New Mexico Governor Suggests Three Year Waiting Period on Gun Sales is 2A-Compliant

In her official response, Lujan Grisham delivered an absolutely unhinged take on what she believes is permitted under the Second Amendment, calling the decision " deeply disappointing, plainly wrong and likely to cost lives in New Mexico."

This ruling ignores a recent binding Tenth Circuit precedent that upheld Colorado’s law barring gun purchases by anyone under the age of 21—a law that requires 18-year-olds to wait three years to purchase a weapon. The ruling also mischaracterizes New Mexico’s gun purchase waiting period, saying it applies to “everyone” when, in fact, it doesn’t apply to those who sell guns to immediate family members, those with a concealed carry permit, and law enforcement officers.

First off, the Tenth Circuit decision the governor cites isn't exactly recent. It came down last November. That's a minor quibble, though, compared to the governor's assertion that the appellate court essentially endorsed a three-year waiting period for young adults hoping to exercise their Second Amendment rights. What the Tenth Circuit (wrongly, in my opinion) held is that Colorado's ban on gun sales to young adults doesn't violate the Second Amendment because "a presumption that laws imposing conditions and qualifications on the commercial sale of arms are lawful extends equally to laws imposing conditions and qualifications on the commercial purchase of arms,” citing Heller's language about the presumption of legality for “laws imposing conditions and qualifications on the commercial sale of arms.” 

The opinion said nothing about waiting periods specifically, but even it does amount to a declaration that adults younger than 21 can be forced to wait up to three years to purchase a firearm it's not analogous to New Mexico's waiting period. After all, New Mexico's law doesn't prevent anyone from purchasing a firearm. It prohibits them from taking possession of a gun they've already purchased until they've cooled their heels for a week.

In the opinion granting injunctive relief against New Mexico's waiting period law, Judge Timothy Tymkovitch addressed that decision, and explained why it's not helpful to New Mexico's case. 

We recently held that some longstanding prohibitions, such as minimum age limits, not only survive Bruen and Rahimi, they also presumptively do not burden the Second Amendment. Still,courts have only partially fleshed out the boundaries of these commercial conditions and qualifications in other Second Amendment challenges, and we acknowledged the lack of fully fleshed out guidance on these “safe harbor” provisions in RMGO. But even in this murky territory, the Waiting Period Act falls far short of a presumptively constitutional law. It is not limited to commercial sales, and it does not fit with other known conditions and qualifications in this category. 

First, cooling-off periods are not tailored to commercial sales. They are imposed on many non-commercial transfers, while many commercial transfers are excluded. Heller carved out “laws imposing conditions and qualifications on the commercial sales of arms.” But the Waiting Period Act does not distinguish between commercial and non-commercial. While the statute refers only to “buyers” and “sellers” and seems to exclude gifts, not every exchange of a firearm for money is commercial in nature. For example, a collector selling firearms to a museum collection must wait seven days. If a hobbyist with a federal firearms license decides to sell a gun to a friend? He must still wait seven days. A waiting period cannot solely be a qualification on commercial sales if it applies equally to non-commercial conduct. True, some non-commercial transfers, such as those between immediate family members, are excluded from the statute. But that small carve out is thin gruel.

... Second, the Waiting Period Act does not impose a condition or qualification like other restrictions considered presumptively constitutional. In Heller, the Court listed “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” as a non-exhaustive list of “presumptively lawful regulatory measures.” ... And in Bruen, in an apparent nod to these categories, the Court noted that “shall-issue” licensing regimes—under which ordinary citizens presumptively qualify for licenses unless investigation reveals otherwise—are meant to ensure that purchasers were “law-abiding responsible citizens.” And because they use “only ‘narrow, objective, and definite standards’” they were not constitutionally suspect. 

But a cooling-off period is not such a condition or qualification. Plaintiffs argue that it is not a condition because it cannot be met by any action, and it is not a qualification because it is universally applicable. They are right. A seven-day waiting period is not a “condition” on a sale any more than the price of a firearm is. The sale happens regardless, and the waiting period is just an artificial delay on possession. Nor is it a qualification. For that would imply that a buyer who has not waited seven days is somehow presumptively unqualified to purchase a firearm—an obviously unconstitutional implication.

I think Tymkovitch made it pretty clear that he has problems with the Tenth Circuit's decision that Colorado's ban on gun sales to under-21s is likely to withstand Second Amendment scrutiny, but contrary to Lujan Grisham's claims, Tuesday's opinion doesn't ignore Tenth Circuit precedent. Instead, it takes that previous opinion head on and goes into great detail explaining the differences between Colorado's law and the New Mexico statute. 

Tymkovitch also made it abundantly clear that New Mexico's waiting period law doesn't apply to "everyone". In the passage cited above, the judge noted that "many commercial transfers are excluded" from the waiting period law. What Tymkovitch wrote was that New Mexico treats "everyone" who wants to purchase a firearm as dangerous, which is true. That is the position the state takes from the outset, though someone can rebut that presumption by being an active member of law enforcement, possessing a valid concealed carry license, or purchasing a firearm from an immediate family member (who, presumably, wouldn't sell a gun to someone they believe are a danger to themselves or others).

The governor's take on the Tenth Circuit is sheer lunacy, but I do appreciate the fact that she's letting us know just how extreme her take on the Second Amendment really is.