government must show a “well
established and representative” principle, derived from the history and tradition that
would inform the text’s meaning. Bruen, 597 U.S. at 30.
Modern restrictions must be “relevantly similar” to historical practices in both
the “why” and “how” they regulate firearms. Id. “Why and how the regulation
burdens the right are central to this inquiry.” Rahimi, 602 U.S. at 692. “Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.” Bruen, 597 U.S. at 29 (quoting McDonald,561 U.S. at 767
). Such a principle may be drawn from “historical analogue[s]” to the modern statute, and a “historical twin” is not needed.Id.
The Supreme Court does not expect us to find a “dead ringer,” Rahimi,602 U.S. at 691
, but the state must at least present us with a “ringer.”
“Why do we require those showings? Through them, we seek to honor the fact
that the Second Amendment ‘codified a pre-existing right’ belonging to the American
people, one that carries the same ‘scope’ today that it was ‘understood to have when
the people adopted’ it.” Rahimi, 602 U.S. 709 (Gorsuch, J., concurring) (quoting
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Heller, 554 U.S., at 592, 634–635)). “[W]hen a challenged regulation addresses a
general societal problem that has persisted since the 18th century,” the failure to
identify “a distinctly similar historical regulation addressing that problem is relevant
evidence that the challenged regulation is inconsistent with the Second Amendment.”
Bruen, 597 U.S. at 26. 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. Silvester, 843 F.3d at 824. 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.
Federal law briefly required a universal waiting period during the completion
of a background check from 1993 to 1998. See Brady Handgun Violence Prevention
Act of 1993. But Congress sunsetted that law from the start, and the waiting period
requirement lapsed when the federal government implemented the national instant
background check system in 1998. See Printz v. United States, 521 U.S. 898, 902–04
(1997).
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The first state waiting periods that were untethered to the time that it takes to
pass a background check or complete a certification course did not appear until the
1990s. Silvester v. Harris, 41 F. Supp. 3d 927, 946–47 (E.D. Cal. 2014) (recounting
history). Even now, only about a dozen states impose waiting periods of some kind.
See supra note 1, at 5.
Given the few states in which they have persisted and their duration, waiting
period laws cannot satisfy the government’s burden. Bruen, 597 U.S. at 81–82
(Barrett, J., concurring) (“[T]oday’s decision should not be understood to endorse
freewheeling reliance on historical practice from the mid-to-late 19th century to
establish the original meaning of the Bill of Rights.”). Any “innovations of the mid-
to late-19th-century come too late to provide insight into the meaning of [the
Constitution in 1787].” Bruen, 597 U.S. at 36–37 (alteration in original) (quoting
Sprint Commc’ns Co., 554 U.S. at 312 (Roberts, C.J., dissenting)). Comparing this
history with the Supreme Court’s analysis of other originalist sources, waiting
periods lack a strong historical pedigree. Espinoza v. Montana Dep’t of Revenue,
591 U.S. 464, 482 (2020) (A practice that “arose in the second half of the
19th century . . . cannot by itself establish an early American tradition”).
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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.8
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.” See Bruen, 597 U.S. at 38 n.9
(quoting Heller, 554 U.S. at 635).9 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.
In Bruen, the Court rejected the government’s “attempt to characterize
New York’s proper-cause requirement as a ‘sensitive-place’ law” when “there is no
historical basis for New York to effectively declare the island of Manhattan a
8
New Mexico also argues that a waiting period is no less burdensome than
typical delivery periods in the era before FedEx, online ordering, and modern
shipping methods. That comparison is unpersuasive. Necessary or unavoidable
delays in possession resulting from ordinary physical limitations and private market
forces are not prohibited by the Constitution. Government-erected barriers to
possession, resulting in artificially manufactured delays, are covered by the Second
Amendment’s text.
9
Even though many of these historical examples arose before the Fourteenth
Amendment’s passage (and therefore before state incorporation of the Second
Amendment), neither the experts nor the State’s brief discuss whether these historical
restrictions were subject to a similar protection under state constitutions or common
law. This silence adds to our skepticism of these analogies’ relevance.
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‘sensitive place’ simply because it is crowded and protected generally by the
New York City Police Department.” 597 U.S. at 3. We similarly reject
New Mexico’s attempt to declare the entire population of New Mexico presumptively
dangerous to themselves or others only because they want to acquire firearms.10 In
Bruen’s terms, the Waiting Period Act does not impose a “comparable burden on the
right of armed self-defense” as its supposed historical analogues. Id.
