A Tale of Two Waiting Periods

On October 25, 2023, 18 people were killed in a mass shooting in Lewiston, Maine.  The killer’s declining mental health was known to law enforcement since that May.  On July 6, although he owned other firearms, he legally purchased the firearm that he would use in the attack.  By August, he repeatedly threatened members of his Army Reserve unit that he would “shoot up” the base.  He was hospitalized for psychological evaluation but released.  Two months later, he carried out his nefarious threats at a bowling alley and a cafe.

In 2024, the Final Report of the Independent Commission to Investigate the Facts of the Tragedy in Lewiston was released, faulting both the military and law enforcement for taking no action to disarm and hospitalize the killer.

Before the Commission report was even released, the Maine legislature enacted a statute targeting any person who would buy 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 timeline of events indicated, no relation existed between the perpetrator’s vile acts taking place six months earlier and the 72-hour firearm transfer waiting period.

In Beckwith v. Frey, decided on April 3, the First Circuit reversed the district court’s issuance of a preliminary injunction against enforcement of the new law.  For those needing a firearm for protection against an immediate threat, not to worry.  The court found it relevant that the Maine Coalition to End Domestic Violence submitted a statement warning that potential victims not obtain firearms for protection as the firearms were more likely to be used against them, and anyway the Coalition offered “services” to keep victims safe during the seventy-two-hour waiting period.  That must have been reassuring to battered spouses facing death threats.

In the opinion for the court, Judge Seth Aframe held that “laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment’s ‘plain text,'” which only “means to have and carry guns.”  Since the law regulates activity that takes place before that, it is “outside the Second Amendment’s plain text.”  Under that logic, nothing in the text of the Amendment would preclude a law that simply banned absolutely the delivery or transfer of a firearm from one person to another.  One’s right to keep and bear arms does not imply a right to obtain them.

Plaintiffs, the court continued, thus had the burden to show that the law was “abusive” in line with Bruen‘s footnote nine.  The court read footnote nine to mean that “the full two-step analysis did not apply to ‘shall-issue’ laws because these laws delay, but do not deny, licenses while states ensure that guns are being carried by law-abiding and responsible citizens.”  However, the Supreme Court only stated in footnote nine that “shall-issue regimes, which often require applicants to undergo a background check or pass 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.”  Wait times must thus be keyed to requirements like a background check, not just waiting for its own sake.

The Beckwith court next turned to Heller‘s statement that nothing in the opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  The court read “longstanding” to modify only “prohibitions,” not “laws imposing conditions,” and so the waiting period need not be longstanding.  (That issue may be moot, as Bruen requires Founding-era analogues.)  And it said that a “condition” need not be a particularized criterion that an individual must meet – the waiting period is itself 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 mentioned the First Amendment, but did not venture to suggest that the Supreme Court would approve a waiting period per se for exercise of any right protected by the First Amendment.

Ortega v. Grisham (10th Cir. 2025), an opinion by Judge Timothy Tymkovich, is in stark contrast with Beckwith.  Ortega invalidated a New Mexico statute providing 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” modified “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 meet its burden to show that the law had appropriate historical analogues, including intoxication laws, license and permitting regimes, and targeted group bans on firearm carry or possession.  The law assumes 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 contrasts with the purpose of shall-issue licensing regimes and background checks which have the purpose of assuring that firearm purchasers are responsible, law-abiding citizens.

So we can add waiting periods to the growing list of Second Amendment restrictions that the Supreme Court should resolve, either by a case on point or a principle of general applicability.

It’s worth recalling how “cooling off” periods came to national attention as a panacea for violence committed by the mentally deranged.  John Hinckley, Jr., purchased a revolver and shot President Ronald Reagan five months later.  (Ironically, the attempted assassination took place at the same Washington Hilton Hotel where an assailant sought to shoot President Donald Trump and cabinet members on April 25.) To solve that problem, Handgun Control Inc., later renamed the Brady Center, championed a seven-day waiting period on handgun purchases, albeit without a background check.  The NRA supported an instant background check on all firearm purchases from FFLs instead.

The result was the misnamed Brady Handgun Prevention Act of 1993.  Its interim provision, 18 U.S.C. § 922(s), purported to conscript state law enforcement officers to conduct background checks on handgun buyers, who could be cleared right away or within no more than within five days.  I was honored to argue Sheriff Jay Printz v. U.S. (1997), in which the Supreme Court held that Congress may not command the states to administer this (or any other) federal regulatory program.

The permanent provision of the Brady Act, § 922(t), established the National Instant Criminal Background Check System (NICS).  NICS provides for immediate transfer of a firearm, but may delay approval of the transfer for not more than three days, if NICS does not find that the transfer would violate federal or state law.  Because it created an instant check and no waiting period, the “Brady” Act may as well have been named the “NRA” Act.  But that’s all water over the dam now.