The First and Tenth Circuits diverge on whether cooling-off periods infringe the Second Amendment’s text.
On October 25, 2023, a mass shooting in Lewiston, Maine claimed 18 lives. Law enforcement had known since May that the gunman’s mental health was deteriorating. Though he owned other firearms, he lawfully obtained the weapon used in the attack on July 6. By August, he had issued repeated threats to members of his Army Reserve unit that he would “shoot up” the base. He was hospitalized for a psychiatric evaluation and released. Two months later, those threats were carried out at a bowling alley and a café.
In 2024, the Final Report of the Independent Commission to Investigate the Facts of the Tragedy in Lewiston appeared, faulting both the military and law enforcement for not taking action to disarm and hospitalize the killer.
Even before the Commission’s report was published, Maine’s legislature enacted a statute aimed at anyone seeking to purchase a firearm: “Waiting Period. A seller may not knowingly deliver a firearm to a buyer pursuant to an agreement sooner than 72 hours after the agreement.” As the sequence of events shows, there was no connection between the perpetrator’s vile acts six months earlier and the 72-hour delay for firearm transfers.
In Beckwith v. Frey, decided on April 3, the First Circuit reversed the district court’s grant of a preliminary injunction against enforcing the new law. Those needing a firearm for protection against an immediate threat, however, were not assured. The court acknowledged a statement from the Maine Coalition to End Domestic Violence warning that arming potential victims could increase danger, and it noted that the Coalition offered “services” to safeguard victims during the seventy-two-hour waiting period. One might have found such assurances comforting for battered spouses facing deadly threats.
Writing for the court, Judge Seth Aframe reasoned that “laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment’s ‘plain text,’ which is understood to mean to have and carry guns.” Because the statute regulates activity that occurs before possession, it sits “outside the Second Amendment’s plain text.” Under this logic, nothing in the Amendment’s text would bar a statute that outright bans the transfer or delivery of a firearm from one person to another. The right to keep and bear arms does not necessarily entail a right to obtain them.
The court continued that the plaintiffs bore the burden of showing the law was “abusive” in line with Bruen’s footnote nine. It read footnote nine as suggesting that the full two-step analysis does not apply to “shall-issue” regimes because such laws delay, rather than deny, licenses while states ensure that guns are carried by law‑abiding, responsible citizens. Yet the Supreme Court had stated in footnote nine that “shall-issue regimes, which often require applicants to undergo a background check or to complete a firearms-safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law‑abiding, responsible citizens.’” It added that “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” Thus, wait times must be connected to requirements such as a background check, not merely to delay itself.
The Beckwith court then turned to Heller’s declaration that nothing in the opinion should be read as casting doubt on longstanding prohibitions on firearm possession by felons and the mentally ill, or laws prohibiting carrying in sensitive places like schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. The court read “longstanding” as applying to prohibitions, not to “laws imposing conditions,” so the waiting period need not be longstanding. (That point may be moot, given Bruen’s requirement for Founding-era analogues.) It also noted that a “condition” does not have to be a particularized criterion an individual must meet—the waiting period itself is a condition.
Finally, Beckwith stated that in other contexts the Supreme Court “strictly scrutinizes laws that directly restrict the exercise of fundamental rights but often reviews more deferentially laws that only impose incidental burdens on the exercise of those rights.” It cited the First Amendment but did not suggest that the Court would approve a waiting period as a blanket rule for exercising any right protected by the First Amendment.
Ortega v. Grisham (10th Cir. 2025), an opinion by Judge Timothy Tymkovich, stands in stark contrast to Beckwith. Ortega invalidated a New Mexico statute mandating that “a waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer.” The court held that “the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text.” When the text authorizes an act, it implicitly authorizes any necessary predicate of the act.
Moreover, Ortega continued, Heller’s reference to “longstanding prohibitions” modifies the phrase “laws imposing conditions and qualifications on the commercial sale of arms.” The waiting period is not a longstanding prohibition and it is not limited to commercial sales. Furthermore, “It is not a condition because it cannot be met by any action, and it is not a qualification because it is universally applicable…. The sale happens regardless, and the waiting period is just an artificial delay on possession.”
Nor could the state demonstrate that the law had appropriate historical analogues, including intoxication laws, license and permitting regimes, and targeted bans on carrying or possessing firearms by specific groups. The statute presumes that “anyone seeking to purchase a firearm can be presumed irresponsible or non‑law‑abiding, purely by dint of their intention to purchase a firearm.” That stands in contrast with the purpose of shall-issue licensing regimes and background checks, which aim to ensure that firearm purchasers are responsible, law‑abiding citizens.
Thus waiting periods become part of the growing list of Second Amendment restrictions that the Supreme Court should resolve, either through a direct case or via a broader principle of applicability.
It is worth recalling how “cooling-off” periods drew national attention as a supposed solution to violence by the mentally unstable. John Hinckley, Jr., purchased a revolver and shot President Ronald Reagan five months later. (Ironically, the attempted assassination occurred at the same Washington Hilton Hotel where an assailant later sought to shoot President Donald Trump and members of his cabinet on April 25.) To address this problem, Handgun Control Inc., later known as the Brady Center, pressed for a seven-day waiting period on handgun purchases, though without a background check. The NRA backed an instant background check on all firearm purchases from federally licensed dealers instead.
The outcome was the Brady Handgun Prevention Act of 1993—often misnamed. Its interim provision, 18 U.S.C. § 922(s), purported to compel state and local law enforcement officers to conduct background checks on handgun buyers, who could be cleared immediately or within five days. I had the privilege of arguing Sheriff Jay Printz v. United States (1997), in which the Supreme Court held that Congress cannot compel the states to administer this (or any other) federal regulatory program.
The Brady Act’s enduring provision, § 922(t), created the National Instant Criminal Background Check System (NICS). NICS provides for an immediate transfer of a firearm, but may delay approval for up to three days if NICS determines that the transfer would violate federal or state law. Because it instituted an instant check and eliminated a waiting period, the “Brady” Act could be portrayed as the “NRA” Act. Yet those days are behind us.
