Second Amendment Roundup: A Tale of Two Waiting Periods

Key Takeaways

• Maine's 72‑hour waiting period survived First Circuit's Beckwith ruling.
• New Mexico's seven‑day waiting period was struck down by the 10th Circuit.
• Courts split on whether waiting periods are “conditions” or “qualifications” under Heller.
• Beckwith relied on Bruen’s footnote nine, treating waiting periods as non‑abusive.
• Ortega argued acquisition is core to the Second Amendment, echoing free‑press analogy.

Pulse Analysis

The recent appellate split over firearm waiting periods reflects a broader legal tug‑of‑war sparked by the Lewiston tragedy. In Beckwith v. Frey, the First Circuit treated Maine's 72‑hour delay as a neutral procedural condition, emphasizing that the Second Amendment protects the right to keep and bear arms, not the right to immediate acquisition. By invoking Bruen’s footnote nine, the court concluded that a short, universal waiting period does not constitute an abusive burden, especially when it does not deny a lawful purchaser a gun outright.

Conversely, the 10th Circuit in Ortega v. Grisham took a more expansive view of the Second Amendment, arguing that the right to acquire firearms is inseparable from the right to possess them. Citing the free‑press analogy, the court held that any prerequisite—such as a seven‑day waiting period—functions as a de facto prohibition lacking historical analogue, thereby violating the Bruen historical‑tradition test. The decision underscores a growing judicial willingness to scrutinize even modest delays as potential infringements, especially when they are not tied to background‑check processes.

The divergent rulings set the stage for a possible Supreme Court review, as lower courts grapple with defining the boundary between permissible regulation and constitutional overreach. States may now reassess waiting‑period statutes, weighing the risk of judicial invalidation against public‑safety goals. For policymakers, the key takeaway is that any waiting‑period proposal must be anchored in a clear historical precedent or linked to a concrete safety mechanism, such as background checks, to survive heightened scrutiny under Bruen and Heller.