New Mexico’s waiting period law, which forces gun purchasers to wait seven days after paying for a firearm and passing the background check, has been ruled unconstitutional by the 10th Circuit Court of Appeals.
HB 129, which was signed into law by Gov. Michelle Lujan Grisham in 2024, mandated a seven-day waiting period on any gun buyer, other than a concealed handgun license holder, who clears an FBI background check to purchase a gun. And another provision made the new law even worse.
The law also states: “If the required federal instant background check has not been completed within twenty days, the seller may transfer the firearm to the buyer.” Under current federal law, if there is a NICS delay and it doesn’t respond within three days of the background check, the FFL can choose to complete the transaction.
On August 19, however, a three-judge panel of the 10th Circuit Court ruled in the case Ortega v. Grisham that the law violated the Second Amendment. The lawsuit was brought by the National Rifle Association and the Mountain States Legal Foundation.
“Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms,” the court ruling stated. “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. In this preliminary posture, we conclude that New Mexico’s Waiting Period Act is likely an unconstitutional burden on the Second Amendment rights of its citizens. We also conclude the other preliminary injunction factors are met and that Plaintiffs are entitled to an injunction.”
John Commerford, executive director of the National Rifle Association’s Institute for Legislative Action (NRA-ILA), said the decision wider reaching than just for gun owners in New Mexico.
“The 10th Circuit has sided with the NRA and held that radical waiting period laws are indeed unconstitutional,” Commerford said in a news report on the decision. “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.”
The waiting period law has been under fire from Second Amendment advocates since it was signed into law. In February of this year, four Republican and one Democrat lawmakers introduced a measure—House Bill 162—that would eliminate the seven-day waiting period before a firearm dealer can legally transfer ownership of a firearm and would revert back to the federal three-day waiting period for no-response transfers. While the measure had 20 House co-sponsors, it didn’t really make much progress this legislative session.
As we’ve pointed out before, according to a fact sheet on waiting periods from the National Rifle Association’s Institute for Legislative Action (NRA-ILA), there is no evidence that waiting periods reduce suicides, homicides or mass shootings. In fact, no studies that identify causal effects have been identified by any of the independent literature reviews conducted since 2004.
“Waiting periods are arbitrary impositions with no effect on crime or suicide, introduce no additional investigative avenues and only burden law-abiding gun owners without changing how or when criminals obtain firearms,” the fact sheet states.
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