The constitutionality of Colorado’s three-day waiting period on firearm purchases faces a critical test next week as U.S. District Judge John L. Kane prepares to hear oral arguments in a lawsuit challenging the law. The case follows a recent Tenth Circuit Court of Appeals ruling that struck down New Mexico’s seven-day waiting period, declaring it a violation of the Second Amendment.
Background: Tenth Circuit’s Rejection of New Mexico’s Waiting Period
Two years ago, the Tenth Circuit ruled in Ortega v. Grisham that New Mexico’s seven-day waiting period on gun sales infringed upon the constitutional right to keep and bear arms. The court emphasized that the Second Amendment includes the right to acquire firearms, and that New Mexico failed to justify the waiting period by pointing to any historical laws analogous to such a restriction.
The appellate court concluded that cooling-off periods impose an unconstitutional burden because they delay lawful acquisition without fitting into any historically recognized exceptions. This precedent directly challenges similar laws, including Colorado’s three-day waiting period established under HB 23-1219.
Colorado’s Waiting Period Law and Its Justification
Colorado’s statute explicitly aims to create a “cooling off period” to prevent impulsive firearm violence. The law delays most firearm transfers by three days, mirroring New Mexico’s approach but with a shorter duration. Both states argue that these waiting periods are conditions on commercial sales, which the Supreme Court has generally treated as presumptively constitutional.
However, the Tenth Circuit in Ortega rejected this argument, noting that a waiting period is not a mere condition of sale like price or payment terms. Instead, it artificially delays possession after the sale is complete, infringing on Second Amendment rights.
Judge Kane’s Agenda Suggests He Seeks Legal Grounds to Uphold the Law
Legal observers, including National Association for Gun Rights’ Hannah Hill, have noted the unusual detail in Judge Kane’s agenda for the upcoming hearing. It appears the judge may be signaling skepticism about the waiting period’s constitutionality but is inviting Colorado’s attorneys to provide arguments that could justify the law under existing precedent.
One potential avenue Kane is exploring involves another Tenth Circuit case, RMGO v. Polis, which upheld Colorado’s ban on firearm sales to adults under 21. That ruling treated the age restriction as a lawful condition on sales, seemingly at odds with the Ortega decision’s emphasis on the right to acquire firearms. However, Ortega itself criticized RMGO for not fully addressing the scope of conditions and qualifications on firearm sales.
Legal Tensions Between RMGO and Ortega Cases
The RMGO ruling concluded that limiting sales to those over 21 was a presumptively lawful condition or qualification. Yet, it declined to define the full extent of rights related to keeping and bearing arms. In contrast, Ortega underscored the need to scrutinize whether such conditions impose unconstitutional burdens, especially when they delay possession.
This tension complicates the legal landscape for Colorado’s waiting period. While RMGO offers some support for upholding restrictions framed as sales conditions, it does not address waiting periods specifically or the historical context required to justify them.
Historical Context and Constitutional Burdens
Both the New Mexico and Colorado waiting periods face challenges due to their lack of historical precedent. The courts have emphasized that longstanding traditions and historical practices are critical in assessing Second Amendment restrictions. Waiting periods, whether three or seven days, are relatively recent legislative inventions without deep roots in American legal history.
This absence of historical grounding weighs against their constitutionality, as the courts require more than legislative convenience to justify burdens on fundamental rights.
What’s Next: Oral Arguments and Potential Outcomes
With oral arguments scheduled for next week, attention turns to whether Colorado’s attorneys can present a compelling case that distinguishes their law from the New Mexico precedent or aligns it with permissible conditions on sales recognized by the courts.
Given the Tenth Circuit’s prior rulings and Judge Kane’s detailed agenda, the state faces an uphill battle to uphold the three-day waiting period. The judge’s request for help in finding legal grounds suggests he may be leaning toward striking down the law unless the state can provide a robust justification.
Conclusion: A Pivotal Moment for Second Amendment Rights in Colorado
The challenge to Colorado’s gun waiting period is poised to test the boundaries of Second Amendment protections within the Tenth Circuit. The case highlights ongoing debates over how far states can go in regulating firearm acquisitions without infringing constitutional rights.
As the court weighs historical precedent, legal definitions of sales conditions, and the burden imposed on gun owners, the outcome could have significant implications for similar laws nationwide. For now, all eyes are on the upcoming hearing and whether Colorado’s waiting period will survive judicial scrutiny.
Source: Read the original reporting.
