Waiting Periods, Commercial Sale Regulations, and En Banc Review: The Tenth Circuit’s Fractured Second Amendment Doctrine in Ortega v. Lujan Grisham

I. Introduction

The order in Ortega v. Lujan Grisham, No. 24‑2121 (10th Cir. Dec. 22, 2025), marks a pivotal moment in the Tenth Circuit’s Second Amendment jurisprudence. Although the text provided is not the panel merits opinion itself, but an order denying rehearing en banc accompanied by Judge Federico’s detailed dissent (joined by Judge Moritz), it reveals both:

• The contours of the Tenth Circuit’s new approach to firearm waiting periods under the Second Amendment; and
• A deep internal disagreement about how to reconcile that approach with prior circuit precedent, most notably Rocky Mountain Gun Owners v. Polis (“RMGO”), 121 F.4th 96 (10th Cir. 2024).

The underlying dispute concerns New Mexico’s 2024 “Waiting Period Act,” codified at N.M. Stat. § 30‑7‑7.3. That statute, enacted against a backdrop of high statewide gun violence and suicide rates, generally requires a seven‑day “cooling‑off” period between a firearm purchase and the transfer of the gun to the buyer, subject to completion of a federal background check. If the background check is delayed beyond seven days, the waiting period can be extended; if it is not completed within twenty days, the seller may transfer the firearm anyway.

Plaintiffs Samuel Ortega and Rebecca Scott challenged this statute under the Second Amendment. A Tenth Circuit panel (in a now‑published opinion cited as Ortega v. Grisham, 148 F.4th 1134 (10th Cir. 2025)) held the statute unconstitutional. The State defendants—Governor Michelle Lujan Grisham and Attorney General Raul Torrez in their official capacities—petitioned for rehearing en banc. The full court denied that petition, with only Judges Moritz and Federico voting to grant it.

Judge Federico’s dissent from the denial of en banc rehearing argues that:

• The case presents an issue of “exceptional public importance” under Tenth Circuit Rule 40.1(B), because it directly affects New Mexico’s efforts to address severe firearm‑related mortality and because it appears to be the first time the Tenth Circuit has struck down a firearms statute under the Second Amendment.
• The panel’s decision in Ortega is in tension—if not outright conflict—with the court’s 2024 decision in RMGO, which upheld Colorado’s age‑based restriction on the sale and purchase of firearms.
• Denying en banc review risks doctrinal confusion, inefficiency in the district courts, and uncertainty for states and individuals about the scope of permissible firearms regulation under the Second Amendment in the Tenth Circuit.

This commentary analyzes the order and dissent as an important snapshot of emerging Second Amendment doctrine and intramural conflict within the Tenth Circuit, focusing on waiting periods, “conditions or qualifications on the commercial sale of arms,” and the standards for en banc review.

II. Summary of the Opinion (Order and Dissent)

A. The Per Curiam Order

The court’s order is procedurally straightforward:

• The defendants/appellees (Governor Lujan Grisham and Attorney General Torrez) petitioned for rehearing en banc after the panel invalidated New Mexico’s Waiting Period Act.
• The petition and the plaintiffs’ response were circulated to all active judges of the Tenth Circuit.
• A poll was called; the poll “did not carry.”
• Rehearing en banc was therefore denied.
• The order notes that Judges Moritz and Federico would grant rehearing; Judge Federico files a separate dissent, joined by Judge Moritz.

The per curiam order itself does not elaborate on reasons for denial. Its legal significance lies primarily in:

• Leaving the panel opinion in Ortega v. Grisham, 148 F.4th 1134 (10th Cir. 2025), in place; and
• Confirming that the full court has declined—for now—to resolve the tension that Judge Federico identifies between Ortega and RMGO.

B. Judge Federico’s Dissent from Denial of Rehearing En Banc

Judge Federico’s dissent is not a ruling on the merits of the Second Amendment issue; it is an argument that the court should rehear the case en banc. Nevertheless, because it identifies and critiques the panel’s reasoning, it effectively frames the emerging doctrinal stakes.

