The 72-hour waiting period on gun purchases approved by Maine's legislature last year will remain unenforced for the time being, after a federal judge denied a request by the state's Attorney General to lift a temporary restraining order. 

Attorney General Aaron Frey presented two arguments to Chief District Judge Lance Walker in favor of lifting the TRO that was put in place ast month; the statute will "preserve lives" and is "presumptively lawful." Walker found both arguments lacking, noting that in order for injunctive relief to be reversed, the AG had to convincingly demonstrate four factors: the likelihood of success on appeal; irreparable harm absent injunctive relief; a lack of substantial injury to others having an interest in the decision under appeal; and service of the public interest.

AG Frey’s first argument, loss of life, is indeed potentially weighty, but it does not inform the merits inquiry. In Bruen, the Supreme Court eliminated the familiar means-ends test in Second Amendment challenges. Before Bruen, the alleged lifesaving benefits of a three-day waiting period may have been relevant to the merits of a constitutional challenge through a standard scrutiny analysis, but that has not been the law of the land for nearly three years. This is an unsubtle point that nevertheless appears los tin the shuffle, apparently to persuade me of the wisdom of the law to compensate for its potential constitutional shortcomings. But this is beside the point for purposes of constitutional review because even a wise law may be found unconstitutional. My preliminary conclusion is just that. Other courts will have the final word on the matter and those courts, even if they disagree with my conclusion, will endeavor to faithfully apply the new constitutional standard in Bruen, not their personal policy preferences. So, while AG Frey predicts that the three-day waiting period may save lives, that has nothing to do with the constitutional analysis I am to apply, as expressed by the Supreme Court.

Frey's argument might be weighty, but it's also entirely speculative. The AG has no idea how many lives might be saved if the three-day waiting period is allowed to take effect, any more than he knows how many lives might be harmed or snuffed out if Mainers can't gain access to a firearm in a timely manner. Walker is correct in pointing out that the text, history, and tradition test the Supreme Court laid out in Bruen doesn't allow much room to consider the justification for any particular statute, and for good reason. Under the intermediate scrutiny standard deployed by many courts around the country after Heller and McDonald, almost any gun control law in question could be upheld so long as the government claimed it was put in place to protect public safety. After Bruen, defenders of these statutes must show that they are consistent with the text of the Second Amendment and the national tradition of gun ownership... and waiting periods are a historic anomaly not seen until the 20th Century, long after the adoption of the Second Amendment in 1791. 

Walker had to point to Bruen once again in addressing Frey's claims that the waiting period law is presumptively lawful. 

The second argument, although addressed to the merits inquiry, lacks merit. Because the Act proscribes conduct clearly covered by the Second Amendment, it is the conduct, rather than the Act, that is “presumptively protect[ed]” under Supreme Court precedent. And for the reasons set forth in the Order, Maine’s new waiting period is inconsistent with the Nation’s history and tradition of firearm regulation. Maine’s waiting period “broadly restricts arms [access] by the public generally,” without attempting to calibrate the new access-to-arms restriction to history and tradition by limiting the law’s application to members of the public who “pose a credible threat” to themselves or others.

The waiting period law isn't some narrowly tailored provision that only applies to, say, those who've previously lost their Second Amendment rights but have had them restored or some other class of would-be gun owners who have demonstrated they pose a credible threat to themselves or others. Instead, it treats every gun purchaser as if they're a danger to themselves or the community; a stance that does indeed put the law at odds with the both the national tradition of gun ownership and the plain text of the Second Amendment that protects the right of "the people" to keep and bear arms.

Frey's next move will probably be taking Walker's denial to a panel of judges on the First Circuit Court of Appeals, where he may very well find a more receptive audience for his arguments. For the time being, however, Maine's waiting period remains on ice, and those with an immediate need to exercise their Second Amendment rights don't have to worry about any artificial delays imposed by the state. 

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