By Dave Workman
Editor-in-Chief
In a 2-1 decision, a three-judge panel of the Tenth U.S. Circuit Court of Appeals has struck down New Mexico’s seven-day waiting period for taking possession of a purchased firearm, noting in its 38-page ruling, “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.”
The case is known as Ortega v. Grisham, brought by the National Rifle Association and Mountain States Legal Foundation for plaintiffs Samuel Ortega and Rebecca Scott in 2024.
Writing for the majority, Judge Timothy Tymkovich, a George W. Bush appointee, stated, “Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms. 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.”
Judge Tymkovich is joined by Judge Allison Lynn Hartwell Eid, a Donald Trump appointee. Judge Scott Milne Matheson Jr., a Barack Obama appointee, dissented.
The split underscores the adage that elections matter. The Oval Office occupant appoints federal judges, and this split helps explain the importance of voting.
Perhaps the most important paragraph of the entire ruling comes on Page 15, when Judge Tymkovich writes, “The burden imposed by a cooling-off period is brought into sharper focus when considered in the context of other constitutional rights. A carte blanche one-week cooling-off period to publish news stories? Unconstitutional. United States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005) (“A prior restraint is not constitutionally inoffensive merely because it is temporary.”). Temporary closures of churches during COVID-19? Unconstitutional. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))). If a criminal defendant had to wait thirty days after his arraignment before he could seek legal counsel so that he would not unduly resist his prosecution? Unconstitutional, of course. See Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 213 (2008) (“[C]ounsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial.”). The Second Amendment is no different. See Bruen, 597 U.S. at 70 (“The constitutional right to bear arms . . . is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” (quoting McDonald, 561 U.S. at 780)).”
It is powerful language, and other states with waiting periods, such as California and Washington, where the wait is 10 days, should pay attention.
Elsewhere in his ruling, Judge Tymkovich observes, “A blanket waiting period prevents a citizen from possessing a firearm for a flat period and is an infringement on the right to bear arms. It must be scrutinized as one.”
The NRA calls this ruling “a major win for gun rights.”
