By Tanya Metaksa
What’s New—SCOTUS: still on summer break; New Mexico: Tenth Circuit: Ortega v. Gresham: Case No: 24-2121: The Tenth Circuit held that the waiting period burdens conduct protected by the Second Amendment; New York: Second Circuit: Higbee, Harris & Votruba v. Steven C. James: Case No. 1:240-cv-174: Allows out-of-state residents the right to apply for NY concealed carry permit; New Jersey: Third Circuit, Cheeseman v. Platkin and Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey: Case No. 24-2415, 24-2450, and 24-2506: Third Circuit’s sua sponte (on its own initiative, without party request) order to vacate the panel hearing and rehear the consolidated cases en banc.
Courts of Appeals
New Mexico: Tenth Circuit
Ortega v. Grosham: Case No: 24-2121: Before Tymkovich, Matheson, and Eid, Circuit Judges. Decision written by Tymkovich. This case includes an Amici Curiae from Brady Center to Prevent Gun Violence and Giffords Law Center to Prevent Gun Violence. Appeal from the United States District Court for the District of New Mexico:(D.C. No. 1:24-CV-00471-JB-SCY).
On appeal, the United States Court of Appeals for the Tenth Circuit reversed and remanded. The Tenth Circuit held that the waiting period burdens conduct protected by the Second Amendment, as the right to keep and bear arms necessarily includes the right to acquire them. The court found that such cooling-off periods are not supported by historical tradition or longstanding regulatory exceptions and that the law imposes an unconstitutional burden. The court concluded that the plaintiffs met all requirements for a preliminary injunction and directed the district court to enter injunctive relief consistent with its opinion.
New Mexico: US District Court for the District of New Mexico:
Judge James O. Browning denied the plaintiffs’ motion for a temporary injunction: “This matter comes before the Court on the Motion for Temporary Restraining Order and Preliminary Injunction, filed May 15, 2024 (Doc. 2)(“Motion”). The Court held an evidentiary hearing on June 27, 2024. The primary issue is whether the Court should enter a temporary restraining order (“TRO”) or a preliminary injunction (“PI”) enjoining Defendants Governor Michelle Lujan Grisham and Attorney General Raúl Torrez (“Defendants”) from enforcing N.M.S.A. § 30-7-7.3 (“Waiting Period Act”), because the Waiting Period Act violates the Second Amendment to the Constitution of the United States by burdening the citizens of the State of New Mexico’s right to keep and bear arms. The Court concludes that the Plaintiffs have not shown that they are entitled to a TRO or PI enjoining the Waiting Period Act. Accordingly, the Court denies the Motion.”
Background: In 2024, New Mexico enacted a law requiring a mandatory seven-day waiting period for nearly all consumer firearm purchases, regardless of the buyer’s circumstances or urgency. After the law took effect, two individuals, both of whom promptly passed background checks when attempting to purchase firearms, were forced to wait the full seven days solely due to the new statute. They filed suit in the United States District Court for the District of New Mexico, seeking to enjoin enforcement of the law on Second and Fourteenth Amendment grounds. See the document here.
District Courts
New York: Second Circuit
Higbee, Harris & Votruba v. Steven C. James: Case No. 1:240-cv-174: Judge Mae A. D’Agostino
Three plaintiffs from Connecticut and Massachusetts desired to open carry firearms in New York state and found that the NY law prohibited them because of the state of their residency. Judge D’Agostino summarized the case: “On February 5, 2024, Plaintiffs Carl Higbie, Joseph Harris, and Michael Votruba
commenced this action pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief,
alleging that New York State Penal Law § 400.00(3)(a) (the “firearm statute”) violates their
Second Amendment right to bear arms, along with the Privileges and Immunities Clause of the
United States Constitution. See Dkt. No. 1. Plaintiffs also allege that the firearm statute “violates
the constitutional requirement that New York grant Full Faith and Credit to the concealed carry
permits issued by other states.” Id. at ¶ 26. Plaintiff Higbie is a resident of Connecticut and
Plaintiffs Harris and Votruba are residents of Massachusetts.”
