New Mexico’s 7-Day ‘Cooling-Off’ Period for Gun Purchases is Unconstitutional, Appeals Court Rules

New Mexico’s seven-day waiting period after the purchase of a gun was ruled unconstitutional by the U.S. Circuit Court of Appeals for the 10th Circuit in a 2–1 decision on Aug. 19.

The 2024 law requires a so-called cooling-off period of seven days before a buyer can take a legally purchased firearm home. This is in addition to passing a background check and proving he or she can legally own a firearm under the law.

Plaintiffs Samuel Ortega and Rebecca Scott claimed that the waiting period prevented them from taking their legally purchased firearms home, even though they had complied with all state and federal laws.

The defendants are Gov. Michelle Grisham, in her official capacity as governor, and Raúl Torrez, in his official capacity as attorney general of the state of New Mexico.

In the majority opinion, Judge Timothy Tymkovich wrote that the lawful acquisition of firearms is an integral part of the right to keep and bear arms. Therefore, “cooling-off” periods and other extraneous requirements infringe on that right.

The majority also found that waiting periods have no historical analogue in the United States’ historical tradition of firearms regulation.

“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,” Tymkovich wrote.

“We also conclude the other preliminary injunction factors are met and that Plaintiffs are entitled to an injunction.”

Grisham issued a statement expressing disappointment at the ruling. She said the plaintiffs mischaracterized the law by saying it applied to all gun sales even though there are exceptions, such as a sale to a family member. She stated that eliminating the waiting period would cost lives.

“The evidence is clear—waiting periods prevent impulsive acts of violence and suicide, giving people time to step back and reassess their emotions during moments of crisis. I’m disappointed that today’s ruling doesn’t take this into account,” Grisham wrote.

“We are reviewing our legal options in reaction to today’s misguided ruling by the Tenth Circuit Court of Appeals.”

In a dissenting opinion, Judge Scott Matheson Jr. wrote that the plaintiffs failed to show that they were likely to win if the case were taken to a higher court. He wrote that certain requirements, such as waiting periods, don’t infringe on Second Amendment rights because they regulate sales and not the firearms themselves.

“The Waiting Period Act establishes a condition or qualification on the commercial sale of arms that does not serve abusive ends,” Matheson wrote.

The National Rifle Association—which helped bring the case—said the law had no foundation under the standard set by the June 2022 U.S. Supreme Court decision in New York State Rifle and Pistol Association v. Bruen.

In that decision, the high court ruled that a law must fit a plain reading of the Second Amendment and have a corresponding law, although not necessarily an identical law, from the time of the amendment’s ratification.

“New Mexico’s proffered historical analogues—intoxication laws, licensing regimes, and restrictions that applied only to certain targeted groups—were found insufficient,” the NRA statement reads.

John Commerford, executive director of the NRA Institute for Legislative Action, said the ruling will extend beyond the state of New Mexico. He said the 10th Circuit decision will cripple a favorite tactic of gun control advocates.

“The 10th Circuit has sided with the NRA and held that radical waiting period laws are indeed unconstitutional,” Commerford wrote in a statement after the ruling. “This decision not only impacts gun owners in New Mexico, Colorado, Utah, Wyoming, Kansas, and Oklahoma, but serves as a key piece in dismantling similar gun control laws across the country.”

According to the court documents, Rhode Island, Maryland, and New Jersey also have seven-day waiting periods. Colorado, Florida, Illinois, Vermont, and Maine have three-day waiting periods. Maine’s waiting law is on hold while it is the subject of a separate lawsuit.

Three states have a 10-day waiting period: Hawaii, Minnesota, and Washington.

California law requires a 30-day waiting period.