2A Advocates Notch a Win in Fight Against Maine’s Waiting Period for Gun Sales

Even though Maine Gov. Janet Mills allowed a bill mandating a three-day waiting period on the transfer of firearms to take effect without her signature, the law has not yet been enforced thanks to an injunction slapped on the restriction by a federal judge. Thankfully, that will remain the case for the near term. 

On Thursday, the First Circuit Court of Appeals shot down a request by the state to remove the injunction and let the law go into effect, delivering a win to the 2A advocates and gun store owners who are challenging the law in court. In its decision, a three-judge panel on the First Circuit rejected Attorney General Aaron Frey’s request for a couple of reasons. 

Determining the likelihood of the Attorney General’s success in this appeal requires us to determine the likelihood that the district court itself erred in issuing a preliminary injunction. Because the case presents questions of first impression in an emerging area of constitutional law involving a legal standard that is difficult to apply and subject to varying interpretations, we are not persuaded that the Attorney General has made a “strong showing” that he is likely to succeed in demonstrating that the district court abused its discretion in granting preliminary injunctive relief, and the case does not present unusual circumstances involving a “particularly severe and disproportionate” harm to one side. Moreover, the Attorney General’s failure to seek expedited review of the stay motion or the appeal undercuts any claim that immediate relief from the injunction is required to prevent irreparable harm. Accordingly, we deny the request for a stay and reserve consideration of merits to the panel hearing the appeal.

Frey could take his appeal to an en banc panel of the First Circuit, but I doubt he’s going to get a warmer reception from a broader panel of judges. The attorney general could also appeal directly to the Supreme Court, but he’d face even stronger headwinds there given the makeup of the Court and the justices’ reluctance to weigh in on Second Amendment cases that haven’t been fully decided on the merits. 

Frey had argued that while the Second Amendment may protect the right to keep and bear arms, “numerous federal courts, including the Fifth and Ninth Circuits” have found it doesn’t apply to the purchase of firearms. That may be true, but other courts have determined that the right to keep and bear must also include the right to acquire a firearm. And as the First Circuit panel pointed out, the issue has not yet come up in that particular court of appeals, and whatever other appellate courts might have concluded doesn’t directly impact gun owners in Maine. Moreover, the 72-hour waiting period in Maine doesn’t actually prevent someone from purchasing a firearm. Instead, it impedes their ability to possess and carry one, which undoubtably does directly impact their Second Amendment rights. 

The attorney general also cited the Supreme Court’s language in Heller that “imposing conditions and qualifications on the commercial sale of arms” are “presumptively lawful regulatory measures,” but there’s a big difference between presuming something is lawful and actually looking at the historical record (or lack thereof) when it comes to delaying the lawful transfer of a firearm just because the state believes buyers need a cooling off period. There is nothing in the text of the Second Amendment or the national tradition of gun ownership that suggests arbitrary waiting periods preventing people from exercising their right to possess a firearm were the norm or even the exception in 1791 or 1868. Waiting periods are a modern invention, and a fair hearing under the Bruen test should lead the federal courts to establish that these artificial delays are a violation of our fundamental right to keep and bear arms.