New Mexico 7-Day Gun Waiting Period Likely Unconstitutional (1)

A New Mexico law requiring gun purchasers to wait seven days before taking possession of their newly purchased weapons likely violates the Second Amendment, the Tenth Circuit said Tuesday.

“Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms,” Judge Timothy M. Tymkovich said for the US Court of Appeals for the Tenth Circuit, reversing and remanding the lower court’s ruling. They also don’t fit into any historically grounded exceptions to the right to keep and bear arms, and burden conduct within the Second Amendment’s scope, Tymkovich said, granting the plaintiffs’ motion for a preliminary injunction.

As many as 13 states and the District of Columbia currently have waiting periods after a gun is purchased, according to the Giffords Law Center to Prevent Gun Violence. The laws are intended to prevent impulsive murders and suicides, the center said.

Gun rights advocates see the laws as an infringement on their constitutionally protected right to bear arms and have sued to stop them in other states. Maine’s three-day cooling-off period was stayed in February by the US District Court for the District of Maine, adecision currently being appealed to the US Court of Appeals for the First Circuit. The Maine district court said, “Statutory disarmament in the absence of individual cause is inimical to our Nation’s history and traditions. It is to the Second Amendment what a prior restraint is to the First.”

New Mexico residents Paul Samuel Ortega and Rebecca Scott, who already own multiple guns, said that the cooling-off period violates the Second Amendment under the two-part test in New York State Rifle & Pistol Ass’n v. Bruen, which asks if a gun 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.”

The plaintiffs said the US has never endorsed laws designed to keep guns out of the hands of law-abiding citizens unless there was an individualized concern about that person.

But New Mexico argued that the cooling-off period failed the first part of the Bruen test, arguing the plain text of the statute doesn’t cover the conduct of buying a gun or the immediate acquisition of a purchased gun.

The state encouraged the court to follow its recent holding in Rocky Mountain Gun Owners v. Polis, which upheld a Colorado law requiring gun purchasers to be at least 21 years old. The court 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.

The New Mexico law also doesn’t violate the second part of the Bruen test, 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 them to cause harm, the state’s brief said.

The Second Amendment right to bear arms requires a right to acquire them, Tymkovich said.

Though the court in District of Columbia v. Heller set out presumptively lawful regulatory measures, including “laws imposing conditions and qualifications on the commercial sale of arms,” those rights haven’t been fully fleshed out, Tymkovich said. “But even in this murky territory, the Waiting Period Act falls far short of a presumptively constitutional law.” It’s not limited to commercial sales, and it doesn’t fit in other known conditions and qualifications.

The Waiting Period Act also isnt’ relevantly similar to any historical regulations on the right to bear arms, Tymkovich said. Waiting period laws “are mostly a modern innovation,” and they aren’t analogous to Founding-era restrictions.

Intoxication laws—which the state said are similar—apply only to people who pose a threat to themselves and others, while the Waiting Period Act “applies a blanket burden across all of society, assuming that everyone is dangerous or unstable before they can exercise their Second Amendment right,” Tymkovich said. As for historic licensing laws, they didn’t apply “to all guns, all people, or all places, much less all three.”

Judge Allison H. Eid joined the opinion.

Dissenting Judge Scott M. Matheson Jr. said that the “Waiting Period Act establishes a condition or qualification on the commercial sale of arms that does not serve abusive ends.”

The law doesn’t prohibit anyone from possessing a gun or prohibit all non-purchase transfers. It’s designed to ensure only law abiding responsible citizens own them, he said.

Clement & Murphy, the NRA Office of the General Counsel, and the Mountain States Legal Foundation represented the plaintiffs. The New Mexico Attorney General’s Office represented the state.

The case is Ortega v. Lujan Grisham, 10th Cir., No. 24-02121, 8/19/25.