Key Takeaways
- A federal judge ruled against New Mexico’s gun waiting period law in Ortega v. Grisham, allowing two plaintiffs relief without a trial.
- The judge based his decision on the Tenth Circuit’s previous ruling that waiting periods are not longstanding practices under the Second Amendment.
- New Mexico argued that the trial court could reconsider the appeals court’s findings, but the judge rejected this under the mandate rule.
- The ruling bars the state from enforcing the Waiting Period Act against the plaintiffs, but its broader implications are still unclear.
- Similar legal challenges to waiting periods are ongoing in other states, showing a national trend on the issue.
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ALBUQUERQUE, NM — A federal judge ordered New Mexico to stop enforcing its gun waiting period law against two people who sued over it, in an order filed August 27, 2026 in Ortega v. Grisham. The judge ruled for Samuel Ortega and Rebecca Scott without holding a trial, because the two sides did not disagree about what happened, only about what the law allows. Governor Michelle Lujan Grisham and Attorney General Raúl Torrez, sued in their official roles, asked for a ruling in their favor on the same basis and did not get one.
The case is No. CIV 24-0471 JB/SCY in the U.S. District Court for the District of New Mexico. Both sides asked the court to decide the case on the filings on April 20, 2026, and the judge heard arguments on June 2, 2026, before ruling nearly three months later. NRA-ILA announced the result on August 28, 2026 as an NRA victory and described the ruling as striking down the waiting period law.
What decided this case was not a fresh look at the Second Amendment. It was a fight over whether the trial judge still had any room to disagree with the appeals court above him.
On August 19, 2025, the Tenth Circuit ruled in this same case, Ortega v. Grisham, 148 F.4th 1134, and reversed the trial judge’s earlier refusal to put the law on hold while the lawsuit moved forward. The appeals panel wrote that “waiting periods are neither longstanding nor widespread practices, and diverge from history and tradition,” and that “Plaintiffs would overcome any presumption of constitutionality.”
New Mexico’s answer was that the trial court is not “strictly bound by the Ortega majority’s preliminary conclusions.” The state’s point was that the appeals court had been deciding an early, temporary question, so its reasoning was not final and the trial judge could take a second look and land the other way.
The judge rejected that, and he did it with something lawyers call the mandate rule. When an appeals court decides an issue and sends the case back down, its instructions are known as the mandate, and the lower court has to follow them. Quoting the Tenth Circuit’s 2024 decision in Universitas Education, LLC v. Avon Capital, LLC, which was itself quoting the Supreme Court’s 1948 decision in Briggs v. Pennsylvania Railroad Co., the order says a mandate “consists of our instructions to the district court at the conclusion of the opinion, and the entire opinion that preceded those instructions.” That is the sentence that ended the argument. The part the trial judge has to follow is not just the closing paragraph telling him what to do next. It is everything the appeals court wrote, history and tradition analysis included.
The order says the state is barred from putting the Waiting Period Act, N.M. Stat. § 30-7-7.3, into effect or enforcing it against Ortega and Scott. That is the wording in the document. How broadly the state applies the ruling, and whether it appeals, are the open questions.
Waiting periods are being fought over well beyond New Mexico. The Second Amendment Foundation and a group of co-plaintiffs are challenging California’s 10-day waiting period in Curtin v. Bonta, and filed their main written argument in July 2024. “At the time of the founding, when the Second Amendment was included in the Bill of Rights, there was no such thing as a waiting period, anywhere in the country,” SAF Executive Director Adam Kraut said in that announcement. “The first time a waiting period was enacted in any jurisdiction was not until 1923.” That is the same history the Tenth Circuit walked through when it said waiting periods are neither longstanding nor widespread.
The map is moving in three directions at once. I covered the NRA taking aim at Illinois’s 72-hour gun waiting period in a new federal lawsuit, and separately Florida agreeing to kill its three-day waiting period and conceding that it violates the Second Amendment. Meanwhile the New York Senate advanced a bill requiring a 10-day waiting period for all firearm purchases. One state conceding, one state sued, one state building a new one, and now a federal judge in New Mexico telling the governor and attorney general to stand down.
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This is also not the first time this governor has drawn a federal court order over a firearms measure. On September 13, 2023, Gun Owners of America and Gun Owners Foundation secured a temporary restraining order against Lujan Grisham’s public health order banning the carrying of firearms in Albuquerque, with Judge David Urias ruling from the bench.
I will continue tracking Ortega v. Grisham as it moves toward any appeal to the Tenth Circuit.
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