A closer examination into the three categories reveals the differences.11
Intoxication Laws
In the years after ratification, at least twenty states criminalized firearm use or
carry by drunks through various intoxication laws. R. Vol. 1 at 101. And in at least
thirty states, and even in 17th Century England, governments regulated firearm use
and carry by the inebriated. Id. Once the drunk sobered up, he could carry or use a
gun once again. This burdened the Second Amendment rights of individual would-be
10
To say that a desire to purchase a firearm renders one dangerous or
presumptively not law-abiding for a time would also penalize someone for exercising
a constitutional right, which is obviously unconstitutional. Daniels, 101 F.4th at 778
(“[W]e cannot look with suspicion on citizens presumably exercising their Second
Amendment rights in a lawful way.”).
11
Amici Brady Center to Prevent Gun Violence and Giffords Law Center to
Prevent Gun Violence suggest another category of historical analogues: Surety Laws.
Surety laws forced certain dangerous individuals to post a bond in order to possess or
carry firearms, and forfeited their firearms and their bond if they misused their guns.
This analogue is easily distinguishable, because the individuals disarmed by Surety
Laws could not be disarmed without some kind of due process, and were still able to
possess their guns while under suspicion of dangerousness. If the Waiting Period Act
forced purchasers to deposit a bond for their first week of ownership, perhaps the
similarity would stick.
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purchasers, but only for a short time. The goal of these laws, of course, was
preventing unpredictable and dangerous firearm use by the intoxicated. District
courts have recognized the historic acceptance of intoxication laws as permissible
under the Second Amendment. See, e.g., RMGO, 701 F. Supp. 3d at 1144 (D. Colo.
2024); Vermont Fed’n of Sportsmen’s Clubs v. Birmingham, 741 F. Supp. 3d 172
(D. Vt. 2024).
“How” intoxication laws burden Second Amendment Rights is ostensibly
similar to how the Waiting Period Act works. Both burden the Second Amendment
by imposing a temporary inability to acquire firearms. Intoxication laws even go
further than the Waiting Period Act in the burden imposed because they reflect a
Founding-era willingness to prohibit both firearm acquisition and use, while the
Waiting Period Act is limited to acquisition. New Mexico seeks to ground the
analogy in the burdens’ temporary nature: Deriving a principle from that analogy that
the Second Amendment tolerates disarming anyone in a supposed state of
dangerousness.
But New Mexico ignores key distinctions that shatter the analogy. The scope
and underlying justifications for the burdens are vastly different. Intoxication laws
place an individualized burden on intoxicated individuals, which distinguishes those
who “pose a credible threat to the physical safety of others from those who have not.”
Rahimi, 602 U.S. at 700. The Waiting Period Act, however, applies a blanket burden
across all of society, assuming that everyone is dangerous or unstable before they can
exercise their Second Amendment right. While the justification for both laws at the
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highest level of generality is the same—preventing gun crime by dangerous or
unstable people—one need look only one level deeper to see that who New Mexico
treats as dangerous (everyone) is not comparable to who historic intoxication laws
treated as dangerous (intoxicated individuals).
“History is consistent with common sense: it demonstrates that legislatures
have the power to prohibit dangerous people from possessing guns. But that power
extends only to people who are dangerous.” Kanter v. Barr, 919 F.3d 437, 451(7th Cir. 2019) (Barrett, J., dissenting), majority abrogated by Bruen,597 U.S. 1
. New Mexico makes no effort to distinguish the dangerous from the law-abiding, instead choosing to “broadly restrict arms use by the public generally.” See Rahimi,602 U.S. at 698
(noting that history and tradition supported “laws banning the
possession of guns by categories of persons thought by a legislature to present a
special danger of misuse . . . only once a court has found that the defendant
‘represents a credible threat to the physical safety’ of another.”). In other words,
individual or particularized determinations that a person or subcategory of persons
represent a known danger is one thing. But blanket burdens on the public’s right to
keep and bear arms are another.12
Temporal similarity is not enough to carry the day.
12
This also distinguishes the age restriction in RMGO. Like intoxication, an
individual’s age can give rise to particularized concern about their firearm use. New
Mexico’s triggering concern applies to all ordinary citizens seeking to exercise their
Second Amendment rights.
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Permitting and Licensing Regimes
Historic licensing laws—similar to modern shall-issue licensing regimes—
required a person to submit some kind of information or receive some certification to
acquire a gun. They typically applied universally or near-universally. New Mexico’s
experts listed many examples of historic licensing restrictions, including concealed
carry licenses, gunpowder licenses, commercial dealer licenses, and hunting licenses.
These licenses limited access much like “shall-issue” licensing regimes restrict today.
Also like modern licensing regimes, their historical function insured that “law-
abiding, responsible citizens” were the only ones who possessed firearms. Bruen,
597 U.S. at 38 n. 9. But very few of these licensing restrictions applied to all guns,
all people, or all places, much less all three.
