New NM gun law requiring 7-day waiting period for sales challenged in court

May 16—Opponents of a new state law requiring a seven-day waiting period for firearm sales wasted little time in challenging its constitutionality in federal court in Albuquerque.

Two New Mexicans, Samuel Ortega and Rebecca Scott, say they tried to purchase handguns on Wednesday — the day the law went into effect — but were denied their purchases even after both passed the federal background check required for firearm sales.

A lawsuit they filed Wednesday states they were told by gun store clerks they had to wait seven days before they could take their purchased handguns with them, which they contend is an "unconstitutional burden" on their Second Amendment rights. The lawsuit names Gov. Michelle Lujan Grisham and state Attorney General Raul Torrez as defendants.

The state law makes it a misdemeanor for a buyer and the seller to transfer the firearm for ownership prior to seven calendar days. The exceptions include people with a concealed carry license or federal firearms licenses, and sales between immediate family members.

Ortega and Scott wanted to buy the handguns for a lawful purpose, their lawsuit states, "including self-defense in their homes."

"The Waiting Period Act prohibits Plaintiffs from doing so without being subjected to an arbitrary, unnecessary, burdensome and useless delay," states a motion filed with the lawsuit that seeks a temporary restraining order to halt enforcement of the new law.

At least 12 states, including New Mexico, and the District of Columbia have enacted waiting periods for firearm sales, according to the Giffords Law Center to Prevent Gun Violence. There is no federal waiting period.

Supporters of the New Mexico law hope a state waiting period will reduce gun violence and homicides, and provide a cooling-off period for people who are suicidal. Sponsors originally sought a 14-day waiting period, which was slashed in half before the bill was approved and signed by Lujan Grisham.

New Mexico's firearm death rate, according to a legislative analysis this year, "has escalated significantly, moving from the seventh highest in the nation in 1999 to the third highest in 2022."

The waiting period is also intended to close a federal "loophole" that permits a potential purchaser to acquire a gun by default after three days, regardless of whether a background check has been completed.

That waiting period would provide time needed to conduct a federal instant background check, supporters have argued. A legislative analysis found that in 2022, more than 372,000 background checks remained unresolved within the initial three-day window.

The FBI reported that in New Mexico such background checks led to 2,498 denial decisions, primarily because the potential buyers had criminal convictions involving crimes that were punishable for at least a year in prison.

As in the federal court challenges to the governor's emergency public health orders last year, lawyers representing Ortega and Scott contend a 2022 U.S. Supreme Court decision renders the New Mexico seven-day waiting period for firearms sales unconstitutional.

That decision was cited in legal challenges filed last fall to Lujan Grisham's ban of firearms at playgrounds and parks in Bernalillo County and Albuquerque. The two cases are now on appeal at the 10th Circuit Court of Appeals.

In the latest lawsuit involving a state firearms purchase waiting period, the state may attempt to rebut the presumption of unconstitutionality only by demonstrating that the act is consistent with the nation's historical tradition of firearms regulation, states a motion for the temporary restraining order.

But that would be impossible, the motion states, because there is no historical tradition of firearms being regulated in this manner.

The lawsuit is assigned to U.S. District Judge James Browning of Albuquerque and U.S. Magistrate Judge Steve Yarbrough. No date for a hearing on the issue had been set by Thursday afternoon.