NM federal judge refuses TRO on gun waiting period

Jul. 22—A federal judge on Monday refused to grant a temporary restraining order to bar enforcement of a new seven-day waiting period for purchasing firearms in New Mexico.

U.S. District Judge James Browning of Albuquerque, in an 104-page ruling, sided with attorneys for Gov. Michelle Lujan Grisham and state Attorney General Raùl Torrez in ruling against two gun owners who contended the state's Waiting Period Act violated their Second Amendment rights.

The ruling follows an hourslong hearing in June, during which experts on the history of guns in America testified on both sides. Attorneys on both sides couldn't be immediately reached for comment Monday evening.

The waiting period, among other gun-related measures supported by the governor and gun control advocates, was presented in federal court as a way to curb impulsive gun violence and address New Mexico violent crime rates. The law went into effect April 15.

While gun-related deaths in the United States were higher in 2022 than in any other year on record, "the situation is worse" in New Mexico with gun death climbing significantly in the last few years, the ruling stated.

The age-adjusted gun death rate increased by 87 percent between 2010 and 2021, the judge wrote, citing evidence presented at the June 27 hearing.

"The Defendants adduce significant evidence that waiting period laws may help reduce this tidal wave of gun violence," the ruling added.

The judge also noted testimony that the Waiting Period Act is likely to save about 37 lives per year.

"On balance ... the harm that the Defendants stand to suffer if the Court were to enjoin the Waiting Period Act — the loss of New Mexican lives — significantly outweighs the Plaintiff's threatened injury," Browning wrote. "Moreover, the public's interest in the preservation of dozens of New Mexican lives cannot be understated."

The Waiting Period Act, signed into law March 4 by the governor, makes it a misdemeanor to buy or sell a firearm before the required waiting period, and carves out five exceptions, such as those who hold a valid federal firearms license, concealed handgun license holders, law enforcement agents and sales between immediate family members.

The lawsuit challenging the law is still pending, but Browning found the plaintiffs weren't likely to succeed on the Second Amendment claims. That was a factor in his ruling to deny a temporary restraining order or preliminary injunction.

"The central question the Court must address here is whether the right ... to keep and bear Arms' encompasses the right to obtain firearms," Browning wrote. "In concrete terms, the Waiting Period Act does not limit an individual's ability to keep firearms in their home nor carry those firearms with them in public for self-defense."

Browning wrote that having to wait seven days, as required by the new law, to purchase a handgun is "minimally burdensome" on the plaintiffs' ancillary right to acquire firearms. And, he added, the waiting period is a "commercial firearm regulation" that is "presumptively Constitutional."

To obtain a court temporary restraining order or preliminary injunction, a plaintiff must also make "a clear and unequivocal showing it will likely suffer irreparable harm absent preliminary relief," the ruling stated.

Waiting a week to buy a handgun "is insufficient to qualify as irreparable harm," Browning wrote.

Browing added that "there is divergence of opinion among United State District Courts regarding whether the Second Amendment's plain text includes only a right to keep and bear arms, not a right to buy them."

Two appellate courts found that right didn't cover 'the conduct of purchasing a firearm' — the Ninth Circuit Court and the 5th Circuit Court.

"Applying this approach, the Court concludes that the Plaintiff's Second Amendment Claims fails because it doesn't cover the conduct of purchasing a firearm.

"The Supreme Court has repeatedly instructed that the 'most important rule in constitutional interpretation is to heed the text — that is, the actual words of the Constitution — and interpret that text according to its ordinary meaning as originally understood," the ruling concluded.

"Today and in 1791, the normal and ordinary meaning of 'keep' is to possess and the normal and ordinary meaning of 'bear' is to carry," Browning wrote.

In addition, the historical understanding "provides further confirmation that the Second Amendment was not drafted to protect the right to purchase arms."

A gun owner from Albuquerque joined a Farmington woman who owns guns in filing the lawsuit on April 15, the day the law went into effect.

Their attorneys argued in part that in order to keep and bear arms, a prospective gun owner needed to acquire the firearm in the first place and therefore purchasing a gun was covered by the Second Amendment.

Browning found their arguments ultimately "unpersuasive."