In a landmark decision on August 19, 2025, the U.S. Court of Appeals for the Tenth Circuit ruled against New Mexico’s recently enacted seven-day waiting period for firearm purchases, finding it likely violates the Second Amendment. The case, Ortega v. Grisham, highlights ongoing tensions between state efforts to curb gun violence and individual rights under the U.S. Constitution. This article breaks down the key elements of the ruling, its rationale, and its potential ripple effects, including on California’s similar but longer waiting period law.
The plaintiffs, Samuel Ortega and Rebecca Scott, are New Mexico residents and firearm owners who challenged the law after attempting to purchase handguns. Ortega, a retired law enforcement officer, and Scott both passed background checks immediately but were forced to wait seven days to take possession of their firearms. They sued on behalf of themselves and others, arguing the delay infringed on their constitutional rights.
The defendants are New Mexico Governor Michelle Lujan Grisham and Attorney General Raul Torrez, sued in their official capacities. The state defended the law as a necessary “cooling-off” period to reduce impulsive violence and suicides, while also addressing gaps in federal background checks. Amici curiae, including the Brady Center to Prevent Gun Violence and Giffords Law Center, supported the state, emphasizing public safety concerns.
At stake was New Mexico’s Waiting Period Act (N.M. Stat. § 30-7-7.3), enacted in 2024 and effective May 15, 2024. The law mandates a seven-day delay between purchasing a firearm and taking possession, even for buyers who pass instant background checks. Exemptions apply to law enforcement, concealed-carry permit holders, and immediate family transfers, but the rule applies broadly to most consumer sales. The plaintiffs claimed this categorical delay burdens the Second Amendment right to “keep and bear arms,” which they argued implicitly includes the right to acquire firearms without undue delay.
The case arose after the plaintiffs bought firearms on the law’s effective date and sued for a preliminary injunction, asserting both facial and as-applied challenges (except for cases where background checks are delayed).
The Tenth Circuit reversed the district court’s denial of a preliminary injunction and remanded the case with instructions to enjoin the law. Writing for the panel, Judge Timothy Tymkovich held that the plaintiffs demonstrated a substantial likelihood of success on the merits, irreparable harm, and that the balance of equities favored them. The court found the waiting period likely unconstitutional, rejecting the state’s arguments that it did not burden Second Amendment rights or fit within historical traditions.
The court’s analysis followed the framework from District of Columbia v. Heller (2008), New York State Rifle & Pistol Ass’n v. Bruen (2022), and United States v. Rahimi (2024). First, the panel determined that the Second Amendment’s plain text—”the right of the people to keep and bear Arms”—covers the right to acquire firearms. Delaying possession for seven days burdens this right, as acquisition is a “necessary predicate” to keeping and bearing arms. The court dismissed the state’s claim that the burden was minimal, noting that the Constitution rejects interest-balancing for enumerated rights.
Second, the court rejected the district court’s view that waiting periods are “presumptively lawful” under Heller‘s carve-out for “conditions and qualifications on the commercial sale of arms.” The law applies to non-commercial transfers and exempts many commercial ones (e.g., between dealers), making it unlike true commercial regulations. Even if presumptively lawful, the plaintiffs overcame that hurdle by showing no historical basis for such delays.
Third, applying Bruen‘s history-and-tradition test, the state failed to identify “relevantly similar” analogues from the Founding era or Reconstruction. New Mexico cited laws disarming dangerous groups (e.g., felons, the mentally ill) or requiring background checks, but the court found these dissimilar: they targeted specific risks with individualized assessments, not blanket delays on all buyers. Waiting periods, the court noted, originated in the 1920s and exist in only a minority of states, lacking the “well-established and representative” tradition required. The ruling emphasized that assuming all buyers need a “cooling-off” period treats law-abiding citizens with suspicion, contrary to Second Amendment principles.
On other injunction factors, the court presumed irreparable harm from the constitutional violation and merged the equities and public interest analyses, finding the right to self-defense outweighs generalized gun violence concerns.
The ruling immediately halts enforcement of the seven-day waiting period pending further proceedings, allowing buyers who pass background checks to acquire firearms without delay. This could lead to a permanent injunction or settlement, forcing New Mexico to revise or repeal the law. The state may appeal to the Supreme Court, but for now, it undermines recent gun control efforts amid high violence rates. Gun rights advocates hail it as a victory, while critics worry it could increase impulsive acts. The decision aligns with the Tenth Circuit’s recent pro-Second Amendment stance, as seen in Rocky Mountain Gun Owners v. Polis (2024), and may influence other regional challenges.
California imposes a 10-day waiting period on most firearm purchases and transfers (Cal. Penal Code §§ 26815, 27540), longer than New Mexico’s. Enacted to allow time for background checks and prevent impulsive violence, it applies even after checks clear, with exemptions for certain groups like peace officers. All sales must go through licensed dealers, who record transactions with the state. Unlike New Mexico’s law, California’s has been in place since the 1990s (expanded from handguns to all firearms in 2014) and is part of a broader regulatory scheme, including universal background checks and assault weapon bans.
California’s waiting period has faced multiple challenges:
The Ortega ruling, while not binding on the Ninth Circuit (which covers California), provides strong persuasive authority. The Tenth Circuit’s rejection of waiting periods as non-historical and overly broad could bolster arguments in Richards v. Bonta, pressuring judges to apply a strict Bruen test. If the Ninth Circuit follows suit, California’s law should be enjoined or struck down…again.
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