A few days before Christmas Eve, the Tenth Circuit handed gun owners one of the biggest waiting-period wins of the post-Bruen era. On December 22, 2025, the court denied rehearing en banc in Ortega v. Grisham, No. 24-2121, 148 F.4th 1134 (10th Cir. 2025), leaving in place the August 19, 2025 panel decision that struck down New Mexico’s 7-day Waiting Period Act, N.M. Stat. § 30-7-7.3, as a likely Second Amendment violation. The panel decision now stands as the law of the Tenth Circuit — Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The next obvious target is Colorado’s own waiting-period regime.
What the Panel Actually Did
The panel opinion, written by Judge Timothy M. Tymkovich and joined by Judge Allison Hartwell Eid (with Judge Scott M. Matheson, Jr. dissenting), did two enormously important things at once.
First, it confirmed that the right to acquire a firearm sits inside the plain text of the Second Amendment. “The right of the people to keep and bear arms shall not be infringed.” To keep means to possess. To bear means to carry. You cannot keep or bear an arm you have not first acquired. You are not born with a gun in your hand. A law that blocks acquisition for a week necessarily burdens the right to keep and bear.
Second, the panel ran the historical inquiry that New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), commands — and found nothing. There is no founding-era tradition, no Reconstruction-era tradition, no analogue at any point in American history, of forcing an adult citizen who already cleared the federal background check to sit on their hands for seven days. No tradition, no constitutional analogue. Under Bruen, that ends the case.
This is why the win matters beyond New Mexico. We needed a clean appellate ruling that locks “the right to acquire” into the Second Amendment’s plain text. Once that flag is planted, the right to buy, the right to inherit, and the right to build all flow from the same textual root.
The Minneapolis Star Principle
If you want to understand why the panel got this right, run the comparison I have been pressing for years. In Minneapolis Star and Tribune Co. v. Commissioner of Revenue, 460 U.S. 575 (1983), the Supreme Court struck down Minnesota’s targeted use tax on paper and ink consumed by newspapers. A tax aimed at the inputs a newspaper must buy to publish is, functionally, a tax on publishing. The prerequisite is protected because the right is protected.
The same principle answers New Mexico. A 7-day government-imposed delay on the prerequisite is a 7-day government-imposed delay on the right. The First Amendment does not tolerate a 7-day wait before posting on X, printing a newspaper, retaining defense counsel, or showing up at a protest. The Second Amendment does not tolerate it either. A “cooling-off period” label does not change the constitutional math.
The Federico Dissent — and Why It Fails
Judge Richard E.N. Federico, joined by Judge Nancy L. Moritz, wrote the dissent from the denial of en banc rehearing. He led with this:
Today’s decision to deny en banc review is wrong for three reasons. First, it discards the exceptionally important public safety issues that surround New Mexico’s firearm regulation, which we have now held to be unconstitutional.
He then walked through New Mexico’s policy rationale:
In 2024, after experiencing high statewide rates of gun violence, New Mexico enacted the Waiting Period Act, which required a cooling-off period for firearm purchases. Although it contains several exceptions, the statute passed by the New Mexico legislature and signed by Governor Michelle Lujan Grisham generally requires sellers to wait seven calendar days before transferring a firearm to a buyer. New Mexico enacted the law in response to a troubling problem. According to the bill’s fiscal impact report, New Mexico had experienced 550 firearm-related deaths in New Mexico in 2022, over half of them attributed to suicides.
Read that carefully, because it is naked interest balancing — the methodology Bruen killed. The dissent never identifies a Founding-era twin for a 7-day delay on a lawful purchaser who already cleared a federal background check. There is no such twin. So the dissent substitutes a heckler’s veto in constitutional drag: because someone might misuse a firearm, everyone must wait. That argument is not allowed in the First Amendment context, and it is not allowed here. We do not silence the speaker because the listener might react badly. We do not delay the citizen’s gun purchase because a different citizen might commit a crime.
The dissent’s second move is to argue that Ortega conflicts with Rocky Mountain Gun Owners v. Polis, No. 23-1251 (10th Cir. Nov. 5, 2024), where a Tenth Circuit panel upheld Colorado’s age-21 purchase rule. My read is the en banc judges saw through that comparison. Rocky Mountain Gun Owners v. Polis is a “who counts as the people” case about 18-to-20-year-olds. Ortega is a universal time-delay on every adult purchaser in the state. Those are doctrinally distinct vehicles, and the active judges of the Tenth Circuit were right not to bundle them.
Colorado Is Next
Here is the part Colorado readers should circle. The Tenth Circuit’s reasoning in Ortega — that acquisition is inside the plain text and that waiting periods have no historical analogue — is now binding precedent across the circuit. Colorado has its own waiting-period statute. The doctrinal template to knock it out has been written, briefed, and litigated to a final en banc denial. The next plaintiff in Denver federal court does not have to invent anything; they have to cite Ortega.
That is why this December 22 order matters beyond Santa Fe. It is a circuit-wide ratification that the right to acquire is part of the right to keep and bear, that Bruen means what it says, and that “public safety” recitations cannot substitute for the history the Constitution requires. The waiting-period theory of gun control just lost its best chance to be rescued by a sympathetic en banc bench. Merry Christmas to the Second Amendment.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.