A broad coalition of Second Amendment groups has filed suit against the state of New Mexico over its continued enforcement of a law the Tenth Circuit Court of Appeals has deemed "obviously unconstitutional": the 7-day waiting period imposed by the state on almost all firearm transfers.
The "cooling off period" was first challenged in a case called Ortega v. Grisham, with the Tenth Circuit Court of Appeals granting an injunction halting enforcement of the law as it applied to the plaintiffs. Then, in late August, the district court granted summary judgment to the plaintiffs (a decision the state of New Mexico has appealed to the Tenth Circuit).
As the new lawsuit from National Shooting Sports Foundation, National Rifle Association, Second Amendment Foundation, New Mexico Firearms Industry Association, and New Mexico Shooting Sports Association (along with several individual plaintiffs) argues, "because the only plaintiffs in the Ortega case were two individuals, the New Mexico Department of Justice has taken the position that it may continue applying to everyone else in New Mexico a law that the Tenth Circuit has declared 'obviously unconstitutional.'"
Both in public and in private, state officials have said in no uncertain terms that buyers and sellers who fail to comply with New Mexico’s unconstitutional law should be prepared to face criminal charges in state court.
Plaintiffs are leading Second Amendment advocacy organizations, multiple federally licensed firearms dealers in New Mexico, and a former law enforcement officer with concrete plans to purchase a firearm in the coming days. Although Plaintiffs always view litigation as a last resort, New Mexico has made clear that it will not abide the Tenth Circuit’s “holding” unless and until a court makes it do so. So Plaintiffs seek an order that once again declares HB129 unconstitutional in the context of firearms sales to individuals who pass the background check required under federal law and that enjoins New Mexico from enforcing the law against them, their customers, and their members.
While part of this mess can be blamed on the Supreme Court's decision in CASA that has made it virtually impossible for lower courts to issue universal injunctions, the plaintiffs are absolutely correct in pointing the finger at New Mexico Attorney General Raul Torrez for refusing to take the logical step of suspending enforcement of a law that the courts have deemed unconstitutional.
When the DOJ suffered a defeat in the Jensen and Silencer Shop lawsuits, it rightfully decided that the NFA's registration requirements should not be imposed on anyone, even though the court's injunction only barred enforcement against the plaintiffs, their members, and their customers. Torrez should have done the same, but instead he's dug in his heels.
The only difference is that DOJ decided not to appeal the Jensen and Silencer Shop decisions, while Torrez has filed an appeal of the district court's summary judgment with the Tenth Circuit.
Still, that doesn't change the fact that a permanent injunction has now been issued, and the Tenth Circuit has deemed the waiting period law unconstitutional, "both facial[ly] and as applied" to the two named plaintiffs in Ortega. I stand a better chance of going on a date with Charlize Theron than Torrez has of the Tenth Circuit reversing its decision on appeal, and Torrez is simply being obstructionist by continuing to enforce the waiting period law for everyone but the two named plaintiffs.
Hopefully it won't take long for a judge to issue a preliminary injunction that covers all of the plaintiffs in NSSF v. Torrez, along with their members and customers. That would cover the vast majority of gun shops in the state and would address the issue created by Torrez's refusal to concede defeat. I don't think there's any way for New Mexico to win here. The best Torrez can hope for is to draw this legal fight out for as long as possible so he can keep infringing on the Second Amendment rights of New Mexico residents.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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