On February 12, 2024 the New Mexico legislature enacted House Bill 129 entitled the Firearm Sale Waiting Period Act. The New Mexico House initially approved a 14-day waiting period in early 2024, but a floor amendment cut the wait time to 7 days before the final passage. Rhode Island, Maryland and New Jersey have adopted a seven-day waiting period, with four states, Colorado, Florida, Illinois and Vermont opting for three days. California has a 30-day waiting period. In New Mexico, supporters argued that the waiting period would help reduce gun violence and gun deaths in New Mexico. On March 4, 2024 Governor Michelle Lujan Grisham signed the legislation into law and it went into effect on May 15, 2024.
Two New Mexico residents, Paul Ortega a gun owner from Albuquerque and Rebecca Scott, a Farmington woman who owns guns, sued Gov. Michelle Lujan Grisham and Attorney General Raúl Torrez over the law on May 15, 2024, the day the law took effect. The National Rifle Association (NRA) and Mountain States Legal Foundation, an advocacy group for gun rights, filed the lawsuit on behalf of Ortega and Scott citing concerns about delayed access to weapons for victims of domestic violence and others.
Plaintiffs Ortega and Scott said they were forced to wait to purchase guns despite quickly passing background checks and contended the New Mexico statute is unconstitutional under the Second Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment.
Their attorneys argued in part that to keep and bear arms, a prospective gun owner needed to acquire the firearm in the first place and therefore purchasing a gun was covered by the Second Amendment United States Constitution providing for the right to bear arms.
DISTRICT COURT RULING
On July 22, U.S. District Judge James Browning of Albuquerque, in an 104-page ruling, refused to grant a Temporary Restraining Order (TRO) barring enforcement of New Mexico’s 7 day waiting period for purchasing firearms in New Mexico. Judge Browning sided with attorneys for Governor Michelle Lujan Grisham and state Attorney General Raùl Torrez and ruled against the two-gun owners who contended the state’s 7 day waiting period violated their Second Amendment right to bear arms. The US Supreme Court in June upheld a federal gun control law that is intended to protect victims of domestic violence. Judge Browning’s ruling followed a hearing held on the TRO in June.
Browning denied the NRA’s effort to secure a TRO on three grounds:
- That the case would not succeed on its merits because the Second Amendment does not cover firearm sales. The waiting period is not “presumptively Unconstitutional” because it is a condition or qualification on firearm commercial sales and the waiting period is “consistent with the Nation’s historical tradition of commercial firearms regulations, which licensed and prohibited the sale of firearms to sections of the populace out of a concern that a purchaser might use the firearm to harm the public.”
- The NRA and it’s fellow plaintiffs did not show Browning that “they are likely to suffer irreparable injury if the Court does not temporarily enjoin the Waiting Period Act… and the harm that they stand to suffer should they seek to purchase another firearm is slight.”
- That the plaintiffs did not “establish that the balance of the equities weighs in their favor nor that an injunction is in the public interest, because the Plaintiffs’ interest in purchasing a firearm without delay is minimal compared to the public’s interest in keeping the Waiting Period Act in effect.”
EVIDENCE PRESENTED AND COURT’S LEGAL ANALYSIS
During the injunction hearing to prevent the state from enforcing the new law, experts on the history of guns in America testified on both sides. The 7 day waiting period was presented as a way to curb impulsive gun violence, such as suicides, and address New Mexico violent crime rates. Judge Browning considered the plain language of the Second Amendment. He concluded that the right to acquire a firearm in New Mexico, which mandated the waiting period, didn’t impede the right to “keep and bear” a firearm.
Judge Browning found that while gun-related deaths in the United States were higher in 2022 than in any other year on record, he found “the situation is worse” in New Mexico with gun death climbing significantly in the last few years. Judge Browning wrote the age-adjusted gun death rate increased by 87% between 2010 and 2021. Judge Browning found that “The Defendants adduce significant evidence that waiting period laws may help reduce this tidal wave of gun violence.”
Judge Browning noted that testimony given during the hearing that the Waiting Period Act is likely to save about 37 lives per year.
