Wait Periods for Gun Purchases Make Comeback After 2022 Supreme Court Decision

A customer looks at a shotgun to purchase for home protection at the Get Some Guns & Ammo shooting range in Salt Lake City, Utah, in a file photo. George Frey/Getty Images

The June 23, 2022, U.S. Supreme Court ruling in New York State Pistol and Rifle Association v. Bruen has some courts reconsidering what truly constitutes a Second Amendment case.

Under the Bruen decision, gun laws must fit the plain text of the Second Amendment and match a similar law from the time the amendment was ratified to be ruled constitutional.

Prior to Bruen, courts used a means balancing test to determine whether the law’s intended purpose violated the amendment.

Since the ruling, many past decisions, such as licensing procedures and prohibitions on carrying firearms, have been thrown out.

This new test has gun safety advocates resurrecting waiting periods for gun purchases, which largely died out after the National Instant Criminal Background Check System (NICS) was put in place as a means of reducing deaths involving guns.

Currently, 10 states—Hawaii, California, Washington, Maryland, Minnesota, New Jersey, Rhode Island, Florida, Illinois, and Maine—and the District of Columbia require waiting periods for firearms purchases.

U.S. District Courts in Colorado and New Mexico have upheld the waiting periods in those states. However, the New Mexico case, Ortega v. Grisham, is ongoing.

California’s 10-day waiting period is being challenged by the Second Amendment Foundation. Gun rights activists say they are planning legal action in Maine over its recently adopted 72-hour waiting period.

The 1993 Brady Handgun Violence Protection Act mandated a five-day waiting period, which was rescinded in 1998 when the National Instant Criminal Background Check System began operating.

Some courts have ruled that the Second Amendment allows waiting periods since it regulates only the buying and selling of firearms, not the weapons themselves.

On Nov. 13, 2023, a Colorado judge ruled that the Second Amendment guarantees the right to keep and bear arms, but not the right to take immediate possession of a gun upon purchase.

In Rocky Mountain Gun Owners and Alicia Garcia v. [Colorado Gov.] Jared Polis, U.S. District Court Judge John L. Kane ruled that the plaintiffs failed to show significant harm from the enforcement of a three-day waiting period for a gun purchase in Colorado.

Garcia is a Colorado-based firearms instructor, range safety officer, competitive shooter, and gun collector.

Kane wrote that a waiting period does not infringe on the Second Amendment under the standard set by NYSRPA v. Bruen.

“From this reading of the plain text [of the Second Amendment], it is clear that the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered,” Kane wrote in the November ruling.

The Debate

Tom Grieve, a Wisconsin-based attorney and host of a YouTube channel specializing in the Second Amendment, said a required waiting period violates the concept of inalienable rights.

He said it infringes on the Second Amendment by virtue of the fact that the Second Amendment is the only right to which it applies.

“How long do you have to wait before you go to church [under the First Amendment]?” he asked The Epoch Times.

David Plank, communications director of Colorado Ceasefire, told The Epoch Times that no law is perfect and that the benefits of a waiting period outweigh the costs.

During the waiting period, people can avoid dangerous situations, stay close to family and friends, and access other self-defense tools, he said.

“There are other ways to protect yourself than buying a gun,” he said.

The Colorado plaintiffs say they were denied their Second Amendment rights and forced to expend extra time and money by a law that does little to prevent deaths or crime.

Garcia claimed the waiting period cost her business because she was unable to obtain a shotgun in time to attend an event in Virginia. She said she missed out on an opportunity to attract new customers.

Kane wrote that evidence presented by the state indicated that the waiting period could prevent deaths involving firearms.

“For the sake of clarity, saving approximately 100 people in Colorado this year outweighs the aggregate harm of minimal expenditures of time and sacrificed business opportunities,” Kane’s decision reads.

Plank, who is a gun owner, said he supports the waiting period.

He said his organization supports gun storage laws, extreme risk protection orders—such as red flag laws—and other measures.

“Our agenda is about gun violence prevention,“ he said. ”This was something that we felt good about.”

Opponents of the law say the data are vague and fail to conclusively show that any suicides or crimes were prevented by a waiting period.

A woman takes aim during the National Women's Range Day at Texas Gun Experience in Dallas, Texas, on March 9, 2024. Michael Clements/The Epoch Times

At the same time, waiting periods have cost domestic violence victims their lives, Colorado plaintiff Garcia said. Self-protection is the province of the individual, not the state, she said, vowing to appeal the decision.

“It’s not [a judge’s] position or place to determine the needs of others,” Garcia told The Epoch Times. “There are no limitations on the importance of my life.”

Under the law, a gun purchase can’t be completed until at least three days after a licensed gun dealer starts a background check, as required by state or federal law, or has received approval to transfer the gun and completed a background check, whichever is later.

The intent is to provide a “cooling off” period for people who may be suicidal or contemplating a crime. Backers say studies have shown waiting periods reduce suicides by 7 to 11 percent and homicides with guns by up to 17 percent.

Colorado Gov. Polis signed the law on April 28, 2023, and it went into effect Oct. 1.

Plank acknowledged that there are questions about the data. He said that for most people, data is only part of the decision-making process.

“It really depends on where you’re coming from. If you’re really adamant [on either side of the debate], you’re not going to be satisfied with any research that’s out there. The research shows some [safety] benefit, and that’s a good thing,” Plank said.  

Pro-gun supporters protest at the gun safety rally at the State House in Augusta, Maine, on Jan. 3, 2024. Joseph Prezioso / AFP

Colorado state Rep. Stephanie Luck, a Republican, is not convinced. She voted against the bill, saying the evidence gun safety advocates presented was unpersuasive.

She pointed out that the study did not show how many, if any, of the guns were obtained within three days of the death attributed to them.

They also could not show that waiting periods kept people from finding other means to harm themselves or others. She said she believes there’s another reason gun control groups are fighting for waiting periods.

“Waiting periods are not about safety but control,” Luck told The Epoch Times.

She said there are documented cases in which women were hurt or killed during waiting periods.

Garcia, the Colorado plaintiff, agrees. She said that, as a petite Hispanic woman, she views her gun as a vital tool.

“You can’t say [to a stalker], ‘Please don’t hurt me in the next three days,“ Garcia told The Epoch Times. ”My gun is the equalizer.”

Plank said waiting periods are likely to be instituted around the country as people look for other means of preventing deaths involving guns. So far, he said, waiting periods have been upheld in court.

Maine Rule

Maine has one of the newest laws, a 72-hour waiting period requirement, which became effective on Aug. 9.

Joshua Raines, vice president of Gun Owners of Maine, said his organization will ask a judge for an injunction against the rule he described as a “knee-jerk reaction” to the Oct. 25, 2023, mass shooting in Lewiston, Maine.

In that crime, an Army veteran with documented mental health issues killed 18 people and wounded 13.

Raines said the failure to enforce existing laws allowed that shooting to happen. Like Garcia, Raines said the waiting period will endanger people.

“For them to have to wait an additional amount of time [to acquire a gun] is unconscionable,” he said. “They could be waiting the rest of their lives.”