New Mexico Court of Appeals Tenth Circuit Mandate

The Decision Does Not Take Immediate Effect

As you know, earlier this week the United States Court of Appeals for the Tenth Circuit ruled in an NSSF^®-supported challenge that New Mexico’s seven-day waiting period for firearm purchases likely infringes on the Second Amendment by preventing the lawful acquisition of firearms. There appears to be some confusion about what this ruling means for retailers.

Please be aware: At this point in time the law is still in effect and retailers should comply with the law for now.

We are sending this alert to remind our members that the decision does not take immediate effect, as the Tenth Circuit’s mandate has not yet issued. According to the court’s rules, the earliest the mandate could issue is 21 days from August 19 (or on September 9), but it could take more time. First, the state could seek en banc (i.e., full court) rehearing of the decision which could delay issuance of the mandate. The state could also request an emergency stay of the ruling pending further proceedings in the Tenth Circuit. And, if en banc review were to be granted the 3-judge panel ruling would be vacated. NSSF will update its members when the mandate issues.

Even if the mandate issues, it is important to note that the Tenth Circuit remanded the case to the district court to craft a preliminary injunction against the law’s enforcement. The Tenth Circuit appeared to distinguish between individuals who pass the background check (i.e., receive a “proceed” from NICS) and individuals who receive a “delayed” response. NSSF would expect that the district court would issue a preliminary injunction in line with the Tenth Circuit’s ruling effectively allowing retailers to transfer firearms after an individual receives a “proceed” response from NICS. But because the waiting period was not declared unconstitutional as to individuals who receive a “delayed” response, the preliminary injunction will likely not bar enforcement of the law as to those individuals. It remains to be seen what the preliminary injunction will say about transferring after the 3-day period provided for in the Brady Act with no determination from NICS.

**This alert does not constitute legal advice. NSSF encourages FFLs seeking additional guidance to speak with their own attorney.**