He offers three core reasons why denial is wrong:

1. Exceptional public importance. The case concerns a key New Mexico firearms regulation designed to address “high state‑wide rates of gun violence,” notably firearm suicides. The panel opinion, by striking down the statute, has “grave public safety consequences” and, according to the dissent, appears to be the first Tenth Circuit case invalidating a firearms statute under the Second Amendment.
2. Conflict with existing circuit precedent. He argues that the panel’s approach in Ortega is difficult to reconcile with RMGO, where the court held that “laws imposing conditions and qualifications on the sale and purchase of arms do not implicate the plain text of the Second Amendment” and are “presumptively lawful.” In contrast, the Ortega panel treats waiting periods as implicating the Second Amendment and apparently not covered by that presumptively lawful safe harbor.
3. Institutional responsibility and judicial efficiency. Leaving the apparent tension unresolved will burden district courts, risk inconsistent outcomes, and create uncertainty for both governments and individuals seeking to exercise Second Amendment rights. Expecting the Supreme Court to intervene does not excuse the circuit from its own duty to clarify its law.

Judge Federico concludes by emphasizing two points:

• He would welcome Supreme Court guidance on “regulations of commercial firearm sales,” but until then, the Tenth Circuit must follow its own precedent.
• In his view, RMGO remains the law of the circuit “until the Supreme Court says otherwise,” citing Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996).

III. Background and Legislative Context

A. New Mexico’s Waiting Period Act

The dissent provides an unusually detailed sketch of the legislative background for an appellate order. In 2024, New Mexico enacted the Waiting Period Act in response to “high state‑wide rates of gun violence.” As summarized in Ortega, 148 F.4th at 1139–40, and in the statute itself:

• The Act generally requires firearm sellers to wait seven calendar days before transferring a firearm to a buyer.
• During this period, a federal background check must be conducted.
• If the background check is not completed within seven days, the waiting period may be extended until the check is complete.
• If the background check has not been completed within twenty days, the seller may transfer the firearm to the buyer. N.M. Stat. § 30‑7‑7.3(A).
• The statute uses the terms “buyers” and “sellers” and, according to the panel, “seems to exclude gifts.”

The legislature’s fiscal impact report, cited in the dissent, underscores the public health rationale:

• In 2022, New Mexico experienced approximately 550 firearm‑related deaths, more than half from suicides.
• The firearm death rate was 26.5 per 100,000 residents—84% higher than the national rate of 14.4 per 100,000—making it the third‑highest age‑adjusted firearm death rate in the nation.
• Over roughly two decades, the state’s firearm death rate worsened from seventh‑highest to third‑highest nationally.
• Suicides represent a “significant proportion” of firearm deaths, and the state relied on studies suggesting that waiting periods have at least “moderate support” as a means to reduce suicides and homicides.

Judge Federico acknowledges that these purposes “may not be dispositive as to the ultimate merits analysis under the Second Amendment,” given the Supreme Court’s rejection of means‑end balancing in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). But he emphasizes that the evident nexus between the law and public health makes this an “issue of exceptional public importance” warranting en banc review.

B. Litigation Posture

The procedural posture, critically, is as follows:

• Plaintiffs Ortega and Scott challenged the Waiting Period Act on Second Amendment grounds.
• A district court decision (cited by the dissent as Ortega v. Lujan Grisham, 741 F. Supp. 3d 1027 (D.N.M. 2024)) preceded the appeal, though the order does not reproduce its reasoning.
• The Tenth Circuit panel in Ortega v. Grisham, 148 F.4th 1134 (10th Cir. 2025), struck down the statute, apparently on its face, as unconstitutional under the Second Amendment.
• The State defendants sought rehearing en banc; that petition was denied; Judges Moritz and Federico would have granted it.

Thus, the operative law in the Tenth Circuit now includes:

• RMGO (2024), upholding Colorado’s age‑21 restriction on firearm purchases as a “presumptively lawful” condition on the commercial sale of arms that does not implicate the Second Amendment’s “plain text” at step one of the Bruen framework; and
• Ortega (2025), striking down New Mexico’s seven‑day (extendable) waiting period, while characterizing regulations on firearm acquisition as covered by the “keep and bear Arms” guarantee.

