New Mexico’s seven-day gun-purchase waiting period has lost on the merits in federal court, but the state may continue enforcing the unconstitutional delay against nearly every gun buyer because the injunction protects only the two people who brought the lawsuit.
On August 27, U.S. District Judge James O. Browning granted summary judgment to Samuel Ortega and Rebecca Scott in Ortega v. Lujan Grisham. Browning denied competing summary-judgment motions filed by Gov. Michelle Lujan Grisham and Attorney General Raúl Torrez.
The ruling is a clear Second Amendment victory. It is not, however, a statewide injunction.
Browning’s order immediately prohibits the governor, attorney general, state employees, law-enforcement officers and anyone acting with them from enforcing New Mexico’s Waiting Period Act against Ortega and Scott. It does not extend that protection to other New Mexico residents.
The state’s seven-day waiting period therefore remains in effect for ordinary gun buyers unless they fall under one of the law’s exemptions.
Judge Says He Still Believes the Gun Law Is Constitutional
Browning originally refused to block the waiting period, reasoning that the Second Amendment’s protection of the right to “keep and bear Arms” did not necessarily protect the right to acquire them.
The Tenth Circuit rejected that cramped interpretation in August 2025.
“One cannot keep or bear arms if one cannot acquire them. That is an infringement, even if it is not a direct prohibition or ban,” the appellate court explained.
That should have been obvious. A government cannot respect the right to keep arms while claiming unlimited authority to prevent citizens from obtaining them. The right to acquire a firearm is not some optional privilege disconnected from the Second Amendment. It is a necessary part of exercising the right.
The Tenth Circuit also found that firearm waiting periods are neither longstanding nor widespread and do not fit within America’s historical tradition of firearms regulation. New Mexico failed to produce a Founding-era tradition of forcing peaceable citizens to wait days after buying a firearm and passing a background check.
Browning made clear that the result was not his preferred outcome.
“Although the Court continues to believe the Waiting Period Act is constitutional, the Court is bound by the Tenth Circuit’s decision and the law of the case,” he wrote.
That admission is revealing. Even after the Tenth Circuit explained why New Mexico’s law conflicts with the Second Amendment, Browning remains committed to his original position. Fortunately, a district judge cannot disregard controlling appellate precedent merely because he prefers the government’s argument.
New Mexico Punishes Buyers Who Already Passed Background Checks
Gov. Lujan Grisham signed the Waiting Period Act in March 2024. It generally requires seven calendar days to pass before a firearm may be transferred to its purchaser. The delay applies even when the buyer immediately passes the National Instant Criminal Background Check System check.
The law contains exemptions for certain federal firearms licensees, New Mexico concealed-handgun licensees, law-enforcement transactions and transfers between immediate family members. Everyone else is presumed too dangerous to take possession of a purchased firearm until the state’s arbitrary clock runs out.
Both the seller and buyer can be criminally charged for an early transfer, and each firearm transferred constitutes a separate offense.
Waiting periods can also leave someone facing an immediate threat unable to acquire a firearm for self-defense. A restraining order cannot stop a violent stalker. A firearm can. New Mexico’s law offers no emergency exception for an ordinary citizen who has been threatened and needs the means to defend herself now.
Constitutional rights do not begin when government officials decide that a citizen has waited long enough.
A Victory Limited to Two Gun Owners
The narrow scope of Browning’s order produces an indefensible result. The court has entered judgment for Ortega and Scott on their Second Amendment claim, yet New Mexico can continue imposing the same unconstitutional delay on their neighbors.
The New Mexico Department of Public Safety currently advises that the waiting period remains enforceable against all other firearm purchasers. Browning ordered state officials to notify the Department of Public Safety of the decision by September 10. The department must then post the notice and a copy of the order on its website. The court will also enter a separate final judgment.
The state could appeal, although it would return to the same Tenth Circuit whose controlling decision forced Browning to rule for the plaintiffs.
Supreme Court Fight Over Gun Waiting Periods Is Growing
The timing makes Ortega nationally important. On August 25, gun owners and firearm dealers asked the U.S. Supreme Court to hear Beckwith v. Frey, a challenge to Maine’s 72-hour waiting period. The First Circuit held that buying or acquiring a firearm falls outside the Second Amendment’s plain text.
As AmmoLand previously reported, that decision directly conflicts with Ortega. The First Circuit says the government may regulate acquisition as something that happens before a person “keeps” or “bears” a firearm. The Tenth Circuit correctly recognizes that preventing acquisition necessarily infringes the right to keep and bear arms.
Colorado’s three-day waiting period is also being challenged in federal court. Because Colorado sits within the Tenth Circuit, Ortega is binding authority there. Florida officials, meanwhile, have agreed in an NRA-backed lawsuit that Florida’s three-day waiting period violates the Second Amendment.
The circuit split is now unmistakable, and the Supreme Court has been handed an opportunity to settle the question.
There should be nothing controversial about the answer. The Second Amendment protects the right to acquire arms because no one can keep and bear a firearm that the government refuses to let him obtain. There were no general firearm waiting periods at the Founding, and politicians cannot manufacture historical tradition two centuries after the Bill of Rights was ratified.
New Mexico lost that argument on the merits. The remaining injustice is that the state continues imposing its unconstitutional waiting period on everyone except the two citizens who forced it into court.
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