It is this distinction in breadth—treating all those seeking a firearm as
unusually dangerous—that sets the cooling-off period apart from all historical
permitting regimes. New Mexico cannot justify a populace-wide burden using only
class-wide foundations. Nowhere in the historical record have universal restrictions
on firearm sales survived originalist scrutiny. “Other point-of-sale restrictions such
as background checks and waiting periods are better characterized as regulations in
support of who may lawfully possess (much less purchase) firearms.” Pena, 898
F.3d at 1009 n.19 (Bybee, J., concurring in part). Whereas this waiting period,
applicable to nearly all individual purchasers and untethered to a background check
or satisfiable condition, is a “when” restriction, not a “who” restriction. Volokh,
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Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical
Framework, 56 UCLA L. REV. at 1444.
Licensing and permitting laws typically require the completion of a course,
certification, background check, or training before a person can acquire a firearm.
But the key to their constitutionality is that they presume a person can qualify for the
license unless proven otherwise. Bruen, 597 U.S. at 38 n.9 (“Because these licensing
regimes do not require applicants to show an atypical need for armed self-defense,
they do not necessarily prevent law-abiding, responsible citizens from exercising
their Second Amendment right to public carry.” (internal quotation marks omitted)).
Bruen found a licensing law that required applicants to show a special need before
they could exercise their rights to be out of step with the historical tradition. Id.
at 38. Likewise, assuming that all people are dangerous if they desire to exercise
their rights unless special circumstances apply is historically out of step.
Group Bans and Restrictions
Easily the least applicable historical analogue is the last category that
New Mexico points to: group bans. These types of bans categorically denied access
to firearms by freedmen or black slaves, Native Americans, and other “disfavored”
ethnic or cultural groups.
No doubt, these types of laws proliferated in Colonial and Founding-era
society. Whether out of misguided cultural beliefs that these groups were prone to
violence, or a more realistic belief that slaves might turn arms against their owners,
most of these laws were justified by concluding that those populations were
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dangerous. And some laid a burden even heavier than what the Waiting Period Act
imposes (though the scope was still narrower, because none was society-wide).
But as with intoxication laws, the justifying principle used to identify who
qualified as dangerous differed from the law before us. Racism, classism, and other
discriminatory biases motivated these targeted laws, not a general fear that all
citizens could not be trusted to exercise their rights responsibly. See William Baude
& Robert Leider, The General-Law Right to Bear Arms, 99 NOTRE DAME L. REV.
1467, 1513 (2024) (“The legal principle governing these examples is that certain
individuals are not part of the political community . . . in whom the right to keep and
bear arms is vested, particularly those in a state of war with the political community
or who would rise up against it if given the opportunity.”). Once again, New Mexico
cannot justify a populace-wide burden using only class-based foundations. See
Nguyen, 2025 WL 1718079, at *22.
And even if these historical practices categorically denying firearm sales to
ethnic or cultural groups established a helpful principle, they would not be proper
comparators. The district court acknowledged that “[m]any founding-era gun
regulations, including the historical analogues discussed by the Court, undoubtably
are repugnant.” Ortega v. Lujan Grisham, 741 F. Supp. 3d 1027, 1093 (D.N.M. 2024). But it recognized that “the Supreme Court has not suggested that courts may analogize only to those regulations that would not be viewed as discriminatory or unconstitutional today.”Id.
That is wrong. See Heller, 554 U.S. at 610–16
(discussing the unconstitutionality of post-Civil War laws disarming Blacks); Bruen,
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597 U.S. at 28 (“[N]ot all history is created equal.”). Relying on these analogues
would commit us to consider “a law trapped in amber”—amber formed in an era
when blatant racism escaped constitutional scrutiny. Rahimi, 602 U.S. at 691.
But proper originalist interpretation requires a comparison between people
enjoying the same sets of rights. Comparing the Second Amendment rights of a
citizen today with the Second Amendment rights of a slave before emancipation and
reconstruction tells us nothing. Just as a comparison between the voting rights of an
adult today and a minor in 1800 tells us nothing. As New Mexico’s own expert
explained, “[t]he chief problem facing African Americans in a racist American
society was not a singular deprivation of gun rights, but the deprivation of all rights.”
R. Vol. 1 at 126 (emphasis added) (citing ROBERT J. SPITZER, THE GUN DILEMMA
11–13 (NY: Oxford University Press, 2023)). The groups New Mexico and the
district court identified did not possess the same rights in the Founding era as more
favored classes (an error corrected by the Thirteenth and Fourteenth Amendments),
so we cannot rely on them to inform our understanding of the right’s coverage today.
See Baude & Leider, The General-Law Right to Bear Arms, at 1513 (“The once-
acceptable idea that a state may adopt more restrictive gun control laws applied only
to certain races based on their peculiar status has been thoroughly abrogated by the
Thirteenth and Fourteenth Amendments.” (internal citations omitted)). It would be a
category error. Originalists—or those analyzing text, history, and tradition—must
take care to consider whether the historical practices brought to their attention
actually speak to a right’s scope.
