A Predictable Result From an Unpredictable Framework
On April 3, 2026, the U.S. Court of Appeals for the First Circuit unanimously reversed a district court order enjoining Maine’s 72-hour waiting period for firearm purchases in Beckwith v. Frey. The opinion, authored by Judge Seth R. Aframe, represents the latest — and perhaps most analytically strained — effort by a federal appellate court to uphold a firearms restriction while nominally applying the framework established in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
The decision deepens an existing circuit split with the Tenth Circuit, which struck down New Mexico’s seven-day waiting period in Ortega v. Grisham, and may accelerate Supreme Court review.
Background
Maine enacted its 72-hour waiting period in 2024 following the October 2023 Lewiston mass shooting that killed eighteen people. The law requires a three-day delay between purchase and delivery of a firearm, with exemptions for law enforcement. Plaintiffs — individual gun owners, dealers, and shooting organizations — represented by Paul D. Clement and Erin E. Murphy, filed suit. The district court applied Bruen’s two-step framework, found the waiting period implicated the Second Amendment’s plain text, concluded that Maine had failed to identify a supporting historical tradition, and granted a preliminary injunction.
The First Circuit’s Novel Analytical Move
The panel held that Maine’s waiting period does not regulate conduct covered by the Second Amendment’s plain text because the law targets the acquisition of firearms — conduct that occurs “before a person keeps or carries a gun.”
This is analytically untenable. You cannot keep a firearm you have been prevented from possessing. The right to keep and bear arms necessarily encompasses the right to acquire them — just as the Seventh Circuit recognized in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), that the Second Amendment protects ancillary activities like firearms training and ammunition purchases. A three-day prohibition on taking possession of a lawfully purchased firearm is, functionally, a three-day ban on exercising the right itself.
The Incoherent “Burden” Category
Perhaps more troubling is the opinion’s attempt to create a middle tier within Bruen. The court acknowledged that laws falling outside the plain text may still “burden” the right to keep and bear arms, and that such laws are only “presumptively constitutional.” But this formulation is logically incoherent: if a regulation burdens the right to keep and bear arms, then by definition it touches conduct protected by the Second Amendment’s plain text.
The First Circuit has effectively invented a sub-constitutional holding pen — a category of regulations that restrict a fundamental right but escape meaningful judicial review. This is interest balancing by another name, precisely the methodology the Supreme Court rejected in Bruen and in District of Columbia v. Heller, 554 U.S. 570 (2008).
Interest Balancing Through the Back Door
The opinion’s reliance on social science reinforces this concern. The court devoted multiple pages to the purported benefits of cooling-off periods in reducing suicides and crimes of passion — the kind of empirical policy analysis that Bruen explicitly displaced. When a court begins by cataloging the social costs of firearms misuse, it is conducting means-ends scrutiny regardless of what label it applies.
Judge Aframe teaches First Amendment law at the University of New Hampshire. One wonders whether he would endorse a 72-hour waiting period before a citizen could publish an opinion piece or register to vote. The disparity in treatment between the First and Second Amendments is the point.
A Circuit Split That Demands Resolution
The First Circuit’s decision stands in direct tension with the Tenth Circuit’s ruling in Ortega v. Grisham, which struck down New Mexico’s waiting period on the ground that cooling-off periods lack any historical analogue in the founding era. With the circuits now divided, the case for Supreme Court review is strong. Clement and Murphy have the appellate firepower to bring this to the Court’s attention, and the doctrinal mess may provide exactly the kind of confusion the Court prefers to resolve sooner rather than later.
The Fundamental Problem
There is no historical tradition of imposing blanket waiting periods on the acquisition of firearms. Founding-era restrictions on arms possession were always individualized — tied to specific determinations of dangerousness, not applied as a universal condition on every citizen exercising a fundamental right. The First Circuit’s effort to avoid this straightforward conclusion required constructing an analytical framework the Supreme Court never endorsed and that contradicts Bruen’s clear instructions. The First Circuit’s reasoning is unlikely to survive.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.