148 F.4th 1134
10th Cir.2025Background
- In 2024, New Mexico enacted a law mandating a seven-day “cooling-off” period for nearly all consumer firearm purchases, even if buyers passed background checks or had prior clearances.
- Plaintiffs Ortega and Scott, both of whom lawfully attempted to buy firearms and passed background checks, were forced to wait due to the new law. They sued for injunctive relief, arguing a violation of Second and Fourteenth Amendment rights.
- The district court denied a preliminary injunction, finding the waiting period did not infringe the Second Amendment as it allegedly only regulated acquisition, not possession, and fell within longstanding commercial regulations.
- The appellate court (majority) reversed, holding the waiting period burdened Second Amendment rights and does not fit within "presumptively lawful" exceptions or historical justifications.
- The court remanded for the district court to determine the scope of possible injunctive relief in light of an intervening Supreme Court decision on remedy breadth.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 7-day waiting period burden the Second Amendment? | Ortega: Waiting period delays firearm acquisition, burdening right to keep/bear arms. | Grisham: Law regulates only sales, not possession; minor burden not covered by Second Amendment. | Yes, right to keep/bear arms includes right to acquire; waiting period is a burden. |
| Is the waiting period a "presumptively lawful" commercial regulation? | Not a lawful condition/qualification; applies to non-commercial sales, untethered to background checks. | Heller recognizes conditions/qualifications on gun sales as presumptively lawful; waiting period is one. | No, waiting period is overbroad, not like historic conditions on sales; not saved as "presumptively lawful" regulation. |
| Is the waiting period supported by historical tradition of firearm regulation? | No analogous historic regulation imposed blanket delays on all buyers; historic laws imposed only individualized, not universal, restrictions. | Group bans, licensing, and intoxication laws historically limited access; waiting period is analogous. | No, historical analogues targeted specific groups/behaviors, not the general populace; blanket waiting period diverges from tradition. |
| Are Plaintiffs entitled to preliminary injunctive relief? | Yes, violation of constitutional right is irreparable; balance of harms/public interest favor enjoining the law. | No irreparable harm; public interest favors reducing gun violence. | Yes, plaintiffs met requirements for preliminary injunction. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (recognizes individual Second Amendment right but states certain longstanding sale regulations are presumptively lawful)
- New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (sets framework for analyzing Second Amendment claims based on text and historical tradition)
- McDonald v. City of Chicago, 561 U.S. 742 (Second Amendment applies to states through Fourteenth Amendment)
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (sets standard for preliminary injunctions)
- Nken v. Holder, 556 U.S. 418 (explains public interest/prudential factors in injunctive relief)
- Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (temporary constitutional deprivation is irreparable injury)