Browning wrote in part:
“On balance … the harm that the Defendants stand to suffer if the Court were to enjoin the Waiting Period Act — the loss of New Mexican lives — significantly outweighs the Plaintiff’s threatened injury. Moreover, the public’s interest in the preservation of dozens of New Mexican lives cannot be understated.”
Browning wrote that having to wait 7 days, as required by the new law, to purchase a handgun is “minimally burdensome” on the plaintiffs’ ancillary right to acquire firearms. Browning wrote the waiting period is a “commercial firearm regulation” that is “presumptively Constitutional.”
Although the lawsuit challenging the law is still pending, Judge Browning found the plaintiffs are not likely to succeed on the Second Amendment claims which was a major factor in his ruling to deny a temporary restraining order or preliminary injunction. Browning wrote this:
“The central question the Court must address here is whether the right … to keep and bear Arms’ encompasses the right to obtain firearms. … In concrete terms, the Waiting Period Act does not limit an individual’s ability to keep firearms in their home nor carry those firearms with them in public for self-defense.”
According to the ruling, to obtain a temporary restraining order or preliminary injunction, a plaintiff must also make “a clear and unequivocal showing it will likely suffer irreparable harm absent preliminary relief”. Judge Browing wrote that waiting a week to buy a handgun “is insufficient to qualify as irreparable harm.” Browing added that “there is divergence of opinion among United State District Courts regarding whether the Second Amendment’s plain text includes only a right to keep and bear arms, not a right to buy them.” The Ninth Circuit Court and the 5th Circuit Court appellate courts found that right didn’t cover “the conduct of purchasing a firearm”.
Judge Browning wrote in part:
“… [T]he Court concludes that the Plaintiff’s Second Amendment Claims fails because it doesn’t cover the conduct of purchasing a firearm. … The Supreme Court has repeatedly instructed that the ‘most important rule in constitutional interpretation is to heed the text — that is, the actual words of the Constitution — and interpret that text according to its ordinary meaning as originally understood. … Today and in 1791, the normal and ordinary meaning of ‘keep’ is to possess and the normal and ordinary meaning of ‘bear’ is to carry. … [The historical understanding of the Second amendment] provides further confirmation that the Second Amendment was not drafted to protect the right to purchase arms.”
According to the Giffords Law Center to Prevent Gun Violence, only three states have longer waiting periods: California, Hawaii and Washington, along with the District of Columbia — that range up to 14 days. Rhode Island also has a seven-day waiting period.
Plaintiffs Paul Ortega and Rebecca Scott appealed Judge Browning’s ruling to the Tenth Circuit Court of Appeals.
TENTH CIRCUIT COURT OF APPEALS PAUSES 7 DAY WAITING PERIOD
On August 19, the three-member panel of the Denver-based federal Tenth Circuit Court of Appeals ruled that New Mexico’s seven-day waiting period on gun purchases likely infringes on citizens’ Second Amendment rights, putting the law on hold pending a legal challenge. In a 2-1 split decision the Appeals Court reversed Federal District Judge Browning’s decision to deny injunctive relief.
Browning, after hearing legal arguments and testimony from historian witnesses, considered the plain language of the Second Amendment. He concluded that the right to acquire a firearm in New Mexico, which mandated the waiting period, didn’t impede the right to “keep and bear” a firearm. However, the appeals court held the opposite view, stating that “the constitutional injury to the Plaintiffs is so broad and clear that they have met their higher burden entitling them to an injunction changing the status quo.” The court reversed Browning’s ruling, and sent the case back for further proceedings.
Court of Appels Judge Timothy Tymkovich wrote in part for the Tenth Circuit Court of Appeals majority:
“Even though the potential to reduce impulsive gun violence might be true, once we acknowledge that the Waiting Period Act likely burdens Second Amendment activity, that potential is outweighed. … [The law applies] a blanket burden across all of society, assuming that everyone is dangerous or unstable before they can exercise their Second Amendment right. … Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms. 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.”
