Appeals Court Ponders New Mexico’s 7-Day Wait Period to Get Gun

The fate of a New Mexico law that requires gun purchasers to wait seven days before they can acquire the weapon may rest on whether the Tenth Circuit thinks the law is comparable to age restrictions on the right to bear arms.

New Mexico Deputy General Counsel Kyle Duffy told the US Court of Appeals for the Tenth Circuit during oral argument Tuesday that the appeals court’s earlier reasoning in Rocky Mountain Gun Owners v. Polis squarely applies here. That opinion upheld a Colorado law that requires gun purchasers to be at least 21 years old. It said that Colorado’s age limitation was outside the scope of the Second Amendment, because it imposes conditions on the commercial sale of guns, not the right to bear arms.

Matthew Rowen of Clement & Murphy PLLC, who represented the plaintiffs challenging the New Mexico cooling-off period, said that Rocky Mountain was wrongly decided. But even if the Tenth Circuit applies Rocky Mountain, it can still rule in favor of the challengers, because New Mexico’s law is overbroad and is triggered by a person’s desire to exercise their right to own a gun, he said.

Similar laws in other states are also being challenged in court: Maine’s three-day cooling-off period was stayed in February by a federal district court; a challenge to Colorado’s three-day cooling-off period was also voluntarily dismissed in the Tenth Circuit by Rocky Mountain Gun Owners.

When analyzing a gun regulation, the US Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen held that courts must first ask if the regulation impairs conduct that falls under the scope of the Second Amendment. If it does, the government must show it’s “consistent with this Nation’s historical traditions of firearm regulation.”

New Mexico residents Paul Samuel Ortega and Rebecca Scott, who already own multiple guns, challenged the New Mexico law in May 2024, saying that it can’t be squared with the country’s historical tradition of regulating firearms. The US has never endorsed laws designed to keep guns out of the hands of law-abiding citizens without regard to any individualized concerns, they argued.

New Mexico has “historically suffered from greater rates of gun violence than the country as a whole,” the state said in its brief to the Tenth Circuit. The law was adopted in 2024 to help the state combat that crisis, it added, and to prevent “impulsive murders and suicides.”

The law is intended to keep guns out of the hands of people who might be prohibited by federal law from possessing them, New Mexico also said in its brief. It addresses a loophole in federal law that requires dealers to give firearms to a buyer if their background check isn’t completed in three days, the state said—the law normally requires a federal instant background check for the sale to be finalized.

Agreeing with the state’s arguments supporting the law, the US District Court for the District of New Mexico upheld the law last July.

The state in its brief also said the challengers can’t meet their burden under Bruen’s first step because the Second Amendment’s plain text doesn’t cover the conduct of buying a gun—"not to mention the immediate acquisition of purchased firearms"; the law is presumptively constitutional because it is a condition or qualification on the commercial sale of firearms; and the law’s waiting period survives Bruen’s second step because it’s consistent with the nation’s historical tradition of commercial firearms regulations, which prohibited the sale of firearms to some citizens out of a concern that they might use it to cause harm.

Rowen told the Tenth Circuit that New Mexico’s law isn’t a condition on the sale of a gun, it’s a condition on possession, which is protected by the Second Amendment. He said that the waiting period isn’t contingent on any individualized concerns about the purchaser—that it applies to everyone. As such it has abusive ends that run afoul of the Second Amendment, he argued.

The law also doesn’t have any mechanism to decide who’s a law-abiding citizen, Rowen said. It’s a general restriction on the right to bear arms that the Supreme Court ruled is unconstitutional in United States v. Rahimi, he added.

Duffy argued, however, that the purchase of a gun can be regulated under Bruen. He also compared the waiting period to various licensing laws, noting that a license is needed to get married, which is a constitutional right.

Background checks aren’t a perfect means of controlling whether a person should have a gun, Duffy said. They are backward-looking, but waiting periods are forward-looking and evidence shows that they help stop murders and suicides, he added.

Judges Timothy M. Tymkovich, Scott M. Matheson Jr., and Allison H. Eid comprised the panel.

The case is Ortega v. Lujan Grisham, 10th Cir., No. 24-02121, oral argument 5/13/25.