Last year New Mexico Gov. Michelle Lujan Grisham failed to convince the Democrat-controlled legislature to adopt a 14-day waiting period on gun sales, but lawmakers did impose a 7-day waiting period instead.
A group of gun owners and Second Amendment groups including the National Rifle Association and Mountain States Legal Foundation sued over the waiting period shortly after it went into effect, but a U.S. District Judge declined to issue an injunction after bizarrely concluding that the Second Amendment doesn’t protect the right to acquire a firearm, only to keep and bear one. Even if the Second Amendment does cover the acquisition of firearms, the judge held that the waiting period law is a “presumptively lawful” statute regulating the commercial sales of firearms, and finally stated that if that argument doesn’t hold water, “the Waiting Period Act is consistent with the Nation’s historical tradition offirearm regulation, because it comports with the principles underlying founding-era commercial regulations restricting the sale of firearms to sections of the population out of a concern that certain among those groups might use the purchased guns to do harm in society.”
The plaintiffs appealed Judge James O. Browning’s decision, and today the Tenth Circuit Court of Appealed overruled the district court, concluding that the plaintiffs are likely to prevail in their lawsuit and declaring that the plaintiffs are entitled to an injunction.
The panel argued that, contrary to Browning’s ruling, “common sense dictates that the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text.”
The panel also concluded that the waiting period law isn’t a restriction or regulation on the commercial sales of firearms, because it applies to private transactions as well.
Since the Second Amendment is implicated by the waiting period law, it’s up to the state of New Mexico to prove that forcing someone to wait a week to pick up a gun they’ve already purchased fits within the national tradition of gun ownership, and the state failed spectacularly.
First, we reject the notion that other waiting period laws themselves carve out a historically grounded principle. They are mostly a modern innovation. New Mexico points out that the Waiting Period Act’s historical pedigree stretches back to 1923, but that is an oversimplification. True, California imposed the first (one-day) waiting period in that year, intended to give officials time to conduct a background check. A few states followed suit over the next few decades. But those early examples are easily distinguished from this one because they were explicitly tied to the time it took to conduct a background check. Until the 1990s, no waiting period law required a prospective buyer to wait longer than was necessary to conduct a background check.
It doesn’t matter if you’ve passed a background check at the point of sale in New Mexico. You’re still subjected to that artificial waiting period… unless, oddly enough, you possess a valid concealed carry license, in which case you can take possession of your firearm right away.
As the panel noted, there were no waiting period laws in place in 1791 or 1868, not even to provide a “cooling off period” for those impulsively purchasing a gun to commit a crime or self-harm. There is simply no longstanding tradition of depriving people from taking possession of a lawfully purchased gun until the state says they can do so.
But New Mexico also argued that “a variety of firearm restrictions are analogous to the Waiting Period Act: intoxication laws; license and permitting regimes; and targeted group bans on firearm carry or possession.” According to the state, those laws are like the waiting period statute in that they are designed to “limit access to firearms to ensure that those keeping and bearing arms were ‘responsible and law abiding citizens.'”
New Mexico’s waiting period law doesn’t do that, though. Again, even if someone has passed a background check, they can’t get their gun right away. Making them wait a week doesn’t prove that they’re responsible or law-abiding. As the panel declared, “we… reject New Mexico’s attempt to declare the entire population of New Mexico presumptively dangerous to themselves or others only because they want to acquire firearms.”
New Mexico asks us to accept a principle so broad that it is obviously incorrect. Recall that the district court perceived a historical principle justifying prohibitions on sales to the general populace on the grounds that some among them would harm the public. If that principle were accepted, any regulation could be justified. Any class of people could be the subject of a targeted ban, including any age group, demographic, and any geographic area. Any class could be denied access to firearms if the government feared that some among them would harm the public. It is hard to imagine an exception more likely to swallow the rule.
The panel did give Browning the authority to decide the scope of the injunctive relief he’s now forced to grant. Browning could grant facial relief and block the waiting-period law from being enforced at all, but given his original decision I suspect he’ll instead deploy a more narrow injunction granting relief solely to the named defendants… which may or may not include organizational plaintiffs like the NRA and its members.
We’ll see what Browning (and the state of New Mexico) does here in the coming weeks, but today’s decision is a solid victory for gun owners and Second Amendment supporters, and a stinging defeat for gun control groups Brady and Giffords, which supported New Mexico’s waiting period law with amicus briefs defending the statute. The right of the people to keep and bear arms shall not be infringed, and forcing citizens to twiddle their thumbs for a week (or more) before they can exercise that right is absolutely an infringement on that fundamental right.
Editor’s Note: Second Amendment groups and gun owners are challenging unconstitutional laws around the country, and Bearing Arms is proud to provide first-hand reporting on their successes.
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