Legal Tenth Circuit Court of Appeals Voids NM Waiting Period for Firearms

[shroom]

Rights aren't all encompassing. You can't incite violence, can't threaten, can't defame, can't yell bomb on a bus, can't yell fire in a movie theater. Just because the 4th amendment exists doesn't mean cops can't ever search you. I'm sure there are limitations to others but this is just what's off the top of my head.

Regarding Bruen quite frankly who cares? SCOTUS can't be bothered to enforce their extremely broad ruling. If they won't step in and put the circuits in line it's just empty words. Watch them relist Duncan 15 times and then quietly deny it cert.

 

[USMC06RET]

If you look at Dvrjon's quotes from the situation of Richards, there is currently no discrepancy, as the case hasn't been decided yet.

Not sure which case you are referring to when you say it "hasn't been decided yet" in the case of Ortega et al. v. Grisham et al., No. 24-2121 in the 10th circuit, it most certainly has been decided. This is from the conclusion section of the brief:

"For these reasons, we reverse and remand to the district court, with instructions to enter injunctive relief consistent with this opinion."

For further confirmation, refer to Westlaw dated 21 August 2025: https://today.westlaw.com/Document/...eItem&contextData=(sc.Default)&firstPage=true

Of course the state can request an en banc review and if losing there they can go to SCOTUS but there has been no petition submitted and the finding has not been stayed as far as I can determine.

 

[USMC06RET]

Watch them relist Duncan 15 times and then quietly deny it cert.

I agree about about Duncan. Unfortunately I fear it is destined to die a painful death during a very busy news cycle where it can be buried without much fanfare.

 

[Dvrjon]

While I agree with you in principle (in particular on the LEO exemptions), let me spin the argument a different way: To buy a gun, you have to do a background check. That background check can be done after you buy the gun. There is a fee for that background check. To save time, you can instead do the background check beforehand, and pay the fee beforehand. If we think of licenses such as CoE and CCW just as a "prepaid background check", then it is much less of the "objectionable fee-based licensing scheme".

Unless, of course, you are in the economic bottom 50%tile of the state. The COE will run $120; the CCW upwards to $1k. The lower economic citizens are then disproportionately barred from participation due to their inability to afford such a luxury pass.

No, because rights have tradeoffs, as described above. If infringing SLIGHTLY into everyone's right to buy a gun (for example with a half-hour background check, and a 3-day cooling off period for the first gun a person buys) happens to save MANY lives, then the infringement is reasonable.

That seems to lean toward interest balancing, no? And, as the statistics seem to suggest, a cooling off period won’t help suicides which seem to be about 50% of the gun fatalities.

The problem here is the terms "slightly" and "many" need to be defined, and that's always going to be a judgement call. Today's legislation in California certainly has those terms being used backwards, as your example of Mr. Portantino shows. In our society, that value judgement is embodied in the legislature, and in the courts. Don't like the results you are getting today? Try to convince representatives and judges, or use the power of the ballot to replace them.

I always like this argument. I’ve been voting R in this state for over 50 years and lobbying my reps almost as long. Now, all of my state reps are Ds in a super majority. Prop 63, Ammunition Control, passed with a 63% “Yes” from the voters. The ballot box in CA is closed.

In any case, California's 10 to 30 day waiting period for all guns is nonsense, and needs to be reformed. Getting completely rid of it for the first-time purchase is probably neither desirable nor viable in today's political world.

Remember, the issue being contested in CA is not background checks or 10 days or 30 days, it’s any days in excess of the completion of the background check. The federal check through NICS takes less than 2 days…sometimes just hours. But DOJ holds approval until the 10th. Unless, of course, they have other things which delay that. The State has developed so many esoteric reasons (Here’s the 2025, 6-page list*) to deny possession of firearms to its residents as to create an unmanageable clearance process. The results of these prohibitions are lodged in various ancient computer systems (AFIS, APPS, CII, etc.) which don’t “talk” to one another, so the information must be manually reviewed.

*Any person who has been convicted of a felony, certain misdemeanors, certain firearms offenses, who is addicted to narcotics, who is the subject of a domestic violence restraining order, or has been committed to a mental institution pursuant to Welfare and Institutions Code section 8100, may not possess or have under his or her control any firearm. This doesn’t include certain statutory conditions which exist that allow for the possession of firearms but preclude the acquisition or purchase of additional firearms, such as the subjects of certain restraining orders and those under state or federal indictment. DOJ Source.

Reform is needed, but it won’t come through policy work; it will come through court mandate.

 

[mblat1968]

Existing law was enacted by people of California via democratic process.

It was in effect for a while so It seems logical that until the final court decision is reached it stays in effect.

Do I like it in this case? No
Do I I like it as a principal? Yes

 

[treelogger]

Not sure which case you are referring to when you say it "hasn't been decided yet"

See Dvrjon's post above: In California, the question whether the 10-day wait is being argued in the Richards case. And that one is currently on hold, waiting for another case.

 

[treelogger]

And, as the statistics seem to suggest, a cooling off period won’t help suicides which seem to be about 50% of the gun fatalities.

That's exactly my argument: If a cooling off period helped A LOT, then it might be justified. But given that the benefit is small or none, it is probably not. Unless someone comes up with a better argument (and data!) pro or con.

The ballot box in CA is closed.

In the short term, certainly. In the long term, I'm not so pessimistic.