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*****
New Mexico asks us to accept a principle so broad that it is obviously
incorrect. Recall that the 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.13
For this reason, the burden imposed by New Mexico’s law is simply of a
greater scale than historic sobriety laws and class-wide bans on possession. Nguyen,
13
Although New Mexico has put forth evidence that waiting periods save lives
and prevent impulsive violence, the countervailing injury to the Second Amendment
across the entire state of New Mexico overbears that burden. For, “it is always in the
public interest to prevent the violation of a party’s constitutional rights.” Awad v.
Ziriax, 670 F.3d 1111, 1132(10th Cir. 2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n,23 F.3d 1071
, 1079 (6th Cir. 1994)). And “[w]hen a constitutional right hangs in the balance, . . . ‘even a temporary loss’ usually trumps any harm to the defendant.” Free the Nipple,916 F.3d at 806
(quoting 11A WRIGHT
& MILLER’s FEDERAL PRACTICE & PROCEDURE § 2948.2 & n.10 (3d ed. 2018)).
Therefore, the balance of the equities and public interest favor the Plaintiffs.
The district court concluded the third and fourth factors weighed against the
Plaintiffs. But that was only after holding that the Waiting Period Act did not
implicate or burden Second Amendment rights. Even though the potential to reduce
impulsive gun violence might be true, once we acknowledge that the Waiting Period
Act likely burdens Second Amendment activity, that potential is outweighed. The
balance of the equities and the public interest favor injunctive relief. And the State
can have “no interest in keeping an unconstitutional law on the books.” Id.
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2025 WL 1718079, at *21–23 (“easily” concluding that modern law requiring a blanket wait of thirty days between firearm purchases was not “relevantly similar” to historic examples of laws targeted at “Indians, foreigners, and the intoxicated”). None of those laws imposed a burden on the entire population. They burdened narrower subsets or individuals. And many of those laws contained exceptions or conditions that would allow an otherwise disqualified person to show himself capable of safely possessing firearms. See Range v. Att’y Gen. United States,124 F.4th 218
,
261–63, 265 n.85 (3d Cir. 2024) (Matey, J., concurring) (collecting sources). While
some historic laws resulted in would-be purchasers waiting a short time before
acquiring their firearms, those waits were incidental to other lawful purposes.14
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
14
Distinguishing incidental features of our historic tradition from essential
elements or underlying principles ensures fidelity to the balances struck by the
Constitution’s Framers. See J. Joel Alicea, Bruen was Right, 174 U. PA. L. REV. __,
*35–36 (forthcoming 2025); Darrell A.H. Miller, Text, History, and Tradition: What
the Seventh Amendment Can Teach Us About the Second, 122 YALE L. J. 852, 877–84
(2014).
36
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use if we accepted every regulation that is based on a fear that someone somewhere
would likely misuse a gun.15
C. Scope of Injunctive Relief
Finally, a word regarding the scope of relief sought by the Plaintiffs. The
Plaintiffs request both facial and as-applied injunctive relief.16 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. “It is the general rule, of course,
that a federal appellate court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 119 (1976).
While the parties have fully briefed the issue on appeal, the Supreme Court has
since held that courts are without authority to issue remedies beyond what provides
complete relief to the plaintiffs actually involved in the suit. See Trump v. CASA,
2025 WL 1773631, 606 U.S. ---, slip op. at *15 (June 27, 2025) (remanding so lower
courts may determine the appropriate scope of relief). Because the parties did not
have the aid of this decision when they submitted their briefs, we would have to craft
15
We also find that the constitutional injury to the Plaintiffs is so broad and
clear that they have met their higher burden entitling them to an injunction changing
the status quo. Fish, 840 F.3d at 725.
16
At oral argument, the Plaintiffs conceded that they seek only “limited facial”
relief. They seek to have the entire Waiting Period Act enjoined except as to its
effect on those whose background checks are not cleared within three days. That
particular provision seeks to keep guns out of dangerous individuals’ hands in a way
that is more consistent with historical traditions surrounding background checks and
licensing laws. So the Waiting Period Act’s application to those individuals is not
obviously unconstitutional in the way it is when applied to the Plaintiffs.
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a remedy under the Supreme Court’s new standards sua sponte. See United States v.
Kovach, 208 F.3d 1215, 1220 (10th Cir. 2000) (“Absent extraordinary circumstances,
this court will not consider an issue on appeal that was not decided first in the district
court.”).
The district court should determine the proper scope of relief given our
holding that the law is unconstitutional and the Supreme Court’s recent decision,
with the aid of briefs from the parties.
III. Conclusion
For these reasons, we reverse and remand to the district court, with
instructions to enter injunctive relief consistent with this opinion.
