Making gun buyers weather a “waiting period” before they can possess the guns they’re buying infringes on the Second Amendment, a federal court circuit that oversees Wyoming ruled Tuesday.
New Mexico last year passed a law making gun buyers wait a week before they can physically possess the guns they purchased. The law has some exceptions for conceal-carry permit holders, law enforcement purchases, transfers between gun dealers and exchanges between family members, but otherwise imposed a blanket waiting period.
Two gun buyers — Paul Ortega and Rebecca Scott — challenged New Mexico’s law after it went into effect in May 2024, asking the federal district court to block the law, both during the case against it and permanently.
Addressing the first question, District Court Judge James Browning declined in July 2024 to block the law during the case against it. Ortega and Scott hadn’t shown that they were likely to win that case, among other factors, so the law could stay active, the federal judge reasoned.
The gun buyers appealed.
Tenth Circuit Judges Timothy Tymkovich and Allison Hartwell Eid disagreed with the lower court’s decision.
Their majority ruling and order reversed the judge’s denial on Tuesday — blocking the law during the case against it and sending a clear message that the law likely won’t survive at the case’s conclusion, either.
“Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms,” wrote Judge Tymkovich in the two-judge majority opinion of the three-judge review panel. “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.”
As for the case at hand, New Mexico’s law itself is “likely” unconstitutional — and now the lower court must analyze it within the 10th Circuit’s strongly-worded condemnations of cooling-off periods generally.
Colorado In A Pickle
The 10th Circuit Court of Appeals pronounces case law for the states of Wyoming, Colorado, New Mexico, Kansas, Oklahoma, and Utah.
The Tuesday ruling puts Colorado officials under a spotlight, Ryan Semerad, a Casper-based attorney who has taught Second Amendment law courses, indicated in a Thursday interview with Cowboy State Daily.
Colorado passed a three-day waiting period law in 2023. Violators face a $500 fine for the first offense and fines between $500 and $5,000 for subsequent offenses.
Though Colorado’s law is still technically alive, the appeals court directly above it has proclaimed that law’s underlying premise unconstitutional.
Now the Colorado Attorney General and prosecutors have choices, said Semerad.
They can wait for New Mexico to appeal the ruling to the U.S. Supreme Court or they can dig in their heels and defend their own law in any challenges against it.
Or they can simply stop prosecuting people for breaking the waiting period law.
“Typically what will happen is the enforcers — the AGs or law enforcement or the actual Attorney General will come out and say, ‘We can’t enforce that law,’” said Semerad.
He compared it to Wyoming authorities not being able to enforce their pre-Roe-vs-Wade abortion bans during the early years of Roe’s jurisprudence reign.
And attorneys – including prosecutors – take an oath to uphold the U.S. Constitution. That includes whatever the relevant courts say the Constitution says, Semerad noted.
“If there’s a case that says, ‘The Constitution says you can’t do this,’ you should adhere to your oath and say, ‘I’m not even going to charge the person,’” he said. “But if you have some activist prosecutor who is like, ‘I don’t think they got it right,’ he could be willing to get in the mud and fight it.”
Colorado Attorney General Phil Weiser’s director of communications did not respond to a voicemail and email request for comment by publication time Thursday.
Wyoming does not have a waiting-period law. Such legislation is likely impossible, at present, under the supermajority Republican membership of the state's legislature.
As for New Mexico, and Colorado by extension, they may still hinge their waiting-period laws on the potential outcome of a U.S. Supreme Court appeal, or a request for an en banc (full court) rehearing in the 10th Circuit.
Remember What We Said Earlier?
The 2008 U.S. Supreme Court landmark case District of Columbia v. Heller established that Second Amendment rights apply to individuals.
The 2022 landmark case New York State Rifle & Pistol Ass’n v. Bruen established a two-part test for analyzing gun laws: do they implicate the plain text of the Second Amendment, and do they fit within the nation’s historical tradition for regulating guns?
These cases shouldn’t have curbed New Mexico’s waiting period law, argued Judge Scott Matheson Jr. Tuesday in his lone-vote dissent.
Heller had carved out an exception, saying commercial regulations of guns are “presumptively” lawful, and “Bruen said nothing about the ‘presumptively lawful’ regulations identified in Heller,” wrote Matheson.
Matheson pointed to Colorado’s law banning people under 21 from buying guns.
The 10th Circuit upheld that law as constitutional in its 2024 decision in Rocky Mountain Gun Owners v. Polis. The court reasoned that 21-year-olds can still own guns, even if they can’t buy them – so that thinking should apply to the waiting period law, argued Matheson.
“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,” he wrote.
‘Illogic’
Tymkovich called that line of reasoning “illogic,” and cast the waiting period law as outside the presumptive-lawful carveout for gun commerce laws. He also critiqued it under a Bruen provision against gun-sale laws prone to “abusive ends.”
“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,” he wrote.
He also brought examples to bear, where mandated “cooling off” delays in other arenas – such as the printing of news stories or the holding of church services – were ruled unconstitutional in actual cases.
Oh, The Wording
Semerad chuckled at Tymkovich’s wording.
The New Mexico law calls itself a “Waiting Period Act,” and Matheson used that descriptor too.
Tymkovich’s majority rebranded it a “cooling off” law.
“That’s very indicative of how (the majority) thought about it,” said Semerad. “Calling it a cooling off period makes it sound more like you’re infringing, but if you call it a ‘waiting period’ it’s like, ‘no, no no – it’s just like the DMV. You have to wait.’”
Clair McFarland can be reached at clair@cowboystatedaily.com.