IV. Doctrinal and Precedential Framework

A. Supreme Court Second Amendment Cases: Heller, Bruen, and Rahimi

Judge Federico situates the Tenth Circuit’s Second Amendment jurisprudence within three main Supreme Court decisions:

1. District of Columbia v. Heller, 554 U.S. 570 (2008).
   • Held that the Second Amendment protects an individual right to keep and bear arms for self‑defense, especially in the home.
   • Critically for this case, the Court listed “presumptively lawful regulatory measures,” including laws “imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. at 626–27 & n.26.
   • Exactly how this “safe harbor” interacts with later text‑and‑history analysis is the central doctrinal dispute underlying RMGO and Ortega.
2. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
   • Invalidated New York’s “proper cause” requirement for public carry licenses.
   • Articulated the now‑governing two‑step framework:
     1. Step 1: Does the challenged regulation burden conduct covered by the “plain text” of the Second Amendment (the right of “the people” to “keep and bear Arms”)?
     2. Step 2: If so, the government must show that the regulation is “consistent with the Nation’s historical tradition of firearm regulation.” If it cannot, the regulation is unconstitutional.
   • Bruen rejected “interest balancing” and emphasized historical analogues rather than empirical policy justifications.
   • Footnote 9 (invoked in RMGO) suggests that “abusive ends” regulations that disarm “law‑abiding, responsible citizens” are suspect, providing language the Tenth Circuit uses to evaluate when regulations become impermissibly broad.
3. United States v. Rahimi, 602 U.S. 680 (2024).
   • Upheld 18 U.S.C. § 922(g)(8), which disarms individuals subject to certain domestic violence restraining orders, under the Second Amendment.
   • Clarified that historical analogues need not be “twin” regulations but must be “relevantly similar.”
   • Also reiterated standard doctrines on facial challenges: a facial challenge generally must show that “no set of circumstances” exists under which the statute is valid (outside the First Amendment context), tracking United States v. Salerno, 481 U.S. 739, 745 (1987).
   • Judge Federico relies on Rahimi and Salerno to question the propriety of invalidating the New Mexico law on its face simply because certain hypothetical applications might be problematic.

B. The Tenth Circuit’s Key Firearms Decision: Rocky Mountain Gun Owners v. Polis (RMGO)

RMGO, 121 F.4th 96 (10th Cir. 2024), is the cornerstone of Judge Federico’s critique.

There, the Tenth Circuit upheld a Colorado law setting the minimum age for purchasing and selling firearms at twenty‑one. The court:

• Surveyed Heller, Bruen, and Rahimi.
• Emphasized that Heller describes certain categories of regulations—such as “conditions or qualifications on the commercial sale of arms”—as “presumptively lawful.”
• Held that Colorado’s age‑21 restriction falls within this “conditions and qualifications” category, and, as such, does not implicate the “plain text” of the Second Amendment at step one of the Bruen inquiry.
• Concluded that, because the law falls into this safe harbor and is not aimed at “abusive ends,” the analysis ends at step one without the need to canvass historical analogues at step two. 121 F.4th at 114, 118–20, 120–28.

Judge McHugh’s concurrence in RMGO is also significant:

• He agreed the Colorado law is constitutional but disagreed with the majority’s doctrinal placement.
• He would have “housed the relevant inquiry at step‑two of Bruen rather than step‑one,” requiring the government to show that the regulation is “longstanding” to benefit from the presumption of lawfulness. 121 F.4th at 133, 135 (McHugh, J., concurring).
• Nonetheless, all three judges in RMGO agreed that the law is a “presumptively lawful” regulation of commercial sale.

Since RMGO, the Tenth Circuit has invoked its methodology in at least three criminal cases:

• United States v. Jackson, 138 F.4th 1244, 1252–53 (10th Cir. 2025);
• United States v. Morgan, 150 F.4th 1339, 1346 (10th Cir. 2025); and
• United States v. Harrison, 153 F.4th 998, 1009 (10th Cir. 2025).

These cases, per the dissent, applied RMGO to reject Second Amendment challenges, reinforcing the centrality of the “presumptively lawful” safe harbor and its step‑one function.

C. Stare Decisis and Panel Precedent in the Tenth Circuit

The dissent also relies heavily on the Tenth Circuit’s rules of stare decisis—that is, the binding effect of prior published decisions on later panels. Key cases include:

• Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th Cir. 2009).
  • Holds that a subsequent panel cannot depart from a prior panel decision on the ground that certain arguments were not previously presented: “unless and until the holding of a prior decision is overruled by the Supreme Court or by the en banc court, that holding is the law of this Circuit regardless of what might have happened had other arguments been made.” Id. at 1130 (emphasis in original).
• United States v. Baker, 49 F.4th 1348 (10th Cir. 2022).
  • Reiterates the strictness of this rule: a three‑judge panel may not refine or discard prior panel holdings simply based on reevaluation of arguments.
• Haynes v. Williams, 88 F.3d 898 (10th Cir. 1996).
  • States that denial of rehearing en banc does not alter the binding force of prior circuit precedent, cited here for the proposition that RMGO “remains the law of the circuit until the Supreme Court says otherwise.” Id. at 900 n.4.
• United States v. Spedalieri, 910 F.2d 707 (10th Cir. 1990).
  • Emphasizes that district courts must follow circuit precedent.
• United States v. Maloid, 71 F.4th 795 (10th Cir. 2023).
  • Illustrates that lower courts must apply Supreme Court precedent “even when that precedent rests on shaky grounds,” underscoring the limited freedom lower courts have in “anticipating” doctrinal change.

These cases collectively support Judge Federico’s premise: only the Supreme Court or the en banc Tenth Circuit may overrule a prior panel decision like RMGO. A mere disagreement with the reasoning of RMGO, or a different set of party‑presented arguments, does not empower a later panel to chart a conflicting doctrinal course.

D. En Banc Review Standards

Under Tenth Circuit Rule 40.1(B), en banc rehearing is “extraordinary” and “disfavored,” appropriate only when:

• A case “involves a question of exceptional public importance,” or
• The panel decision conflicts with a decision of the United States Supreme Court or of the Tenth Circuit.

Judge Federico invokes the classic description from Commissioner of Internal Revenue v. Textile Mills Securities Corp., 117 F.2d 62, 71 (3d Cir. 1940), aff’d, 314 U.S. 326 (1941): where there is “a difference in view among the judges upon a question of fundamental importance, it is advisable that the whole court have the opportunity, if it thinks it necessary, to hear and decide the question.” He also notes that the Tenth Circuit’s internal practice of circulating proposed published opinions for comment is not a substitute for full en banc review in complex, high‑stakes cases.

V. The Doctrinal Clash: RMGO Versus Ortega

A. How RMGO Treats Commercial Sale Regulations

In RMGO, the Tenth Circuit held that laws “imposing conditions and qualifications on the sale and purchase of arms” fall into Heller’s category of “presumptively lawful regulatory measures.” The majority reasoned that:

• Such regulations do not implicate the “plain text” of the Second Amendment at Bruen’s step one.
• Thus, strictly speaking, the protected conduct of “keeping and bearing Arms” is not directly burdened when the law merely sets conditions on commercial transactions, at least where these conditions are not aimed at “abusive ends.”
• “Abusive ends” are understood, by reference to Bruen, to mean regulations that disarm law‑abiding, responsible citizens in a manner reminiscent of historically disfavored practices.

The RMGO majority evaluated several non‑exclusive factors to determine whether Colorado’s age restriction was adapted to “abusive ends” or instead a permissible condition on sale:

• The degree of discretion required by the regulation’s implementation;
• The existence and scope of analogous regulations adopted by other jurisdictions;
• The history of similar or related regulations; and
• Whether the regulation is tied to an “accurate determination of citizen responsibility.”

It ultimately concluded that Colorado’s age restriction did not implicate the Second Amendment’s core self‑defense right because it merely structured the timing and eligibility for commercial purchases, without disarming the general class of “law‑abiding, responsible citizens.”

B. How the Ortega Panel (as Described) Diverges

The dissent summarizes the Ortega panel’s approach in several key passages:

1. Step‑one coverage of commercial sales.
   • Ortega “starts with the premise that ‘acquiring, purchasing, and possessing firearms is a necessary predicate to keeping and bearing them.’” 148 F.4th at 1143.
   • On that basis, it concludes that “laws or regulations of commercial firearms sales are covered by the Second Amendment”—“precisely the opposite” of RMGO’s holding that “laws imposing conditions and qualifications on the sale and purchase of arms do not implicate the plain text of the Second Amendment.” Compare 121 F.4th at 120 with 148 F.4th at 1144.
2. Rejection of New Mexico’s argument about commercial sale carve‑outs.
   • New Mexico argued that the waiting period was a “condition or qualification on the commercial sale of arms” and therefore presumptively lawful under Heller and RMGO.
   • Ortega rejected this, stating that New Mexico’s position—that limitations on firearms sales or transfers do not implicate the Second Amendment—is “wrong.” 148 F.4th at 1144.
3. Attempted distinctions between waiting periods and “conditions or qualifications.”
   • Ortega suggests that “cooling‑off periods are not tailored to commercial sales.” 148 F.4th at 1146. The dissent finds this reasoning unclear, especially given that the statute is framed in terms of “buyers” and “sellers” and appears to exclude gifts.
   • The majority also reportedly analogizes waiting periods to price controls: a cooling‑off period is “not a condition or qualification for sale any more than the price of a firearm is.” 148 F.4th at 1147.
   • Further, Ortega hints that a regulation is not a “condition or qualification on commercial sale” merely because it “sometimes affects” commercial sales, arguing that otherwise “an outright ban on commercial sales would also be a condition or qualification… and presumptively lawful.” 148 F.4th at 1147.
4. Historical analysis and treatment of “waiting periods as a class.”
   • Rather than asking whether the New Mexico waiting period was adapted to “abusive ends,” Ortega is said to have “struck down waiting periods (apparently as a class) because they ‘are neither longstanding nor widespread practices, and diverge from history and tradition.’” 148 F.4th at 1149.
   • In a footnote, the majority purportedly redefines “abusive ends” as those “justified only by assuming that citizens cannot be trusted with their own rights.” 148 F.4th at 1149 n.7.

In Judge Federico’s view, this set of moves:

• Directly contradicts RMGO’s core holding that commercial sale conditions do not implicate the Second Amendment’s text at step one;
• Improperly elevates one factor used in RMGO—whether a regulation is “longstanding or widespread”—into a near‑dispositive requirement; and
• Recasts the “abusive ends” inquiry into a generalized distrust of citizen competence, diverging from Bruen’s original meaning.

C. The Matheson Dissent in Ortega and the Similarity to RMGO

The dissent references Judge Matheson’s dissent in the panel decision, which underscores the similarity between New Mexico’s waiting period and Colorado’s age restriction upheld in RMGO:

• New Mexico’s seven‑day waiting period is, in functional terms, a temporal restriction on when a buyer may complete a firearm purchase.
• Colorado’s law effectively imposes a “waiting period” of up to three years for individuals aged 18 to 20 (they must wait until turning 21).
• Both sets of would‑be purchasers must wait for conditions outside their control—the passage of time (age) or completion of a background check.
• Yet, RMGO upheld the Colorado law as a valid condition on sale, while Ortega struck down New Mexico’s waiting period.

Judge Federico notes that Colorado itself, now an amicus in support of en banc rehearing, fears that Ortega puts its age‑restriction law “back in jeopardy,” and potentially its own three‑day waiting period as well. The dissent lists other jurisdictions within the Tenth Circuit (Kansas, Oklahoma, Utah, and the federal government) that maintain age‑based restrictions on firearm purchases, some above age eighteen, raising the possibility that Ortega could invite renewed Second Amendment challenges to those laws.

D. Facial Versus As‑Applied Challenges

An additional doctrinal dispute concerns the scope of the relief granted in Ortega. The dissent suggests that even if some applications of New Mexico’s statute might be impermissible—for example, if it somehow applied to clearly non‑commercial transfers—that would not justify declaring “that the law is unconstitutional” on its face.

Citing Rahimi and Salerno, Judge Federico emphasizes that outside the First Amendment context, a facial challenger must show that “no set of circumstances exists under which the [challenged regulation] would be valid.” See Salerno, 481 U.S. at 745. Thus:

• If the law is properly characterized as regulating commercial “buyers” and “sellers,” it would plainly have constitutional applications under RMGO’s framework.
• At most, perceived overbreadth should lead to as‑applied relief or narrower constructions, not wholesale facial invalidation.

VI. En Banc Review and Institutional Concerns

A. Exceptional Public Importance

Judge Federico argues that Ortega satisfies Rule 40.1(B)’s “exceptional public importance” criterion on several grounds:

• New Mexico enacted the Waiting Period Act to address a documented public health crisis: unusually high and growing firearm death rates, dominated by suicides.
• Waiting periods are particularly aimed at reducing impulsive acts of violence and suicide by introducing a short temporal buffer between the decision to acquire a gun and its transfer.
• The panel’s decision disables New Mexico from pursuing this chosen method of addressing gun violence and suicide.
• Ortega appears to be the first Tenth Circuit case to strike down a firearms statute on Second Amendment grounds, giving it outsized precedential and symbolic importance.
• The case will have “widespread ramifications” as courts across the circuit confront new Second Amendment challenges to a variety of firearm regulations.

In other words, even if one set aside the emerging conflict with RMGO, the public safety and jurisprudential stakes of Ortega alone warrant en banc review.

B. Intracircuit Tension and Judicial Efficiency

The second set of considerations concerns the management of precedent and the efficient functioning of district courts:

• Where two published panel decisions appear to adopt inconsistent rules (RMGO and Ortega on whether commercial sale regulations implicate the Second Amendment at step one), district courts cannot legitimately “choose” between them; they must attempt to reconcile them or await clarification from the circuit.
• This invites a patchwork of interpretations and potentially inconsistent outcomes, particularly given the high salience and frequency of Second Amendment litigation.
• States like Colorado and New Mexico, which structure their firearm laws in reliance on existing precedent, face uncertainty and renewed litigation costs.
• Individuals—“responsible, law‑abiding citizens”—seeking to exercise their rights also suffer from unpredictable rules and shifting doctrinal ground.

En banc review exists, in part, precisely to address these problems by:

• Resolving apparent conflicts among panel decisions;
• Providing clear guidance on the governing legal framework; and
• Ensuring that high‑stakes constitutional rights do not depend on the “luck of the draw” in panel composition.

C. The Role of the Supreme Court and the Glass Petition

Some might argue that the Supreme Court will soon address similar issues, making en banc review unnecessary. Judge Federico points to the pending certiorari petition in NRA v. Glass, No. 24‑1185 (filed May 20, 2025), which challenges Florida’s law prohibiting 18‑ to 20‑year‑olds from purchasing firearms. That petition asks whether such age‑based purchase bans violate the Second Amendment.

However, the dissent characterizes it as only a possibility, not a certainty:

• The Supreme Court may deny certiorari or otherwise decline to provide timely guidance.
• If it does, the Tenth Circuit will be left with “unremedied confusion” between RMGO and Ortega and no immediate mechanism to resolve it.
• The circuit could, if it granted en banc review and then certiorari were granted in Glass, simply abate its own case pending the Supreme Court’s decision, preserving flexibility while signaling seriousness.

Judge Federico quotes Judge Learned Hand’s admonition in Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting): lower courts should not “embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.” The thrust: the Tenth Circuit’s job is to apply binding precedent, not to guess at where Supreme Court doctrine may go, and en banc review is the proper tool when panel decisions appear to diverge.

VII. Impact and Future Implications

A. For New Mexico and Waiting Period Laws

For New Mexico, the immediate impact is stark:

• The Waiting Period Act has been held unconstitutional by a published panel decision of the Tenth Circuit, which remains in effect after denial of en banc review.
• Absent further appellate developments (such as Supreme Court review), New Mexico is precluded from enforcing its seven‑day waiting period as enacted.
• More broadly, Ortega sends a signal—at least at the panel level—that firearm waiting periods are constitutionally suspect because they:
  • are “neither longstanding nor widespread”; and
  • “diverge from history and tradition.”

Depending on how subsequent panels and district courts interpret Ortega, waiting period statutes in other jurisdictions within the Tenth Circuit (e.g., Colorado’s three‑day waiting period) may face heightened Second Amendment scrutiny and potential invalidation absent compelling historical analogues.

B. For Age‑Based and Other Commercial Sale Regulations

Even more consequential is the potential ripple effect on other types of commercial sale regulations:

• Age restrictions: Colorado’s age‑21 purchase restriction, as upheld in RMGO, appears doctrinally similar to New Mexico’s waiting period in terms of restricting the timing and eligibility of firearm acquisition. If Ortega is read broadly, litigants may seek to re‑open challenges to such age limits, arguing that they too implicate the Second Amendment’s “plain text” and lack a sufficient historical pedigree.
• Licensing, background checks, and other conditions: Other conditions or qualifications on commercial sales—extended background check delays, processing moratoria, or cumulative waiting periods—may face renewed challenge. The degree to which they can still claim Heller’s “presumptively lawful” safe harbor is now contested within the circuit.
• State and federal reliance interests: Kansas, Oklahoma, Utah, and the federal government maintain age‑based restrictions on firearm purchases. If Ortega is read as narrowing or undermining RMGO’s safe harbor, it could destabilize the legal footing for these regimes.

C. For District Courts and Litigants

The denial of en banc review leaves district courts with a challenging interpretive task:

• They must reconcile RMGO (commercial conditions not implicating the Second Amendment’s text at step one) with Ortega (acquisition regulations do implicate the text and waiting periods are not presumptively lawful).
• Faced with apparent tension, some courts may emphasize:
  • The specific type of regulation (age‑based versus temporal waiting period);
  • The breadth and severity of the burden; or
  • Temporal priority (that RMGO came first) or subject‑matter specificity.
• This invites diverse, potentially conflicting interpretations across the circuit, effectively turning the question of Second Amendment coverage into a forum‑dependent issue until clarified.

For litigants:

• Individuals seeking to challenge regulatory conditions may cite Ortega as recognizing that acquisition and purchase are part of the Second Amendment’s protected conduct.
• Governments defending regulations will rely on RMGO’s characterization of “conditions and qualifications on the commercial sale of arms” as presumptively lawful and outside step one of Bruen.
• The resulting doctrinal ambiguity may encourage more aggressive litigation strategies on both sides, increasing volume and complexity of Second Amendment cases in the circuit.

VIII. Complex Concepts Simplified

A. What Is En Banc Rehearing?

Most appeals in a federal court of appeals are heard by a three‑judge panel. “Rehearing en banc” means that the case is reheard by all active judges of the circuit (or a large subset, in some circuits):

• It is reserved for “extraordinary” cases where:
  • An issue is of “exceptional public importance”; or
  • There appears to be a conflict with Supreme Court or circuit precedent.
• Granting en banc vacates the panel opinion and leads to a new opinion by the full court, which can resolve intra‑circuit conflicts and clarify doctrine.

B. “Conditions or Qualifications on the Commercial Sale of Arms”

This phrase comes from Heller, which listed certain “presumptively lawful regulatory measures,” including:

• Prohibitions on possession by felons or the mentally ill;
• Laws forbidding firearms in sensitive places (like schools or government buildings); and
• Laws “imposing conditions and qualifications on the commercial sale of arms.”

Examples of such conditions include:

• Requiring background checks before a sale can be completed;
• Requiring a license to sell firearms commercially;
• Minimum age requirements for buyers;
• Record‑keeping and reporting requirements for dealers.

The dispute in Ortega is whether a temporal waiting period between purchase and delivery is also such a “condition or qualification” (and thus presumptively lawful) or whether it is instead a direct burden on the Second Amendment right itself.

C. “Presumptively Lawful” and “Abusive Ends”

“Presumptively lawful” means:

• Certain categories of regulations are assumed, in light of history and tradition, not to infringe the core of the Second Amendment right.
• They can still be challenged in extreme cases, but the burden is higher and the presumption is in their favor.

“Abusive ends,” as used in RMGO (drawing on Bruen), refers to regulations that:

• Target law‑abiding, responsible citizens;
• Disarm them in a way that is inconsistent with historical understandings; or
• Resemble historical abuses, such as disarming disfavored groups.

A law that falls within Heller’s presumptively lawful categories but appears aimed at “abusive ends” might still be unconstitutional; otherwise, it may be upheld without full historical analysis at step two of Bruen.

D. The Bruen Two‑Step Framework

1. Step 1: Textual Coverage. Does the regulated conduct fall within the “plain text” of “the right of the people to keep and bear Arms”?
   • If not, the regulation is generally upheld without further historical inquiry.
   • RMGO treats many commercial sale conditions as ending the inquiry here.
2. Step 2: Historical Tradition. If the conduct is covered, the government must show that the regulation is consistent with the “Nation’s historical tradition of firearm regulation.”
   • This involves analogical reasoning to historical laws, typically around the time of the Founding or Reconstruction.
   • Ortega appears to situate waiting periods at this stage and finds them inconsistent with historical practice.

E. Facial Versus As‑Applied Challenges

• Facial challenge: The plaintiff argues that the law is unconstitutional in all its applications. Outside the First Amendment, this typically requires showing that there is “no set of circumstances” in which the law could be valid.
• As‑applied challenge: The plaintiff argues that the law is unconstitutional as applied to their specific conduct or circumstances, without asking the court to invalidate the law entirely.

Judge Federico suggests that the Ortega panel may have effectively granted facial relief where narrower, as‑applied relief would have been more consistent with Rahimi and Salerno.

F. Intracircuit Split and Stare Decisis

An “intracircuit split” arises when different panels of the same circuit appear to adopt conflicting rules of law. Under strong stare decisis rules:

• One panel cannot overrule another published panel decision.
• When conflicts arise, only the en banc court (or the Supreme Court) can definitively resolve them.

Judge Federico’s core concern is that Ortega and RMGO create such a tension about whether commercial firearms regulations implicate the Second Amendment’s “plain text,” and that denying en banc review leaves this unresolved.

IX. Conclusion: Significance of the Ortega En Banc Denial

The December 22, 2025 order in Ortega v. Lujan Grisham does not itself articulate new doctrine, but its effect is substantial:

• It leaves in place a panel decision that invalidates New Mexico’s firearm waiting period and takes a broad view of Second Amendment coverage for acquisition and purchase.
• It highlights, through Judge Federico’s dissent, an unresolved tension with Rocky Mountain Gun Owners v. Polis, which had treated age‑based purchase restrictions as presumptively lawful commercial conditions outside the Second Amendment’s plain text at step one of Bruen.
• It underscores the Tenth Circuit’s internal disagreement over how to integrate Heller’s “presumptively lawful” categories with Bruen’s text‑and‑history framework—whether at step one (as in RMGO) or step two (as suggested by Judge McHugh and implicitly embraced in Ortega), and with what consequences.
• It raises serious questions about the scope of permissible “conditions and qualifications on the commercial sale of arms,” potentially affecting age limits, waiting periods, and related regulations across the circuit.
• It illustrates the institutional stakes of en banc review: the balance between judicial economy and the need to clarify doctrine in areas of “exceptional public importance,” especially where constitutional rights and public safety intersect.

Two key takeaways crystallize from Judge Federico’s dissent:

1. The Second Amendment’s application to commercial sale regulations is now a central and unsettled issue in the Tenth Circuit. Waiting periods and age restrictions alike may be understood either as presumptively lawful “conditions and qualifications” or as direct burdens on the right to keep and bear arms requiring strong historical justification.
2. Until resolved by the Supreme Court or an en banc court, RMGO technically remains binding precedent, but Ortega complicates its application. District courts and litigants must navigate this uneasy coexistence, with significant implications for firearms policy and constitutional litigation in the Tenth Circuit.

In sum, while the en banc petition was denied, the controversy surrounding Ortega is far from over. The case stands as a focal point in ongoing debates about the extent of the Second Amendment, the role of courts in reviewing public safety regulations, and the proper use of en banc review to maintain coherence in circuit law.