On August 19, 2025, the U.S. Court of Appeals for the Tenth Circuit issued a decision in the case of Ortega v. Grisham, holding that New Mexico’s seven-day waiting period to take possession of purchased firearms violates the Second Amendment.
In 2024, New Mexico enacted the “Waiting Period Act,” N.M. Stat. § 30-7-7.3, requiring a seven-day waiting period for nearly all consumer firearm purchases. Under the Act, the waiting period applies regardless of whether a buyer successfully passes a federal background check prior to the expiration of the seven-day waiting period, and even where a buyer faces an urgent need for self-defense or poses no individualized risk of harm.
Plaintiffs Samuel Ortega and Rebecca Scott, both of whom had legally purchased firearms and passed background checks, filed a lawsuit in the U.S. District Court for the District of New Mexico challenging the Waiting Period Act. They argued the Act violates their rights under the Second and Fourteenth Amendments and sought a preliminary injunction barring its enforcement. The District Court denied plaintiffs’ request for a preliminary injunction, holding the waiting period imposed by the Act did not burden the right to keep and bear arms, was a presumptively lawful condition on the commercial sale of firearms, and was supported by historical analogues. Plaintiffs filed an appeal to the Tenth Circuit.
A three judge panel of the Tenth Circuit reversed the District Court and held that the plaintiffs are entitled to an injunction, concluding that “New Mexico’s Waiting Period Act is likely an unconstitutional burden on the Second Amendment rights of its citizens.” The court held common sense dictates that the right to keep and bear arms necessarily includes the right to acquire them, and that a categorical waiting period infringes upon that right. The court also emphasized that statutory waiting periods imposed on firearm purchases are modern innovations and are not historically grounded restrictions as required by the U.S. Supreme Court’s decisions in New York State Rifle & Pistol Assoc. v. Bruen and United States v. Rahimi.
The panel further rejected New Mexico’s reliance on the Supreme Court’s reference to “presumptively lawful” regulatory measures set forth in District of Columbia v. Heller. They explained that the Waiting Period Act sweeps far more broadly than traditional regulatory conditions on firearm sales and instead operates as a temporary deprivation of a constitutional right. In doing so, the court reaffirmed that the Second Amendment is not a “second-class right” subject to generalized government balancing tests or “paternalistic intent.”
Renzulli Law Firm will continue to monitor the challenges to this law, related litigation, and its potential impacts. If you have any questions about laws regulating firearms and ammunition, please contact John F. Renzulli or Christopher Renzulli.