Ortega v. Grisham.
No. 24-2121. 8/19/2025. D.N.M. Judge Tymkovich. Second Amendment—Firearm Purchases—Cooling Off Period—Preliminary Injunction.
August 19, 2025
New Mexico enacted the Waiting Period Act, N.M. Stat. § 30-7-7.3 (the Act), which created a categorical seven-day “cooling-off” period for almost all consumer firearm purchases. Ortega and Scott sued the State of New Mexico to enjoin the Act, alleging Second and Fourteenth Amendment violations of their rights. They requested both facial and as-applied injunctive relief. The district court found that the right to “keep and bear” arms did not cover the right to acquire arms, so a seven-day waiting period did not infringe on Second Amendment rights. Second, the court found that the waiting period was a presumptively constitutional commercial condition on firearm sales under District of Columbia v. Heller, 554 U.S. 570 (2008), and plaintiffs did not overcome the presumption that the waiting period is a minimal burden. Alternatively, the court ruled that the waiting period is consistent with the principles underlying the historical tradition of regulating firearms. The court also determined that plaintiffs’ injury was not irreparable because they owned other firearms, and the balance of equities and public interest weighed in favor of reducing gun violence. The court declined to preliminarily enjoin the Act, and because it did not grant any relief, the court made no findings about the proper scope of any injunction.
On appeal, Ortega and Scott argued that the district court erred by not preliminarily enjoining the Act. Under Heller, courts must determine whether modern laws restricting or punishing firearms use conflict with the historical understanding of the Second Amendment right as protecting an individual right to possess a handgun in the home. Heller allowed for presumptively lawful conditions on firearm sales, notably laws that impose conditions on commercial firearm sales, so a waiting period cannot solely be a qualification on commercial sales if it applies equally to noncommercial conduct. After Heller, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680, 690 (2024), which together instruct that Second Amendment interpretation requires (1) assessing whether a law implicated the Second Amendment’s plain text and (2) analyzing whether the challenged regulation is consistent with the underlying principles of US regulatory tradition. The Tenth Circuit first determined that waiting periods infringe on the Second Amendment by preventing the lawful acquisition of firearms. And while the Tenth Circuit has recently held that some longstanding prohibitions, such as minimum age limits for firearm purchases, do not presumptively burden the Second Amendment, the Act is not presumptively constitutional because it is not limited to commercial sales; it does not impose a condition or qualification like other restrictions considered presumptively constitutional (rather, it is just an artificial delay on possession); and waiting periods are neither longstanding nor widespread practices, and they diverge from history and tradition. Accordingly, Ortega and Scott have shown a substantial likelihood that they will ultimately succeed on the merits. The Tenth Circuit also concluded that the other preliminary injunction factors were met, so Ortega and Scott are entitled to an injunction.
The order was reversed and the case was remanded for the district court to determine the proper scope of relief.