 

[Dvrjon]

That's exactly my argument: If a cooling off period helped A LOT, then it might be justified. But given that the benefit is small or none, it is probably not. Unless someone comes up with a better argument (and data!) pro or con.

AB 1406, (CH 224, Stat 2023) basically put the lie to the “cooling off” period argument when it authorized DOJ to request a delay of the delivery of a firearm if additional research or additional records are required to determine a purchaser’s eligibility to possess a firearm. It additionally authorized DOJ to request a delay of the delivery of a firearm for up to 30 days if an emergency causes the Department to be unable to review records to determine a purchaser’s eligibility to possess a firearm before the conclusion of the ten-day waiting period.

There is no mention or indication that the waiting period has anything to do with cooling off. So, in CA, the waiting period is solely related to the background checks. The other arguments are whitewash.

In the short term, certainly. In the long term, I'm not so pessimistic.

I’m not either, but at 74, my “long” term is no longer as long.

 

[USMC06RET]

See Dvrjon's post above: In California, the question whether the 10-day wait is being argued in the Richards case. And that one is currently on hold, waiting for another case.

Technically a circuit court split already exists between the 9th & 10th with regard to mandatory waiting periods. Silvester v. Harris / Silvester v. Becerra, in 2016, the 9th Circuit Court of Appeals reversed the ruling, saying the waiting period does not violate the Second Amendment, even for existing gun owners. In 2018 , the U.S. Supreme Court declined to hear the case, leaving the 9th Circuit’s ruling intact.

As Richards hasn't even reached the 9th circuit, one could petition SCOTUS with a cert on the basis of the existing 2016 decision being in conflict with the 10th circuit's recent decision in Ortega v. Lujan.

 

[Dvrjon]

Technically a circuit court split already exists between the 9th & 10th with regard to mandatory waiting periods. Silvester v. Harris / Silvester v. Becerra, in 2016, the 9th Circuit Court of Appeals reversed the ruling, saying the waiting period does not violate the Second Amendment, even for existing gun owners. In 2018 , the U.S. Supreme Court declined to hear the case, leaving the 9th Circuit’s ruling intact.

As Richards hasn't even reached the 9th circuit, one could petition SCOTUS with a cert on the basis of the existing 2016 decision being in conflict with the 10th circuit's recent decision in Ortega v. Lujan.

Bruen came down in 2022, far after Silvester died. The conflict has to be between post-Bruen decisions.

 

[AR15barrels]

Bruen came down in 2022, far after Silvester died. The conflict has to be between post-Bruen decisions.

The 9th will not disappoint in Richards.

 

[Dvrjon]

The 9th will not disappoint in Richards.

Whatever happens with Richards will be decided in Yukatake v. Lopez. And that's now tied up in the State's Request for Supplemental Briefings. Opposition to State's Request
And if Yukatake is upheld (the laws are unconstitutional) and it is appealed, we can expect that Richards will sit awaiting the SCOTUS appeal process.

 

[Robdog1]

A good test for any infringement on the 2A is to see if it would be acceptable on all the others. EsotericEpsilon brought up a few good examples.

Ask yourself if you would be ok with being forced to have a 10 day waiting period before being able to post anything online. A cooling off period before posting something stupid as a reason???

I doubt you'd even get the 9th circuit to go along with it.

This is the 9th circus we’re talking about, it’s the most liberal court in the country. They’ll go along with just about anything that’s against the constitution as long as CA greases their palms a little and helps fund their retirements.

 

[Dvrjon]

This is the 9th circus we’re talking about, it’s the most liberal court in the country. They’ll go along with just about anything that’s against the constitution as long as CA greases their palms a little and helps fund their retirements.

Do you have proof of such malfeaseance?

 

[Jimi Jah]

Do you have proof of such malfeaseance?

None directly but my father was a California State appeals court Judge. He saw all sorts of stuff. He warned me about judges. He said they are human with human mistakes and human bias. They are not unbiased. Some are very political as we have seen the last 6 months.

 

[Robdog1]

Do you have proof of such malfeaseance?

Use your head and take a look at the patterns over the years. How many cases has CA won and gun owners have lost? Or even just in general, not even gun owners, how many times has the 9th circus ruled in favor of CA and against the citizens? Judges are supposed to be fair and impartial, but I don’t see much fairness or impartiality going on there. Judges are human, and humans can be bought off/swayed pretty easily with a little bit of $.

 

[Dvrjon]

None directly but my father was a California State appeals court Judge. He saw all sorts of stuff. He warned me about judges. He said they are human with human mistakes and human bias. They are not unbiased. Some are very political as we have seen the last 6 months.

Bias does not imply bribed.

 

[Dvrjon]

Use your head and take a look at the patterns over the years. How many cases has CA won and gun owners have lost? Or even just in general, not even gun owners, how many times has the 9th circus ruled in favor of CA and against the citizens? Judges are supposed to be fair and impartial, but I don’t see much fairness or impartiality going on there. Judges are human, and humans can be bought off/swayed pretty easily with a little bit of $.

So, no.

You’re claiming bribery. Prove it.

 

[Jimi Jah]

Bias does not imply bribed.

I didn't imply bribed. Many other factors are involved. Politics, if you haven't noticed the last 6 months.

All federal courts are political courts. They are appointed because of their politics.

 

[ef9boy88]

10 days for your first gun is reasonable but after that it should be same day …

Why is it reasonable for first gun but not others? Once you allow it for first gun ypu open for the argument that "things change over the course of a (week,month,year)