In his dissenting opinion, Court of Appeals Judge Scott M. Matheson said New Mexico’s waiting period “establishes a condition or qualification on the commercial sale of arms that does not serve abusive ends.” Matheson noted the majority opinion of the court ignored a prior Tenth Circuit ruling that upheld Colorado’s law barring gun purchases by anyone under the age of 21, or “a law that requires 18-year-olds to wait three years to purchase a weapon.”
However, the majority opinion acknowledges the precedent and acknowledged that “courts have only partially fleshed out the boundaries of these commercial conditions. … even in this murky territory, the Waiting Period Act falls far short of a presumptively constitutional law.” The “historically grounded exceptions” framework was created by the U.S. Supreme Court in 2022 in a decision that overturned decades of precedent allowing for reasonable regulations on gun purchases.
GOVERNOR MICHELLE LUJAN GRISHAM REACTS
Governor Lujan Grisham was quick to react to the Court of Appeals decision and issued the following statement:
“Today’s decision by the Tenth Circuit Court of Appeals is deeply disappointing, plainly wrong and likely to cost lives in New Mexico. New Mexico’s waiting period law was carefully crafted to minimize gun violence while respecting Second Amendment rights. The dissenting opinion in today’s ruling even notes that New Mexico’s law “is likely to save approximately thirty-seven lives per year.”
“This ruling ignores a recent binding Tenth Circuit precedent that upheld Colorado’s law barring gun purchases by anyone under the age of 21 — a law that requires 18-year-olds to wait three years to purchase a weapon. The ruling also mischaracterizes New Mexico’s gun purchase waiting period, saying it applies to “everyone” when, in fact, it doesn’t apply to those who sell guns to immediate family members, those with a concealed carry permit, and law enforcement officers.”
“The evidence is clear––waiting periods prevent impulsive acts of violence and suicide, giving people time to step back and reassess their emotions during moments of crisis. I’m disappointed that today’s ruling doesn’t take this into account.”
“We are reviewing our legal options in reaction to today’s misguided ruling by the Tenth Circuit Court of Appeals.”
NATIONAL RIFLE ASSOCIATION ISSUES STATMEMT
Not at all surprising, the National Rifle Association (NRA) issued a statement commending the decision. NRA-Institute for Legislative Action Executive Director, John Commerford said this in a statement:
“In courtrooms across America, the NRA is successfully leading the charge to protect law-abiding Americans’ Second Amendment rights. … The 10th Circuit has sided with the NRA and held that radical waiting period laws are indeed unconstitutional. 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.”
OTHERS REACT
Democrat State Senator Joseph Cervantes of Las Cruces, who co-sponsored the cooling off period measure during the 2024 legislative session, said the 10th Circuit’s conclusion was unexpected, considering that a number of other courts at the same level as the 10th Circuit have upheld such waiting periods as constitutional. Cervantes said this:
“We have tried very hard in the Legislature to stay within the lanes that the U.S. Supreme Court has put up. The challenge is that the Supreme Court keeps changing the goal posts.”
Brandon Harris, spokesperson for the state Senate Republican Leadership office, said Republican legislators predicted this outcome during debate on the bill in 2024. Democrats nonetheless passed HB 129 without a single Republican vote.
Senate Republican Leader Bill of Farmington welcomed the appeal court ruling. Sharer said this:
“The clear language of the 2nd Amendment says that ‘the right of the people to keep and bear arms SHALL NOT BE INFRINGED. … Criminals certainly don’t wait seven days before breaking into our homes and threatening our families and properties… What sense does it make to require law-abiding citizens to wait seven days before being able to defend themselves?”
Republican State Senator Crystal Brantley of Truth or Consequences said the court’s decision came as no surprise to her and said this: .
“The Second Amendment clearly says shall not be infringed. It was an overreach that targeted law-abiding citizens. It did nothing to push back on the crime in New Mexico.”
Gun shop representatives lauded the court of appeals decision. Jason Archie, manager of Right To Bear Arms gun shop at 11200 Montgomery NE said enforcement of the waiting period was a “hassle” and that most of his customers weren’t happy about. Archie said this:
“Justice delayed is justice denied. … It was represented as a way to prevent crime, but I didn’t see that crime went down at all.”
