Tenth Circuit Strikes Down New Mexico’s Seven-Day Firearm Waiting Period

By Cameron Schlagel and V.R. Bohman

Introduction

On August 19, 2025, in the case Ortega v. Grisham, the U.S. Court of Appeals for the Tenth Circuit reversed a district court’s denial of injunctive relief and held that New Mexico’s seven-day firearm waiting period law likely violates the Second Amendment.¹ The law, enacted in 2024, imposed a mandatory seven-day “cooling-off” period for nearly all consumer firearm purchases, regardless of background check results or personal circumstances.² The Tenth Circuit’s decision is significant for its robust application of the Supreme Court’s Second Amendment jurisprudence. The court concluded that the waiting period burdens conduct protected by the Second Amendment and is unsupported by historical tradition, warranting an injunction against its enforcement.

Background

In response to high rates of gun violence, the New Mexico Legislature adopted the Waiting Period Act in early 2024, requiring a seven-day “cooling-off” period for most firearm sales and transfers, with limited exceptions for law enforcement, concealed carry permit holders, and immediate family transfers.³ The waiting period applied even to buyers who had already passed background checks, and no waivers were available for urgent personal circumstances.⁴

Plaintiffs, including individuals who attempted to purchase firearms immediately after the law took effect and were subject to the waiting period despite passing background checks, challenged the statute as an unconstitutional burden on their Second Amendment rights.⁵ The district court denied preliminary relief, finding the right to keep and bear arms did not cover the right to acquire arms, the law was a presumptively lawful commercial regulation, and in the alternative that the waiting period was harmonious with the nation’s historical regulations.⁶ Plaintiffs appealed.

Opinion

The Tenth Circuit, in an opinion by Judge Tymkovich, conducted a three-part analysis: (1) whether the waiting period burdens conduct protected by the Second Amendment; (2) whether the law qualifies as a presumptively lawful commercial regulation; and (3) whether the law is consistent with the nation’s historical tradition of firearm regulation.⁷

The court first held that the right to “keep and bear arms” necessarily includes the right to acquire arms.⁸ Drawing on both common sense and legal precedent, the court reasoned that acquisition is a necessary predicate to possession and use. The court rejected New Mexico’s argument that the waiting period did not implicate the Second Amendment’s plain text, emphasizing that even temporary, categorical delays on the exercise of enumerated rights are constitutionally suspect.⁹ The state’s argument and the district court’s analysis – crediting what was viewed as a “minimal burden” – circumvented the Supreme Court’s cases “landing right back at the ‘freestanding interest-balancing’ approach” that has been squarely rejected.¹⁰ “The Supreme Court and the Constitution,” the court explained, “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.”¹¹ Analogizing to other constitutional rights, blanket waiting periods for speech, religious exercise, or legal counsel would be impermissible.¹²

The court next addressed whether the waiting period fell within the category of “presumptively lawful” commercial regulations.¹³ The court found that the Waiting Period Act was not limited to commercial sales and did not impose a “condition or qualification” akin to background checks or age restrictions.¹⁴ Instead, it imposed a universal, time-based delay on nearly all individual purchasers, regardless of their qualifications or circumstances.¹⁵ The court distinguished the waiting period from longstanding, objective, and narrow commercial regulations, concluding that it was not entitled to a presumption of constitutionality.¹⁶

Applying the historical tradition test,¹⁷ the court found that New Mexico failed to identify a relevant historical analogue for a blanket, time-based waiting period.¹⁸ The earliest waiting period laws dated only to the 1920s and were typically tied to the time required for background checks, not arbitrary delays.¹⁹ The court rejected analogies to historical intoxication laws, licensing regimes, and group-based bans, noting that these were either individualized, targeted, or based on now-repudiated discriminatory rationales.²⁰ The Second Amendment does not tolerate “universal and indiscriminate burdens” on the right to acquire firearms.²¹

The court therefore remanded the case to the district court to determine the proper scope of injunctive relief.²²

Dissent

Judge Matheson dissented, arguing that under the Tenth Circuit’s recent decision in Rocky Mountain Gun Owners v. Polis (RMGO),²³ the waiting period should be considered a presumptively lawful condition on commercial sales and upheld unless shown to serve abusive ends.²⁴ The dissent contended that the law’s uniform, objective standard and public safety rationale did not constitute abusive ends and that the majority’s approach was inconsistent with circuit precedent.²⁵

Conclusion

The Tenth Circuit’s decision in Ortega marks a significant development in Second Amendment jurisprudence, clarifying that blanket waiting periods for firearm acquisition are subject to constitutional scrutiny and must be justified by historical tradition. The ruling underscores that the right to keep and bear arms encompasses the right to timely acquire firearms and that categorical, time-based delays unsupported by historical analogues are likely unconstitutional.