New Mexico cannot enforce its seven-day waiting period for firearm sales against two people who challenged the law in 2024, a federal judge ruled this week.
The order Thursday by U.S. District Judge James Browning was not what opponents of the waiting period were expecting after a federal appeals court deemed the waiting period law is likely a violation of New Mexicans’ Second Amendment rights.
Gun store owners say they were expecting a new order tossing the waiting period once and for all.
Thursday’s limited order allows the state to dictate the next turn in the case, gun stores and opponents of the waiting period say.
“The court, in essence, just said, ‘I still think the law is constitutional, but I’m going to issue a permanent injunction as it pertains to the two named plaintiffs in the case,’ ” said Michael McCoy, director of the Mountain States Legal Foundation’s Center to Keep and Bear Arms. “That means it’s now an open question as to whether or not the state’s going to continue to enforce the law against the other 2.12 million people in the state of New Mexico.”
The state stands by the Waiting Period Act and is conducting an analysis for how the agency will proceed from here, a spokesperson for the New Mexico Department of Justice wrote in an email.
“The State defended this case, and we firmly stand by our position that the waiting period was lawful and that New Mexico has a legitimate and important interest in protecting the public,” spokesperson Lauren Rodriguez wrote. “We are now carefully evaluating the judgment and will determine our next steps following that review.”
Michael Coleman, spokesperson for Gov. Michelle Lujan Grisham, noted the order protects only the two plaintiffs in the case from enforcement of the waiting period and said “the law remains in effect otherwise.” He added the state is still assessing its options but “can say with almost complete certainty that we will appeal the ruling.”
Coleman emphasized the benefits of the waiting period, arguing it allows law enforcement officers to conduct background checks before guns are taken home and creates a buffer period between someone’s decision to purchase a firearm and “the moment of impulse, which has been shown to reduce gun deaths, particularly suicides.”
“This is a targeted fix for a specific problem: checks that don’t finish in time and purchases made in a moment of crisis,” Coleman wrote in the emailed statement.
Quick challenge
Lawmakers passed the Waiting Period Act in 2024, and it went into effect that May. The day it went into effect, two New Mexico residents, Samuel Ortega and Rebecca Scott, attempted to purchase guns but were told they must wait seven days to take possession.
Alongside the National Rifle Association, they quickly filed a challenge to the law, naming Lujan Grisham and Attorney General Raúl Torrez as defendants. A judge later denied their petition for either a stay or injunction on the waiting period, and Ortega and Scott appealed to the 10th Circuit Court of Appeals in Denver.
That court reversed the lower court’s decision and said the law was “likely an unconstitutional burden on the Second Amendment rights of its citizens.” The panel sent the case back to the U.S. District Court in New Mexico, and declined a request by the state to review the matter again.
In Thursday’s new order and judgment, Browning said he disagrees with the appellate court that the law was likely unconstitutional but said he did not have the authority to deviate from the appellate court’s mandate.
“The Court is bound by the Tenth Circuit’s decision and the law of the case,” he wrote.
‘Treading water’
The move has left gun sellers in the lurch, McCoy said, noting store owners have waited for this decision for months, believing it would resolve years of uncertainty over whether they should be imposing the waiting period.
As the case has proceeded through the courts, gun buyers have had to wait to receive their guns. Now, McCoy said Browning has effectively allowed the state to determine whether it will continue to enforce the law.
That has left gun stores caught between the possibility of being able to abandon the waiting period, given the law’s designation by a federal appeals court as probably unconstitutional, and the threat of prosecution should the state decide to continue enforcing the law.
“Everyone’s treading water. Everyone’s waiting for some answer,” McCoy said.
Erik Rasmussen, a board member and former president of the New Mexico Firearms Industry Association, said his organization has advised its member gun store owners — and all others throughout New Mexico — to continue abiding by the waiting period until the state makes clear its plans.
The waiting period has put a financial strain on businesses in the more than two years it has been in effect, said Rasmussen, who owns Right to Bear Arms, a gun store in Albuquerque. Gun stores have lost sales to out-of-state customers unwilling to return to New Mexico to pick up their firearms, suffered from buyers discouraged by the prospect of having to wait to receive their purchases, and been forced to set aside extra storage space to hold onto firearms, he said.
“It has certainly had a financial impact on all of our businesses, and as deemed by the circuit court, it was found to be unconstitutional,” he said.
McCoy and John Commerford, executive director of the National Rifle Association Institute for Legislative Action, still appear optimistic for the future of the case, noting that if the state tries to enforce the waiting period, a flood of new legal challenges are likely.
McCoy said that “if it’s unconstitutional as to them,” referring to Ortega and Scott, “it’s unconstitutional to all other law-abiding citizens in the state as well.”
Commerford added: “We have a clear decision from the 10th Circuit that this law is unconstitutional. So we’ll immediately go back to court to broaden that. The only impact will be more taxpayer dollars wasted trying to defend an unconstitutional law that treats the Second Amendment as a second-class right.”
Esteban Candelaria is a corps member with Report for America, a national service program that places journalists into local newsrooms. He covers child welfare and the state Children, Youth and Families Department. Learn more about Report for America at reportforamerica.org.
