First Circuit Decision Deepens Split on Waiting Periods

A three-judge panel on the First Circuit Court of Appeals has overturned a preliminary injunction against Maine’s 72-hour waiting period on most gun sales, claiming the law doesn’t actually implicate the Second Amendment at all. 

The district court judge had concluded that acquiring a firearm is encompassed in the right to keep and bear them, and rightfully noted that there were no historic analogues similar to Maine’s “cooling off period” at either the time the Second and Fourteenth Amendments were ratified. Yes, some gun buyers may have had to wait days or even weeks before the firearm they purchased from overseas manufacturers or even from U.S. gun makers located hundreds of miles away, but that was a byproduct of the slow pace of transportation and not a government-imposed edict. 

Rather than wrestle with that history, the First Circuit panel instead boldly concluded that the right to keep and bear arms does not encompass the right to acquire them. 

We agree with the Attorney General’s view that laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment’s “plain text.” The Amendment’s plain text guarantees an individual’s ability to keep and bear arms, which means to have and carry guns. The Act does not address this conduct. Rather, the Act imposes a limitation in some circumstances on when a person can acquire a firearm after the person purchased it. The Act thus regulates conduct that occurs before a person keeps or carries a gun. Accordingly, applying Bruen’s plain text analysis, the Act imposes conditions and qualifications on the commercial sale of firearms that do not directly restrict the textual rights protected by the Second Amendment.

By that metric, a 72-month waiting period would be just fine, which is absolutely ridiculous. The First Circuit decision also stands in stark contrast to what the Tenth Circuit recently held in Ortega v. Grisham, which challenged New Mexico’s 7-day waiting period. The Tenth Circuit argued that the right to keep and bear arms necessarily includes the right to acquire one, and that there is no history or tradition of gun ownership or regulation that supports an arbitrary waiting period before a buyer can take possession of their firearm. 

The First Circuit, on the other hand, maintains that the plain text of the Second Amendment doesn’t cover the acquisition of a firearm, but even if it did, since the Supreme Court has blessed “shall issue” licensing regimes for carrying a firearm, it’s also given its tacit approval to other laws that impose delays on gun owners. 

The Act resembles the “shall-issue” licensing laws and is unlike the discretionary “may-issue” law at issue in Bruen in this vital respect. The Act briefly delays acquisitions of firearms from commercial dealers. But it does not prevent a law-abiding and responsible citizen from obtaining and then keeping or bearing a firearm after fulfilling the waiting period requirement. In our view, this likely renders the Act a burden on, but not an infringement of, the Second Amendment right to keep and bear arms. It also means that our analysis should not proceed past step one of Bruen.

This is a real head-scratcher. The panel had already concluded that the law does not implicate the Second Amendment, but then admits that it does “burden” the exercise of the right. If that’s the case, then the panel needed to look to laws around the time of the Founding or the Fourteenth Amendment that addressed the same “why” and “how” of Maine’s waiting period law. But as the Tenth Circuit noted, waiting periods are thoroughly modern inventions, and no such analogue can be found in the history and tradition of gun ownership. So instead, the First Circuit came up with its tortured conclusion that waiting period laws burden, but don’t implicate, our right to keep and bear arms. 

The panel’s decision means that Maine will likely be able to enforce its waiting period, but it also makes it more likely that the Supreme Court will take this case on appeal. New Mexico declined to appeal its loss to the Supreme Court, but the plaintiffs in Beckwith v. Frey aren’t going to let this bad decision go unchallenged. The plaintiffs could seek an en banc review from the entire First Circuit, but they can also bypass that step and appeal directly to SCOTUS. 

If the First Circuit’s decision were to stand, states could impose almost all kinds of barriers to acquiring a firearm, including the same kind of discretionary laws that SCOTUS held were unconstitutional when it comes to bearing arms. The Supreme Court doesn’t have to take Beckwith on appeal, but given the split in the appellate courts I think there’s a very good chance that the justices will grant cert when they have the opportunity to do so. 

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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