Judge D’Agostino ordered:
ORDERS that Plaintiffs’ motion for summary judgment (Dkt. No. 39) is GRANTED IN
PART and DENIED IN PART as follows:
GRANTED as to Plaintiffs’ Second Amendment claims regarding the
constitutionality of N.Y. Penal Law § 400.00(3)(a) as applied to Plaintiffs Harris and
Votruba; 50Case 1:24-cv-00174-MAD-TWD Document 54 Filed 08/20/25 Page 51 of 51
DENIED as to Plaintiffs’ Full Faith and Credit claim; and
DENIED as to Plaintiffs’ Privileges and Immunities claim; and the Court further
ORDERS that N.Y. Penal Law § 400.00(3)(a) has been unconstitutionally applied to
Plaintiffs Harris and Votruba; and the Court further
ORDERS that Defendants must permit residents of other states to apply for permits to
carry firearms in New York; and the Court further
ORDERS that Defendants and all other officers, agents, servants, employees, and persons
under the authority of the State shall not refuse to accept applications from otherwise eligible
persons who are not residents or employees of the State of New York
In the nationwide legal scheme of things, this will not change New York laws very much, and it is still likely the state will appeal, but the tide of judicial opinion is shifting in dark blue New York.
New Jersey: Third Circuit
Cheeseman v. Platkin and Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey: Case No: 24-2415, 24-2450, and 24-2506.
Background: Multiple consolidated lawsuits, including Cheeseman v. Platkin and Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, challenge New Jersey’s restrictions under the Second Amendment. A lower district court judge ruled narrowly that only Colt-branded AR-15s are protected arms, leaving other semi-automatic rifles and magazines banned. This decision was appealed to the U.S. Court of Appeals for the Third Circuit, which covers New Jersey, Pennsylvania, and Delaware. Oral arguments occurred on July 1 before a three-judge panel that is ”known to be terrible” for Second Amendment rights—a Biden appointee, an Obama appointee, and a Trump appointee—and knowledgeable jurists predicted a 2-1 loss upholding the bans.
Current: On Aug. 20, the Third Circuit’s sua sponte (on its own initiative, without party request) order to vacate the panel hearing and rehear the consolidated cases en banc, meaning before all active judges of the circuit plus one senior judge from the original panel. This rare move came before any panel decision was issued, which Mark W. Smith, Second Amendment attorney (@FourBoxesDiner on X.com and the Four Boxes Diner on YouTube.com), interprets as a proactive step to prevent an anti-Second Amendment ruling. He speculates on the behind-the-scenes process: the panel likely drafted an opinion deeming AR-15s and magazines unprotected, circulated it internally per protocol, and a majority of the circuit’s judges—led perhaps by Chief Judge Michael Chagares, a George W. Bush appointee—found it inconsistent with Supreme Court precedents like Bruen and the Second Amendment’s text. They voted to take the case en banc to censure the decision was well thought out.
Smith emphasizes the en banc composition as favorable, noting a slight majority of Republican appointees (around 7-6 or 8-6, including potential senior Judge D. Brooks Smith, whom he views as pro-Second Amendment). Oral arguments are scheduled for Oct. 15 in Philadelphia. He predicts the en banc Court will declare AR-15s, semi-automatic rifles, and large-capacity magazines as protected arms, arguing that if the full court supported the bans, they would have allowed the panel’s ruling to stand without intervening. Such en banc reviews consume significant time and resources, underscoring the judges’ commitment to overturning what Smith sees as an erroneous draft.
A key call to action in the video is Smith’s urgent plea for the Second Amendment community to push for the swift Senate confirmation of nominee Jennifer L. Mascott to the Third Circuit. As a Trump-era nominee, her seating by Oct. 15 would add another pro-gun judge, tilting the balance further (potentially 8-6). Smith warns this is “mission critical” for securing a win on these “fundamental” rights.