Links to relied upon or quoted news sources are here:
https://apnews.com/article/new-mexico-gun-purchases-waiting-period-da509d979b11af8d3bdeeee224b24adf
https://www.cnn.com/2025/08/19/us/new-mexico-gun-waiting-period-blocked
https://www.koat.com/article/new-mexico-appeals-court-blocks-7-day-wait/65823291
COMMENTARY AND ANALYSIS
It is clear New Mexico is suffering a major crisis when it comes to gun violence and gun deaths and there is a critical need for gun control legislation, including a waiting period to purchase guns. New Mexico’s gun violence crisis was laid to bear for all to see on September 28, 2023 when the New Mexico Department of Health released its “Comprehensive Report on Gunshot Victims Presenting at Hospitals in New Mexico.” The report spans the time period from 1999 to 2023. The report provides a detailed analysis of firearm-related violent deaths and injuries in New Mexico. It encompasses data from various sources, including New Mexico’s surveillance systems, state behavioral risk factor surveys, and the Center for Disease Control (CDC) data.
The link to read “Comprehensive Report on Gunshot Victims Presenting at Hospitals in New Mexico” is here:
https://www.nmhealth.org/publication/view/report/8463/
The Governor’s office says it is reviewing its legal options for responding to the ruling. The Governor and the Attorney General need to think long and hard if appealing the ruling to the United States Supreme Court is wise or just a waste of time given the current makeup of the Republican Trump controlled Supreme Court.
The New Mexico legislature is not prevented from enacting other forms of gun control legislation because of the Court of Appeals ruling, including repealing the existing 7 day waiting period. The New Mexico Legislature could enact another version of a waiting day period with sufficient safeguards to pass constitutional muster.
MORE NEEDS TO BE DONE OTHER THAN WAITING PERIOD
Much more must be done by the New Mexico legislature other than a waiting period to curb and reduce the proliferation of guns in the state of New Mexico and to reduce gun violence. If Governor Lujan Grisham and the New Mexico Legislature are truly concerned about the New Mexico’s violent crime crisis, both need to regroup and take and even more aggressive approach than enacting waiting periods. They should work on building a consensus on the enactment of enhance sentencings for crimes and gun control measures.
The message that must be sent out loud and clear by our elected officials to violent criminals is that New Mexico has a zero tolerance of violent crimes committed with firearms and the only way to do that is with enhanced sentencings. Also, the availability and proliferation of guns must be recognized as a big part of the state’s violent crime problem.
CRIME AND PUNISHMENT MEASURES
The following crime and sentencing provisions should be enacted:
Strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison.
Allow firearm offenses used in a drug crimes to be charged separately with enhance sentences.
Making possession of a handgun by someone who commits a crime of drug trafficking an aggravated third-degree felony mandating a 10-year minimum sentence.
Increase the firearm enhancement penalties provided for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.
Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is brandishing of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years
Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
Increase the penalty and mandatory sentencing for the conviction of the use of a fire arm during a road rage incident to a first-degree felony mandating a life sentence.
Update the Children’s Code to deal with charges, increasing penalties and prosecutions of minors as adults as consequences of children using firearms in the commission of violent crimes and aggravated assaults with use of deadly weapon.
Change bail bond laws to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.
GUN CONTROL MEASURES
Gun control measures that should be enacted include an assault weapons ban lawfully regulating the manufacture, possession and sale of weapons of war, most often the gun used in mass casualty events and prohibiting guns in parks and playgrounds making it illegal to carry a firearm in county or municipal parks, playgrounds, and their accompanying parking lots.
Restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms and make it a second-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.
Prohibited magazines with more than 10 rounds.
Prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
Enact a 14-day waiting period for the purchase of any firearm and requiring a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm.
Established a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine.
Ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.
Revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.
Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
Mandate the school systems and higher education institutions “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.
CONCLUSION
The Governor and the New Mexico legislature need to recognize waiting periods to purchase guns are only one small step. They need to get serious about New Mexico’s gun violence crisis and enact reasonable gun control measures in conjunction with crime and punishment measures. Until then, we can expect our violent crime rates to continue to increase.
The link to a related article is here: