The Ortega Precedent: A Second-Amendment Right to Timely Firearm Acquisition and the Demise of Blanket Waiting-Period Laws

1. Introduction

Ortega v. Lujan Grisham, No. 24-2121 (10th Cir. Aug. 19, 2025), marks the most consequential Second-Amendment ruling since New York State Rifle & Pistol Association v. Bruen. In a split published opinion, the Tenth Circuit granted a preliminary injunction against New Mexico’s 2024 “Waiting Period Act,” which imposed a categorical, seven-day “cooling-off” period on nearly every retail firearm purchase.

The majority—authored by Judge Tymkovich and joined by Judge Eid—held that the statute likely violates the Second and Fourteenth Amendments because:

the right to “keep and bear Arms” necessarily encompasses the right to acquire them without undue governmental delay; and
a blanket waiting period is not a “presumptively lawful condition or qualification” on commercial sales, nor is it supported by the Nation’s historical tradition of firearm regulation.

Judge Matheson dissented, arguing that circuit precedent (Rocky Mountain Gun Owners v. Polis) requires treating waiting periods as permissible conditions on sale, absent proof of “abusive ends.”

2. Summary of the Judgment

Reversal of District Court. The panel reversed the denial of a preliminary injunction, holding that plaintiffs Ortega and Scott are likely to succeed on the merits of both facial and as-applied challenges (save for transactions slowed by unresolved background checks).
Historical-Textual Analysis. Applying Bruen and Rahimi, the court found no historical analogue for a population-wide waiting period divorced from individualized danger assessments.
Clarification of “Conditions/Qualifications.” The majority limited Heller’s “safe-harbor” for “conditions and qualifications on the commercial sale of arms” to narrow, objective, and satisfiable requirements (e.g., age thresholds, background checks, licensing fees)—not categorical delays.
Preliminary-Injunction Factors. Because constitutional injuries are per se irreparable and the public has no interest in enforcing an unconstitutional statute, all four Winter factors favored injunctive relief.
Remand on Scope. Guided by the Supreme Court’s 2025 decision in Trump v. CASA, the panel remanded for the district court to tailor relief no broader than necessary to redress plaintiffs’ injuries.

3. In-Depth Analysis

3.1 Precedents Cited (and Their Role)

District of Columbia v. Heller (2008) – Recognized an individual right to possess handguns and coined the phrase “presumptively lawful regulatory measures.” The panel distinguished Heller’s footnote, warning against over-reading the “commercial sale” safe harbor.
McDonald v. Chicago (2010) – Incorporated the Second Amendment against the states; cited to reject discriminatory historical analogues that pre-date the Fourteenth Amendment.
NYSRPA v. Bruen (2022) – Established the two-step text-and-history test. The majority used it to require New Mexico to proffer “representative historical analogues,” which it failed to do.
United States v. Rahimi (2024) – Emphasized focusing on whether modern laws and historical precedents are “relevantly similar” in how and why they burden the right; cited to reject broad prophylactic disarmament.
Rocky Mountain Gun Owners v. Polis (10th Cir. 2024) – Upheld a 21-year-old purchase age. The majority limited RMGO to objective eligibility requirements, whereas the dissent saw RMGO as controlling.
Additional analogues discussed: intoxication bans (Founding era), shall-issue licensing regimes, discriminatory antebellum race-based restrictions, and modern surety laws.

3.2 Court’s Legal Reasoning

Step One – Covered Conduct. Under the “predicate-act” canon, the right to bear arms logically presupposes the right to acquire them. A mandatory waiting period therefore “infringes” by temporarily dispossessing prospective owners.
Step Two – Historical Consistency.
- New Mexico’s analogues—drunk-carry bans, 18th-century licensing, racial disarmament—were rejected as not comparable: they either targeted identifiable high-risk sub-groups or were themselves unconstitutional.
- Waiting periods are a 20th-century innovation (California-1923; federal Brady Act-1993), adopted by only a minority of states—insufficient to qualify as a “historical tradition.”
Rejection of “Minimal Burden” Tests. The majority repudiated means-end balancing, equating a seven-day delay with prior restraint doctrines under the First and Sixth Amendments.
Differentiating “Conditions and Qualifications.” A valid condition must be satisfiable (background check, training) or individualized; a pure time delay is neither.
Abusive Ends Inquiry. Even assuming waiting periods were presumptively lawful, plaintiffs overcame the presumption because the Act universally presumes dangerousness without process.

3.3 Likely Impact of the Precedent

Immediate Reach. District courts within the Tenth Circuit (CO, KS, NM, OK, UT, WY) must treat blanket waiting periods as suspect. New Mexico must cease enforcement once the injunction issues.
National Ripple Effects. Thirteen other jurisdictions with waiting periods (CA, CO, DC, FL, HI, IL, MD, MN, NJ, RI, VT, WA, plus various localities) now face heightened litigation risk. A direct split arises with Ninth-Circuit panels that had tolerated waiting periods pre-Bruen.
Legislative Drafting. States seeking cooling-off periods must build in individual exemptions (imminent threat, prior clearance) or tether the wait strictly to background-check delays; otherwise laws likely fall.
Clarification of Heller Footnote 26. Ortega narrows the “presumptively lawful” category, signalling to courts that only eligibility requirements—age, mental competence, training—fit, not temporal embargoes.
Foundation for Supreme Court Review. The clean circuit split and the breadth of state reliance on waiting periods make Ortega a prime vehicle for certiorari.

4. Complex Concepts Simplified

Cooling-Off / Waiting Period: A mandatory interval between paying for a firearm and physically receiving it, intended to deter impulsive violence or suicide.
Condition or Qualification on Sale: Regulatory hurdle (e.g., age limit, background check, license) that must be satisfied before a sale may lawfully occur.
“Presumptively Lawful” (Heller): A shorthand for categories of gun regulation the Supreme Court thought obviously valid; the presumption can be rebutted if a law is put to “abusive ends.”
Bruen Two-Step Test: Step 1 – Does the Second Amendment’s plain text cover the regulated conduct?
Step 2 – If yes, is the regulation consistent with the Nation’s historical tradition?
Historical Analogue: Comparable historical law showing the Founding generation accepted a similar burden for a similar reason.
Facial vs. As-Applied Challenge: “Facial” attacks the statute in every application; “as-applied” challenges the law only in the plaintiff’s specific circumstances.
Preliminary Injunction: Emergency court order preserving the status quo pending final judgment; requires showing likely success on the merits and irreparable harm.

5. Conclusion

Ortega v. Lujan Grisham crystallizes a potent principle: the Second Amendment safeguards not merely possession and carriage, but also the timely acquisition of firearms. By striking down New Mexico’s across-the-board waiting period, the Tenth Circuit tightened the definition of permissible “conditions and qualifications” and emphasized that governments may not impose blanket, time-based restraints without strong historical pedigree or individualized justification.

“The government cannot delay the exercise of a right simply because it believes citizens might misuse it without time to reflect.” —Ortega, slip op. at 15

Unless reversed by the Supreme Court, Ortega endangers waiting-period statutes nationwide and signals to legislatures that future gun regulations must align closely with historical analogues and respect the immediacy of constitutional rights. At a broader level, the case reinforces the post-Bruen jurisprudence: text and history now dominate Second-Amendment analysis, and modern policy intuitions—however well-meaning—cannot substitute for constitutional fidelity.