Federal Judge Still Thinks New Mexico’s Seven-Day Gun Waiting Period Is Constitutional. He Blocked It Anyway Because the Tenth Circuit Tied His Hands.

Estimated reading time: 6 minutes

ALBUQUERQUE, NM — U.S. District Judge James Browning has granted summary judgment to the two New Mexicans challenging the state’s seven-day waiting period on firearm purchases and enjoined Governor Michelle Lujan Grisham and Attorney General Raúl Torrez from enforcing it against them, and he did it while writing that he still believes the law is constitutional.

The order in Ortega v. Grisham was filed August 27 and runs four pages. The NRA, which brought the case with MSLF in partnership with NSSF, posted the full order on X the next day and called it a “MASSIVE WIN.” Summary judgment means the judge decided the case on the law without a trial, finding no disputed facts that required one. Browning granted the motion filed by plaintiffs Samuel Ortega and Rebecca Scott, denied the state’s competing motion, and ordered the injunction to take effect immediately. Lujan Grisham and Torrez have since filed an appeal, as reported by KRQE, which also reports that the law exempted holders of New Mexico concealed carry licenses and law enforcement, that the seven-day clock included the time needed for the federal background check, and that lawmakers passed it after debating ways to address gun violence and suicides.

The law is N.M. Stat. § 30-7-7.3, which the order calls the Waiting Period Act. Enacted in 2024, it required buyers to wait seven days before taking possession of a firearm they had already purchased, even if they passed a background check on the spot. That carve-out for license holders tells you something. The state trusted a background check and a license enough to skip the wait entirely for one group of buyers, which makes it hard to argue the seven days did any safety work the background check was not already doing.

Ortega and Scott sued in May 2024 and asked Browning for a preliminary injunction. He denied it. On August 19, 2025, the Tenth Circuit reversed him in Ortega v. Grisham, 148 F.4th 1134, writing that “waiting periods are neither longstanding nor widespread practices, and diverge from history and tradition. Plaintiffs would overcome any presumption of constitutionality.” The appeals court sent the case back down with an injunction in place, and in December 2025 NRA-ILA announced the Tenth Circuit had let that victory stand. Both sides filed for summary judgment on April 20, 2026, and Browning heard argument on June 2.

At that hearing, the state argued that Browning did not have to follow the Tenth Circuit’s 2025 ruling because it came early in the case and was only a “preliminary” look at the law. Browning rejected that. The Tenth Circuit sits above his court, and when it decides a question, he has to follow the answer. He quoted the appeals court’s own words that a lower court “has no power or authority to deviate” from what the higher court tells it, and he added that this covers the reasoning in the opinion, not just the final instruction at the end. The Tenth Circuit had already said the waiting period fails the constitutional test, so that was the answer Browning had to apply. Lawyers call this the law of the case, which simply means a question decided earlier in a lawsuit stays decided. Then came the sentence the state will be reading on appeal: “Although the Court continues to believe the Waiting Period Act is constitutional, the Court is bound by the Tenth Circuit’s decision and the law of the case.” The judge who refused to block this law in 2024 is now the judge enjoining it, on the strength of a ruling he disagrees with. That is the state’s best witness telling it the argument is over in his courtroom.

The injunction is specific to the two plaintiffs. It bars the governor, the attorney general, their officers and agents, anyone acting in concert with them, and any state law enforcement officer who learns of the order from enforcing the Waiting Period Act against Ortega and Scott. The state must send notice of the order to the New Mexico Department of Public Safety by September 10, and DPS must post it on its website with a copy of the order attached. Browning will enter a separate final judgment. Joseph Greenlee and Erin M. Erhardt of the NRA and Carter B. Harrison IV of Harrison & Hart in Albuquerque represented the plaintiffs.

Now the state is appealing, and the appeal goes to the Tenth Circuit, the court that already found the law likely unconstitutional and whose published opinion is the reason Browning ruled against his own view. The governor and attorney general are entitled to take that shot, and the appeals court has not ruled on the final order. But they are asking the Tenth Circuit to walk back a decision the trial judge just told them he had no power to ignore.

More from USA Carry:

Waiting periods are a live fight well beyond New Mexico. SAF founder Alan Gottlieb, speaking about a similar challenge to Vermont’s 72-hour waiting period, put the principle simply: “The right to keep and bear arms doesn’t have a timestamp and should be afforded to anyone wishing to legally purchase a firearm.” A person who passes the federal background check has already cleared the bar the law sets for buying a gun. Making that person sit for another week is a tax on time, paid most heavily by the person who needs the gun soonest. Part of a serious self-defense mindset is understanding that the threat does not schedule itself around a state-imposed calendar.

I will continue tracking Ortega v. Grisham as the final judgment is entered and the state’s appeal moves to the Tenth Circuit.