Appeals court won't rehear decision that ruled waiting period for guns in New Mexico is unconstitutional

New Mexico's seven-day waiting period for most gun purchases is dead for now, after the 10th Circuit Court of Appeals opted against a rehearing of the case by the full court.

Lawyers for the state had asked for the "en banc" review after a three-judge panel of the Denver-based federal appeals court found the 2024 law unconstitutional in August.

While the state decides what to do next, the dissent in the Dec. 22 ruling warned the appeals decision that stands creates a conflict with a prior appeals decision.

And, wrote Appeals Court Judge Richard E.N. Federico, "it discards the exceptionally important public safety issues that surround New Mexico's firearms regulation."

The New Mexico Legislature enacted the Waiting Period Act, which required a "cooling off" period for firearm purchases amid "high state-wide rates of gun violence," Federico wrote .

The bill, signed by Gov. Michelle Lujan Grisham, generally required firearms sellers to wait seven calendar days before transferring a firearm to a buyer. 

"We’re disappointed in the court’s ruling because we believe the seven-day waiting period is entirely constitutional, and we're still weighing our options," said Michael Coleman, director of communications for the Governor's Office, in an email Wednesday.

Appeals Judge Federico wrote in his dissent that the New Mexico law seeks to reduce impulsive gun violence and suicides, and also aims to close a perceived loophole in federal law that sometimes permits a purchaser to acquire a gun without completing a background check if the process takes more than three days.

But the three-judge panel decision finding the law unconstitutional "prevents New Mexico from vindicating those purposes by its chosen aims," the judge wrote.

Even though the full court might agree with the three-judge panel, "New Mexico's stated, uncontradicted, and indisputable interest in the public safety and health of its citizens warrants a closer look before we extinguish it," wrote Federico, who is from Kansas.

This appears to be the first time the 10th Circuit court has ever struck down a firearms statute for violating the Second Amendment, he wrote.

"Even setting aside the immediate public safety consequences in New Mexico. (The Ortega ruling in August) will have widespread ramifications for courts in this circuit that must wrestle with Second Amendment challenges," Federico stated, in a dissent that included Judge Nancy Moritz, also of Kansas.

A panel of the 10th Circuit in 2024 upheld a Colorado statute that set the minimum age for the sale and purchase of firearms within the state at 21 years old. Now, the New Mexico ruling endangers the outcome in the Colorado case, which had no notice or opportunity to participate in the "cooling off" case. And it makes it difficult to predict how other district courts and the 10th Circuit will rule on similar questions of law, Federico wrote.

The territorial jurisdiction of the 10th Circuit includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho.

Coleman, representing Lujan-Grisham's office, told the Journal, "New Mexico's law was narrowly tailored and included exceptions for the transfer of firearms among immediate family members and for those with concealed carry permits. The court's decision raises more questions than it answers, including if waiting periods are constitutional at all. Certainly, the future of any waiting period to buy a firearm is now in question."

The day after the New Mexico "cooling off" period took effect in 2024, two residents filed an appeal in U.S. District Court in Albuquerque challenging its constitutionality. At the time, U.S. District Judge James Browning ruled in favor of the state, finding no constitutional barriers to the waiting period. 

The plaintiffs, who included Samuel Ortega, were represented by attorneys including those who work for the National Rifle Association. Efforts to reach them for comment on Wednesday weren't successful. In appealing Browning's ruling, the attorneys stated there was a critical distinction between the New Mexico and Colorado laws.

In the Colorado case, the appeals court agreed that the state may ban the sale of firearms to 18-to-20-year-olds, "on the theory that young adults are especially susceptible to impulsivity." But New Mexico's law was deemed unconstitutional in that it was an "'across-the-board' waiting period that applied to all members of the general public, even if they pass a background check instantly," wrote the attorney for Ortega and others.

Appeals Judge Federico also cautioned that the decision against a rehearing "relies too heavily" on the possibility that the U.S. Supreme Court will grant a review in a pending petition for certiorari involving whether Florida's law banning 18-to-20-year-olds violates the Second Amendment.

­­He added that the Supreme Court might defer the issue "for percolation in the lower courts."

Given the decision not to hold a rehearing in New Mexico, if the Supreme Court doesn't take up the Florida case, "our jurisprudence will be left in a state of unremedied confusion, with little to no path for correction, at least not in the near term." 

Federico said even though there was an internal process by which the Dec. 22 ruling denying a rehearing was circulated to appeals judges, it "does not substitute for en banc review in a case of such magnitude and complexity."