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24-2121, Ortega v. Grisham
MATHESON, Circuit Judge, dissenting.
This court’s recent decision in Rocky Mountain Gun Owners v. Polis (RMGO),
121 F.4th 96(10th Cir. 2024), should constrain this panel to uphold the district court’s denial of a preliminary injunction. Under RMGO, the Appellants have not made a “clear showing” that they are “likely to succeed on the merits” of their claim that the Waiting Period Act violates the Second Amendment. Starbucks Corp. v. McKinney,602 U.S. 339, 346
(2024) (quotations omitted). The Waiting Period Act establishes a condition or
qualification on the commercial sale of arms that does not serve abusive ends. Under
RMGO, it falls outside the Second Amendment. See 121 F.4th at 127-28.
A. The Waiting Period Act
The Waiting Period Act generally prohibits a seller from transferring a firearm to a
buyer before the passage of seven days. A buyer who passes a background check in
fewer than seven days must wait until the seven-day period expires.1 A buyer who has
not passed a background check within seven days must wait until it is complete, except
the Act allows transfer if the background check is not completed within 20 days.
1
Plaintiffs argue that the law is unconstitutional as applied to any buyer who has
passed a background check. Aplt. Reply Br. at 27 & n.3.
Appellate Case: 24-2121 Document: 85-1 Date Filed: 08/19/2025 Page: 40
N.M. Stat. Ann. § 30-7-7.3(A).2 The Act does not apply to state concealed handgun license holders.Id.
§ 30-7-7.3(H).3
B. Legal Background
In District of Columbia v. Heller, 554 U.S. 570(2008), the Supreme Court held unconstitutional a District of Columbia prohibition on the possession of a handgun in one’s home.Id. at 635
. It said that “nothing in [its] opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms,” referring to such measures (and other widely accepted firearm regulations) as “presumptively lawful.”Id. at 626-27
, 626 n.26.
In New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1(2022), the Supreme Court adopted a two-step burden-shifting framework to analyze Second Amendment claims. At step one, the plaintiff must show that “the Second Amendment’s plain text covers” the regulated conduct.Id. at 24
. If the plaintiff meets that burden, at step two the
government must demonstrate that the challenged regulation is “consistent with the
2
Federal law requires a background check for purchases from federally licensed
dealers. 18 U.S.C. § 922(t). A New Mexico state law requires background checks for most other firearms sales.N.M. Stat. Ann. § 30-7-7.1
. Both allow transfer in three
business days if the background check is not completed, but the Waiting Period Act
extends this to 20 days.
3
The waiting period also does not apply to sales to a buyer with a federal firearms
license, to a law enforcement agency, between two certified law enforcement officers,
and between immediate family members. N.M. Stat. Ann. § 30-7-7.3(H).
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Nation’s historical tradition of firearm regulation.” Id. Bruen said nothing about the
“presumptively lawful” regulations identified in Heller.
In RMGO, this court interpreted and applied these precedents to hold that “laws
imposing conditions and qualifications on the sale and purchase of arms do not implicate
the plain text of the Second Amendment.” 121 F.4th at 120. Under Bruen step one, such
regulations are “presumptively lawful” and remain “outside the scope of the [Second]
Amendment’s protections” unless they are “employed for abusive ends.” Id. at 127-28.
RMGO rejected a challenge to a Colorado law that prohibits the sale of a firearm to, or
the purchase of a firearm by, a person under the age of 21. The law does not otherwise
prohibit those under 21 from keeping and bearing arms. Id. at 104-05.
RMGO first determined that the challenged law is “an aged-based condition or
qualification on the sale of arms” that “falls outside of the scope of the Second
Amendment’s right to ‘keep and bear’ arms.” Id. at 119-20. We said the law regulates
the “selling and purchasing of firearms,” and such “commercial restrictions” are
presumptively lawful. Id. at 120 (quoting B & L Prods., Inc. v. Newsom, 104 F.4th 108, 119 (9th Cir. 2024)). We rejected the argument that commercial restrictions are presumptively lawful only if the government can satisfy the Bruen step two historical burden.Id. at 120-21
(holding commercial restrictions are presumptively constitutional regardless of whether the government can prove a type of regulation is “longstanding”). Instead, we upheld the law without “proceed[ing] beyond Bruen step one.”Id. at 120
.
RMGO next held the challenged law does not serve abusive ends, noting that “a
minimum age requirement of 21 is a nondiscretionary condition or qualification on the
3
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commercial sale of arms aimed at ensuring guns are held by law-abiding, responsible
citizens.” Id. at 122. The law sets “a narrow, objective, and definite standard that applies uniformly to all potential sellers and buyers, eliminating any possibility for subjective interpretation or exceptions,” and some minimum age requirement had been adopted by “the federal government, almost all 50 states, and the District of Columbia.”Id. at 123
. We also found relevant Colorado’s argument that the challenged law “neither prohibits anyone from possessing a gun nor prohibits certain non-purchase gun transfers of ownership.”Id. at 122
.
Continuing to address the abusive-ends issue, we asked whether setting the age
threshold at 21 was “arbitrary or improper, in order to determine whether the statute
serves legitimate purposes or is being put to abusive ends.” Id. at 124. For four reasons, we found the law serves the legitimate purpose of ensuring that “those who ‘keep and bear’ arms in Colorado are, in fact, law-abiding, responsible persons.”Id. at 124-27
. First, a significant number of jurisdictions (at least 20) had made the same choice as Colorado (setting the minimum purchase age at 21).Id. at 124
. Second, Justice Alito “strongly alluded to the constitutionality of a minimum purchase age of 21” when he noted in his Bruen concurrence that federal law bars the sale of a handgun to anyone under 21.Id.
Third, “the minimum age for firearm purchases need not rise or fall entirely with the age at which most states currently set as the age of majority.”Id. at 126
. Fourth, Colorado presented compelling scientific evidence that setting the age threshold at 21 “is designed to ensure purchasers are law-abiding and responsible.”Id.
This
evidence demonstrated that the law would “likely reduce the numbers of firearm
4
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homicides, nonhomicide violent crimes, suicides, and accidental firearm injuries.” Id.
at 127 (quotations omitted).
C. Analysis
Under RMGO, 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.
Condition or Qualification on Sale
The Waiting Period Act imposes a condition or qualification that no firearm sale
may be completed in fewer than seven days. It regulates only the “selling and purchasing
[of] firearms.” RMGO, 121 F.4th at 120. Thus, under RMGO, the Act is presumptively
constitutional. See id. at 118 n.4, 120 (explaining that “the conduct at issue” was “sale
and purchase” and that “the prohibition on conduct contained within [the Colorado law]
does not require us to proceed beyond Bruen step one”). The majority’s arguments to the
contrary are not persuasive and effectively sidestep RMGO.
First, the majority says this dissent fails to give “any consideration” to “what
defines a condition or qualification on a commercial sale.” Maj. Op. at 22. To the
contrary, the dissent considers RMGO’s holding that the Colorado age restriction is a
condition or qualification on commercial sale to determine whether the New Mexico
waiting period is as well.
Second, the majority says the dissent merely “assume[s]” that any law regulating
only sale and purchase is presumptively constitutional. Id. But rather than “assume,” the
dissent follows and applies RMGO, which determined the age restriction law is a
presumptively lawful condition or qualification on commercial sale. The age law
5
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regulates only sale and purchase, does not prevent anyone from possessing or carrying
guns acquired through non-sale means, and does not merely delay but rather prohibits
underage people from buying firearms. See RMGO, 121 F.4th at 104-05. The waiting
period is similar in all material respects.
Third, the majority argues the dissent’s “shortcut analysis could prop up laws that
lay heavy burdens on the rights of ordinary citizens,” Maj. Op. at 22, including even a
law banning all firearm sales, id. at 21. Again, the dissent follows RMGO and does not
trigger this overstated concern. The dissent’s analysis is RMGO’s analysis. Banning all
firearm sales is a far cry from a seven-day waiting period or a minimum-age law and
plainly would impose more than a mere condition or qualification on sale because there
would be no sales. Also, a ban would surely serve abusive ends and therefore could be
upheld only under Bruen step two.
Fourth, the majority says the Act is “not tailored to commercial sales,”4 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. Id. at 18. For example,
the majority says the waiting period applies to certain “non-commercial” sales, such as a
hobbyist who wishes to sell a gun to a friend or a collector who wishes to sell to a
4
Plaintiffs have not argued that the Waiting Period Act is “not tailored to
commercial sales.” Maj. Op. at 18. We ordinarily decline to consider arguments for
reversing a district court when the appellant fails to raise them. See, e.g., Tachias v.
Sanders, 130 F.4th 836, 843-44 (10th Cir. 2025).
6
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museum, but does not apply to certain “commercial” sales, such as sales made to law
enforcement officials or federal firearms licensees. Id. at 18-19.
But the Colorado age restriction upheld in RMGO covers and excludes the same
types of sales. The majority’s hobbyist would break the law if the friend were under 21,
see Colo. Rev. Stat. § 18-12-112(e);id.
§ 18-12-112.5(1)(a.3), and the age restriction contains no carve-out for transactions between collectors, see RMGO, 121 F.4th at 105 (listing the exceptions). On the flip side, the Colorado law exempts sales to law enforcement,Colo. Rev. Stat. § 18-12-112
(g)(I), (II);id.
§ 18-12-112.5(1)(a.5)(I), (II), and does not apply to federal firearms licensees because a person must be 21 years old to hold such a license,18 U.S.C. § 923
(d)(1)(A).
Fifth, the majority asserts the Act “is not a condition because it cannot be met by
any action, and it is not a qualification because it is universally applicable.” Maj. Op.
at 20. But the Colorado law upheld in RMGO shares those characteristics. A person
under 21 cannot meet an age restriction’s requirement “by any action” and simply must
wait to turn 21, just as a purchaser must wait seven days. And the age restriction is
similarly universally applicable—no one under 21 and subject to the law can buy a gun,
just as no one subject to the waiting period can buy a gun without waiting seven days.5
5
Plaintiffs and others could have acted to avoid the waiting period by obtaining a
concealed handgun license in the two months between the Act’s enactment and its
effective date. See H.R. 129, 56th Leg., 2d Reg. Sess. (N.M. 2024) (Act signed on
March 4, 2024; effective date of May 15, 2024); see Bruen, 597 U.S. at 13 n.1, 38 n.9
(explaining how “shall-issue” licensing regimes like New Mexico’s “are designed to
ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding,
responsible citizens’” (quoting Heller, 554 U.S. at 635)). An application for a concealed
7
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Sixth, the majority contends RMGO does not control because it “did not grapple
with the full scope of arguments defining conditions and qualifications that we face
here.” Maj. Op. at 22. But the RMGO plaintiffs argued that the age law is not “a
commercial regulation of the sort contemplated by Heller” because it “prohibits
non-commercial as well as commercial sales.” Brief of Plaintiffs-Appellees at 19,
RMGO, 121 F.4th 96(No. 23-1251). And the State of Colorado argued the law is a condition or qualification on sale because it regulates only the sale and purchase of firearms and does not prohibit anyone from possessing a gun or from engaging in non-sale transfers. Appellant’s Brief at 37-38, RMGO,121 F.4th 96
(No. 23-1251); see also Appellant’s Reply Brief at 15, RMGO,121 F.4th 96
(No. 23-1251) (“Heller did
not say that ‘regulations on commercial dealers’ are longstanding, but conditions on the
sale transaction itself.”). RMGO agreed with Colorado. 121 F.4th at 120.
In any event, RMGO’s holding “is the law of this Circuit regardless of what might
have happened had other arguments been made to the panel that decided the issue first.”
United States v. Baker, 49 F.4th 1348, 1358 (10th Cir. 2022) (emphasis removed) (quoting Thompson v. Weyerhaeuser Co.,582 F.3d 1125, 1130
(10th Cir. 2009)).
* * * *
handgun license must be approved or denied within 30 days of the completion of a
background check. N.M. Stat. Ann. § 29-19-6(A).
8
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Under RMGO, the Waiting Period Act imposes a condition or qualification on
commercial arms sales and is presumptively constitutional.6
Abusive Ends
The Waiting Period Act is constitutional under RMGO unless it serves abusive
ends. RMGO, 121 F.4th at 127-28. RMGO did not decide which party bears the burden
on this question. Id. at 122 n.8. Because conditions and qualifications on commercial
sale are presumptively constitutional under Bruen step one, Plaintiffs should bear the
6
The majority states that “the right to bear arms requires a right to acquire arms.”
Maj. Op. at 11. Although “[t]he right to ‘keep and bear’ can implicate the right to
purchase,” McRorey v. Garland, 99 F.4th 831, 838 (5th Cir. 2024), if a right to acquire were unlimited, it would swallow Heller’s dictum that “imposing conditions and qualifications on the commercial sale of arms” is “presumptively lawful,” Heller,554 U.S. at 626-27
, 627 n.26; see also RMGO, 121 F.4th at 120 (holding “laws imposing conditions and qualifications on the sale and purchase of arms do not implicate the plain text of the Second Amendment”). And it would make background checks and licensing requirements constitutionally suspect at Bruen step one. But see McRorey, 99 F.4th at 836-41 (upholding background check law); Maryland Shall Issue, Inc. v. Moore,116 F.4th 211
, 224-29 (4th Cir. 2024) (en banc) (upholding law requiring license to
purchase a handgun). As the majority notes, courts have found waiting periods related to
certain rights are suspect and others are not. Maj. Op. at 15, 16 n.4.
Under RMGO, we apply the abusive ends inquiry to decide whether a law that
regulates only sale and purchase implicates the right to keep and bear. See 121 F.4th
at 127-28 (holding conditions and qualifications on sale and purchase “do[] not fall
within the protections of the plain text of the Second Amendment” unless “employed for
abusive ends”). As explained below, the Waiting Period Act does not serve abusive ends.
9
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burden. See id. at 113 (holding plaintiff bears burden under Bruen step one).7 They have
not done so.8
RMGO provides a roadmap for the abusive ends analysis. It held the Colorado
law does not do so because the age restriction is a nondiscretionary condition “aimed at
ensuring guns are held by law-abiding, responsible persons,” id. at 122, and because
Colorado’s evidence demonstrated that the age limit imposed is not arbitrary or improper,
see id. at 124-27. The same is true of the waiting period.
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.” Id. at 123; see Bruen, 597 U.S. at 38 n.9.
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,” RMGO, 121 F.4th at 122. Consistent with this
7
As in RMGO, the record is likely sufficient to conclude that the law does not
serve abusive ends regardless of which party bears the burden.
8
The majority contends that Plaintiffs could “overcome any presumption of
constitutionality” because “waiting periods are neither longstanding nor widespread
practices, and diverge from history and tradition.” Maj. Op. at 23. But again, this
contention runs counter to RMGO. We squarely held that under Bruen step one,
conditions and qualifications on commercial sale do not implicate the Second
Amendment’s plain text, obviating any need to show that such a law has a historical
analogue under Bruen step two. See RMGO, 121 F.4th at 121, 127-28. We also held that
a condition or qualification need not be “longstanding” to be presumptively lawful.
See id. at 120-21.
10
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purpose, the Act exempts from the waiting period concealed handgun license holders,
who are required to pass background checks and complete safety training, N.M. Stat.
Ann. § 29-19-4(A)(10);id.
§ 29-19-5(D), which belies the majority’s criticism that the
law “treat[s] all those seeking a firearm as unusually dangerous,” Maj. Op. at 31.
Further, the record “support[s] the legislation’s purpose.” RMGO, 121 F.4th
at 126 n.10. The district court found that “waiting periods reduce gun homicides by
roughly seventeen percent” and “have been shown to decrease suicides.” App., Vol. V
at 1031-32. It also found that the Act’s waiting period “is likely to save approximately
thirty-seven lives per year.” Id. at 1032; see RMGO, 121 F.4th at 127 (noting evidence
that the minimum age requirement would “likely reduce the numbers of firearm
homicides, nonhomicide violent crimes, suicides, and accidental firearm injuries in
Colorado”). 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. Aplee. Br. at 7; compare RMGO,
121 F.4th at 124 (noting 20 states had set the minimum purchase age for a firearm at 21).
Four states set shorter periods, see Colo. Rev. Stat. § 18-12-115(1)(a)(I) (three days);Fla. Stat. § 790.0655
(1)(a) (same); 720 Ill. Comp. Stat. 5/24-3(A)(g) (same); Vt. Stat. Ann. tit. 13, § 4019a(a) (same), five set longer ones, seeCal. Penal Code § 26815
(a) (10 days);D.C. Code § 22-4508
(10 days);Wash. Rev. Code § 9.41.092
(2) (10 business days);Haw. Rev. Stat. § 134-2
(a), (e) (14 days);Minn. Stat. § 624.7132
(30 days), and three set the same seven-day period, see, e.g.,11 R.I. Gen. Laws § 11-47-35
(a)(1), -35.2(a);Md. Code Ann., Pub. Safety § 5-123
(a); N.J. Stat. Ann.
11
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§ 2C:58-2(a)(5)(a). See RMGO, 121 F.4th at 124 (pointing to other jurisdictions with age
restriction laws to show Colorado’s is not “arbitrary or improper”).
In short, the law does not serve abusive ends. It does not “meaningfully
constrain[] the right to keep and bear arms.” B & L Prods., 104 F.4th at 119 (quotations
omitted). 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,” RMGO, 121 F.4th at 122, 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.’” Bruen, 597 U.S.
at 38 n.9 (quoting Heller, 554 U.S. at 635).9
9
The majority states that “[a] supposed condition or qualification that applies as
broadly as this one, put toward an end that is justified only by assuming that citizens
cannot be trusted with their own rights, is put toward an abusive end.” Maj. Op. at 23
n.7. But this characterization cannot be squared with RMGO. Although the waiting
period covers a broader age demographic than the law upheld in RMGO, it applies more
narrowly to only seven days. In any event, a commercial regulation having broad
application, such as a background check requirement, does not necessarily serve abusive
ends. See Bruen, 597 U.S. at 38 n.9 (suggesting laws requiring anyone who wishes to
publicly carry firearms to pass a background check are generally constitutional).
The majority’s statement could equally be made about an age requirement.
RMGO held that the plaintiff in that case had Second Amendment rights, 121 F.4th
at 114-16, yet determined that the age restriction did not serve abusive ends in light of
evidence that the law would reduce homicides, suicides, and accidental shootings, id.
at 127. That a waiting period, like an age requirement, may be overinclusive thus does
not necessarily mean it serves abusive ends.
12
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CONCLUSION
The Waiting Period Act accords with RMGO. I would affirm.
13
Reference
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