Government rarely concedes that its own law is unconstitutional, yet that is exactly what happened in Florida. In Dunn v. Glass, No. 8:25-cv-02264 (M.D. Fla.), Attorney General James Uthmeier and the other state defendants joined the plaintiffs — the National Rifle Association, two firearm retailers, and several individual NRA members — in a joint offer of judgment asking a federal court to declare Florida’s mandatory three-day firearm waiting period unconstitutional under the Second Amendment and to enjoin its enforcement permanently. I have argued for years that waiting periods are indefensible under the “text first, history second” framework of New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). Now the chief legal officer of the third-largest state in the country agrees, on the record.
On X, Uthmeier stated that, “Every government office, including mine, exists to protect your God-given rights as enshrined in the U.S. Constitution. That’s why we’re settling a landmark federal case that declares Florida’s 3-day firearm purchase waiting period unconstitutional under the Second Amendment.”
In Florida’s court filing, the offer of judgment submitted by Florida states:
The judgment shall declare as follows: Florida Statutes § 790.0655(1)(a), (2)(a)–(c), and (3)(a), and Article I, section 8(b) of the Florida Constitution impose a three-day waiting period between the purchase and delivery at retail of any firearm, subject to certain exceptions. Article VIII, section 5(b) permits any Florida county to impose a three-to-five-day waiting period between the purchase and delivery of any firearm occurring within that county. Those waiting period restrictions burden the right to keep and bear arms. As the government cannot meet its burden to establish a historical tradition of regulation that justifies an arbitrary waiting period unconnected to the time required to complete a background check, they are unconstitutional under the Second Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment. The Attorney General, as the chief state legal officer under the Florida Constitution, has concluded that the Waiting Period Provisions violate the Second Amendment to the United States Constitution, as made applicable to the State of Florida by the Fourteenth Amendment. The other Defendants in this case, being represented by the Attorney General, agree to be bound by the Attorney General’s conclusion that the Waiting Period Provisions are unconstitutional.
What the Concession Actually Does
Two layers of the Florida law were challenged. The first is Article I, Section 8(b) of the Florida Constitution, adopted by ballot measure in 1990, which imposes a three-day wait between the purchase and delivery of any handgun. The second is Florida Statutes section 790.0655, signed by Governor Rick Scott on March 9, 2018 — roughly three weeks after the Parkland School shooting on February 14, 2018 — which expanded that wait to cover all firearms. The statute forces a buyer to wait three days or until the background check clears, whichever is later, so the delay runs even when a clean background check returns instantly. A concealed-carry permit holder is exempt; almost everyone else is not.
The mechanism in this case’s resolution matters greatly. This is not a confidential, private settlement that quietly makes the case disappear. Instead, the parties filed a joint offer of judgment that asks the court to enter a declaratory judgment and a permanent injunction striking the waiting period. The court has not yet entered that final judgment, and there is open discussion about whether every elected state attorney across Florida’s twenty judicial circuits will fall in line. My read is that the holdouts, if any, will be few. But the precise legal posture is a concession plus a pending judgment, not a law already permanently erased.
There Is No Historical Tradition Available for Government to Defend a Mandatory Waiting Period
The plaintiffs’ argument tracks Bruen exactly, and it is the correct argument. In order to exercise the right to keep and bear arms, a person must first acquire a firearm. Thus, the plain text of the Second Amendment is implicated, and a forced delay is a burden on conduct protected by the plain text. The burden thus shifts to the government to identify a longstanding, continuous and representative historical tradition of comparable regulations reaching back to America’s founding. That tradition does not exist concerning mandatory waiting periods.
According to the complaint, the first waiting-period law in this country was not enacted until 1923, when California imposed a one-day delay on handgun sales to allow time for a background check. Even that law was a records-check delay, not a cooling-off period, and no state imposed a wait longer than necessary to run a check until the final decade of the twentieth century. Because the Second Amendment’s plain text covers the plaintiffs’ conduct, the waiting period is presumptively unconstitutional, and Florida cannot rebut that presumption. Under District of Columbia v. Heller, 554 U.S. 570 (2008), and Bruen, a regulation that first appears in 1923 and matures only in the 1990s is far too late to count as a historical analogue, and it fails Bruen’s “how and why” inquiry because no true cooling-off tradition was ever established tracing back to the 18th century.
The First-Amendment Test Florida Could Not Pass
As a thought experiment, the simplest way to see the defect in a modern-day gun control law is to apply the same sort of rule to another enumerated right found in the Bill of Rights. Imagine a statute telling a citizen he may not publish an op-ed, mail a petition to his government, or attend church for three days, so that he can cool off and reconsider whether he truly means it. No court in the country would tolerate it. We impose no waiting period on speech, worship, or on the press, because the right is the exercise, and a forced delay is a partial denial of it. The Second Amendment is not a second-class right, and a delay that would be laughed out of any First Amendment courtroom cannot survive when the burdened right involves a firearm. The citizen who fears a stalker, who sees a hurricane on the way, or who wants to defend his home tonight does not have three days to spare. In a world where “seconds count while police are minutes away,” it is fair to say that a three-day wait can become an eternity.
An Outlier Law Falls, and the Trend Holds
The strategic significance here is larger than Florida. As I have explained in other writings, the U.S. Supreme Court is hostile to outlier laws — regulations that only a handful of jurisdictions impose. Multi-day waiting periods are exactly that kind of outlier, surviving today in only a few jurisdictions. When a state’s own attorney general concedes that such a law cannot survive Bruen, that concession becomes citable authority that advocates, legislators, and judges elsewhere can rely on. Credit belongs to the plaintiffs, to Mountain States Legal Foundation and its partners at the NRA and the National Shooting Sports Foundation, and to a Florida attorney general willing to say in court what the Constitution requires.
John Commerford, Executive Director of the NRA Institute for Legislative Action, captured the stakes plainly:
Law-abiding Floridians should never be delayed from exercising their fundamental rights. This is a major victory, and we look forward to the court permanently striking down this restriction.
This is how the right is restored — not in one decisive blow, but in a steady accumulation of victories with each new precedent serving as a stepping stone for the next one. Florida continues to earn its nickname as the Gunshine State step-by-step. And this trend remains our friend.
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.