The Tenth Circuit Court of Appeals has refused New Mexico’s request for an en banc hearing after a three-judge panel ruled the state’s seven-day waiting period on firearm transfers violates the Second Amendment.
New Mexico’s only has one avenue left in the appeals process: the U.S. Supreme Court. It’s highly unlikely that the Court would intervene and allow the waiting period to remain in effect until it decides whether or not to take up the appeal, so in all likelihood the waiting period is going to come to a screeching halt in just a few days.
According to an alert sent out to members by the National Shooting Sports Foundation, the panel’s decision will take effect once the court issues its mandate, which should be December 29.
NSSF added, though that in its previous decision on waiting periods, “the Tenth Circuit appeared to distinguish between individuals who pass the background check (i.e., receive a “proceed” from NICS) and individuals who receive a “delayed” response.”
NSSF’s interpretation of the decision is that it effectively allows firearm retailers to transfer guns after the buyer has passed their NICS check. l receives a “proceed” response from NICS. But because the appellate court did not declare the waiting period unconstitutional as it applies to buyers who receive a “delayed” response, NSSF is advising members to follow the state’s seven-day waiting period until the buyer has gotten the green light from NICS.
The Tenth Circuit’s decision not to take Ortega v. Grisham en banc sparked two judges to publish a written dissent authored by Judge Richard Federico, a Biden appointee. Federico contends that the panel’s decision in Ortega conflicts with the Tenth Circuit’s prior decision in Rocky Mountain Gun Owners v. Polis that upheld Colorado’s ban on gun sales to adults under the age of 21 on the grounds that the law is a “presumptively lawful” condition or qualification on the commercial sale of arms.
Ortega suggests that a cooling-off or waiting period is not a condition or qualification for sale “any more than the price of a firearm is.” Ortega then hints at a test for determining whether a regulation is (not) a condition or qualification for sale: “It is not enough that a regulation sometimes affects a commercial sale. . .[Otherwise,] an outright ban on commercial sales would also be a condition or qualification on commercial sales, and presumptively lawful.” But this hypothetical fear is easily addressed. Under Bruen and RMGO, a challenger can rebut the presumption of legality with evidence that the regulation at issue is adapted to “abusive ends” – evidence that the regulation sweeps so indiscriminately as to ensnare law-abiding, responsible citizens and their self-defense rights.
I’m not an attorney, but if an outright ban on gun sales to young adults simply because of their age isn’t an “abusive end” that ensnares law-abiding, responsible citizens and their self-defense rights, I don’t know what would be.
Perhaps a majority of the judges on the Tenth Circuit now believe the court got it wrong in RMGO v. Polis and are doing their best to walk back that decision without directly disturbing precedent?
Even if that’s not the case, it’s easy enough to argue that New Mexico’s waiting period is being put to an abusive end. Though the state maintains that a “cooling off” period is aimed at reducing the number of gun-involved suicides, the law unquestionably intrudes on the ability of law-abiding, responsible citizens to exercise their right to keep and bear arms for self-defense and other lawful purposes. A woman who’s taken out an order of protection against an abusive ex, for instance, may want or need a firearm in case he decides to violate that order, but under New Mexico law she’s forced to wait a week before taking possession of a handgun, even if she passed a NICS check within five minutes of submitting her Form 4473.
Additionally, there is no national tradition of a “cooling off” period when it comes to gun purchases. Yes, some early Americans may have had to wait days, weeks, or even months for a firearm to be handcrafted or delivered to a local merchant, but those delays were based on circumstance, not statute. If a merchant had a gun available for sale, buyers could take possession immediately. Waiting periods are a thoroughly modern invention, and as such don’t comport with either the text or the history of the Second Amendment.
I assume that New Mexico Gov. Michelle Lujan Grisham will appeal the Ortega case to the Supreme Court, but I wonder if the gun control lobby will put any pressure on her to take the loss and avoid the risk of SCOTUS striking down waiting periods in the dozen or so states and territories where they’re in place. We should know by the end ofJanuary if the New Mexico governor will keep defending the week-long waiting period, but by then the statute will most likely have been null and void for several weeks.
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