Tenth Circuit Strikes Down New Mexico’s Seven-Day Firearm Waiting Period: A Landmark Second Amendment Victory
In a significant application of the Supreme Court’s text-and-history framework from New York State Rifle & Pistol Association v. Bruen, a divided panel of the U.S. Court of Appeals for the Tenth Circuit held that New Mexico’s seven-day waiting period for most firearm purchases likely violates the Second Amendment. The August 19, 2025 decision in Ortega v. Lujan Grisham (also styled Ortega v. Grisham) reversed a district court denial of preliminary injunctive relief and ordered the lower court to enter an injunction. The ruling represents the first time the Tenth Circuit has struck down a firearms statute on Second Amendment grounds and sends a clear signal that categorical “cooling-off” periods cannot be imposed on law-abiding citizens simply because the government fears they might misuse a constitutional right.
Background of New Mexico’s Waiting Period Act
New Mexico enacted its Waiting Period Act in 2024 amid high rates of gun violence. Signed by Governor Michelle Lujan Grisham, the law required firearms sellers to wait seven calendar days before transferring a firearm to most buyers. The waiting period applied even after a buyer passed the required federal National Instant Criminal Background Check System (NICS) check. Limited exceptions existed for concealed-carry permit holders, law enforcement, and certain immediate family transfers. If a background check remained incomplete after seven days, the law effectively extended the delay further—up to 20 days in some circumstances—before transfer was permitted.
The stated purposes were to reduce impulsive acts of gun violence and suicide and to close what lawmakers viewed as a loophole in federal law that allows transfer after three business days if NICS has not returned a definitive result. Plaintiffs Samuel Ortega, a retired law enforcement officer, and Rebecca Scott, represented by the National Rifle Association and Mountain States Legal Foundation, filed suit the day the law took effect. They argued the mandatory delay unconstitutionally burdened their right to acquire firearms for self-defense, including in situations of immediate need.
A federal district court in New Mexico denied a preliminary injunction in July 2024. The lower court reasoned that the Second Amendment’s plain text did not necessarily protect the right to acquire arms, that the law was a presumptively lawful commercial regulation, and that historical analogues supported it. Plaintiffs appealed.
The Tenth Circuit’s Majority Opinion
Writing for the 2-1 majority, Judge Timothy Tymkovich (joined by Judge Allison H. Eid) conducted a straightforward Bruen analysis. The court first held that the right to keep and bear arms necessarily includes the right to acquire them. “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,” the opinion stated. A categorical delay that prevents lawful possession—even temporarily—burdens conduct protected by the Second Amendment’s plain text.
The majority rejected the argument that the waiting period was merely a “condition or qualification on the commercial sale of arms” entitled to a presumption of constitutionality under District of Columbia v. Heller. Unlike background checks, age restrictions, or licensing regimes that condition eligibility on objective criteria, New Mexico’s law imposed a universal, time-based barrier on nearly all purchasers regardless of their qualifications or circumstances. The sale itself could be completed; the waiting period simply delayed possession. That artificial delay, the court held, is not a traditional commercial condition.
Turning to historical tradition, the panel found no relevant analogue for a blanket cooling-off period. The earliest American waiting-period laws appeared in the 1920s and were generally tied to the time needed to complete background investigations rather than to impose an arbitrary reflection period. Analogies offered by the state—laws restricting the intoxicated, certain licensing schemes, or historical group-based prohibitions—were either individualized, targeted at specific risks, or rested on now-repudiated discriminatory rationales. The Second Amendment, the court emphasized, does not tolerate “universal and indiscriminate burdens” on the right to acquire firearms.
Importantly, the majority underscored a broader principle: “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.” Drawing comparisons to other enumerated rights, the court noted that a mandatory one-week cooling-off period before publishing news or practicing religion would be constitutionally intolerable. The same logic applies to the Second Amendment.
The panel concluded that plaintiffs were likely to succeed on the merits, that the other preliminary-injunction factors favored relief, and that an injunction was warranted. The case was reversed and remanded with instructions to enter injunctive relief consistent with the opinion.
The Dissent
Judge Scott Matheson dissented. He argued that the majority’s approach conflicted with the Tenth Circuit’s recent decision in Rocky Mountain Gun Owners v. Polis, which upheld Colorado’s age-21 restriction on firearm purchases as a presumptively lawful commercial regulation. Under that framework, Matheson contended, New Mexico’s waiting period established a condition or qualification on commercial sales that did not serve “abusive ends.” He would have affirmed the district court’s denial of preliminary relief.
Subsequent Proceedings and Current Status
New Mexico sought en banc rehearing. On December 22, 2025, the full Tenth Circuit denied the petition. Judges Richard Federico and Nancy Moritz dissented from the denial, warning of public-safety consequences and potential tension with circuit precedent. With en banc review denied, the panel decision stood. The district court later entered a preliminary injunction, and the litigation continued on the merits.
As of mid-2026, the seven-day waiting period remains blocked. The ruling is binding within the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) and has already influenced parallel challenges, including litigation over Colorado’s shorter waiting period.
Broader Implications for Second Amendment Jurisprudence
Ortega is notable for several reasons. First, it squarely holds that the right to keep and bear arms encompasses the right to acquire them in a timely manner. Temporary deprivations are still deprivations. Second, it rejects the notion that modern “public safety” rationales—however well-intentioned—can substitute for historical tradition under Bruen. Third, it clarifies the limited scope of Heller’s “presumptively lawful” commercial regulations: not every restriction that happens to apply to a sale qualifies.
The decision also highlights the practical realities faced by law-abiding citizens. Victims of domestic violence, individuals facing credible threats, or those simply seeking to exercise a core constitutional right should not be forced to wait an arbitrary week while the state second-guesses their judgment. Background checks already screen for prohibited persons. Adding a categorical delay after clearance serves primarily as a hurdle rather than a tailored safety measure.
Critics of the ruling argue that waiting periods reduce impulsive suicides and certain crimes, pointing to studies from other jurisdictions. The Tenth Circuit majority did not dispute the state’s policy goals; it held that those goals cannot override the constitutional text and history. Under Bruen and United States v. Rahimi, the government must demonstrate consistency with the nation’s historical tradition of firearm regulation. New Mexico failed that test.
Looking Ahead
The Ortega decision strengthens the post-Bruen landscape by treating the Second Amendment as a real right rather than a second-class interest subject to balancing. It will likely be cited in challenges to similar waiting periods in other states and circuits. Whether the Supreme Court ultimately reviews the issue remains to be seen, but the Tenth Circuit has drawn a clear line: the government may not impose blanket delays on the exercise of a fundamental right simply because it distrusts the people in whom that right is vested.
For gun owners in New Mexico and across the Tenth Circuit, the ruling restores a measure of the immediate access the Second Amendment has always contemplated. Law-abiding citizens who pass background checks should be able to take possession of their firearms without an artificial cooling-off period dictated by legislative preference. That principle, rooted in text, history, and common sense is precisely what the Tenth Circuit vindicated.