New Mexico Keeps Enforcing a Struck-Down Gun Waiting Period
New Mexico is still making approved buyers wait out a firearms waiting period that the Tenth Circuit has already held unconstitutional. On October 23, 2026, the Second Amendment Foundation and its partners filed a motion for preliminary injunction in NSSF v. Torrez, asking a federal court to block enforcement of House Bill 129 against buyers who clear the federal background check. SAF joined the National Shooting Sports Foundation, the National Rifle Association, several New Mexico industry and shooting sports groups, Right to Bear Arms, and private citizen Peter Hackett. The state's multi-day “cooling off” period applies even after the buyer's background check comes back approved. That gap between approval and possession is the core of the fight.
Key Details
The motion requests emergency relief. SAF argues that a court must act quickly because residents face charges for refusing to comply. The filing matters because it seeks to expand a prior win beyond the people who brought that case. Key facts from the filing and announcement:
- Case: NSSF v. Torrez, filed October 23, 2026
- Law challenged: New Mexico House Bill 129, the “cooling off” waiting period
- Trigger: buyer already approved through the state background check system
- Prior ruling: Ortega v. Grisham, where the Tenth Circuit held HB129 unconstitutional and remanded to the district court
- Remedy in Ortega: a permanent injunction protecting the named plaintiffs only
- Scope sought now: all SAF members and as many New Mexico residents as the court will cover
- Enforcement posture: the state has said publicly and privately that noncompliant buyers will face charges
- Plaintiffs: SAF, NSSF, NRA, New Mexico Firearms Industry Association, New Mexico Shooting Sports Association, Calibers Shooting Sports Center, Omni Tactical USA, Right to Bear Arms, Peter Hackett
SAF Senior Director of Legal Operations Bill Sack framed the motion as an emergency request. He said citizens forced to follow an unconstitutional law face an emergency by definition. SAF founder and Executive Vice President Alan M. Gottlieb accused the state of ignoring a court order and spending taxpayer money to defend a law already struck down on Second Amendment grounds. The motion argues the state will not honor the Tenth Circuit's holding for anyone beyond the Ortega plaintiffs unless a court orders it.
Background
The Second Amendment challenge to HB129 did not start with this lawsuit. The Ortega plaintiffs first took the law to court and won at the Tenth Circuit, which held the waiting period unconstitutional. The case went back to the district court, which entered a permanent injunction, but only for the people named in that case. That narrow remedy left everyone else subject to the same delay. New Mexico kept collecting and enforcing the wait against other buyers, even after the appellate ruling.
The legal framework for that fight comes from New York State Rifle & Pistol Association v. Bruen, decided by the Supreme Court in 2022. Bruen requires the government to justify a gun regulation by pointing to historical tradition, not by arguing that the rule serves public safety. Courts have since applied that test to a range of firearm laws. A waiting period that delays a lawful buyer after a clean check is the kind of rule the government must support with close historical analogues. Gun owners should understand that this is why waiting period challenges have gained traction in courts. The question is not whether the state can impose delay. The question is whether the state can prove that delay fits within the Second Amendment's historical scope.
Why It Matters for Gun Owners
If you live in New Mexico and buy a firearm, this case affects you directly. A buyer who passes the background check today still faces a waiting period under HB129 unless a court order covers that buyer. Only the Ortega plaintiffs currently hold a permanent injunction. Everyone else must assume the delay applies until a judge says otherwise. That assumption carries legal risk. The state has threatened charges for anyone who takes possession early.
Dealers and private sellers in New Mexico face the same problem. A licensed dealer who releases a firearm early could face state exposure, and that dealer will likely demand a written explanation before transferring anything. Retailers should expect customers to ask hard questions about timing, paperwork, and whether a sale completed inside the waiting window will hold up. Gun owners who travel to buy should also check current state rules before planning a trip. Watch the docket in NSSF v. Torrez. A ruling on the preliminary injunction motion would set the immediate terms for buyers. SAF members should confirm their membership status and keep records of every purchase, background check approval, and transfer date.
DownRange Analysis
This motion is strong on the law. The Tenth Circuit already did the hard work in Ortega. Asking the court to extend that holding to every New Mexico resident is a logical next step, and it puts the state in an awkward spot. Under Bruen, the state cannot defend a delay on policy grounds alone. It has to show a historical analogue. Courts have not treated that burden lightly, and a state that has already lost on the question has a difficult record to rebuild.
The market impact is real. Every day of delay costs dealers sales and costs buyers time and money. A clean background check should mean the buyer walks out with the firearm. For now, New Mexico gun owners should not treat the waiting period as optional. Know the rule, keep documentation, and talk to an attorney before you test it. If you get charged, call SAF or an attorney immediately, because the state has already said it intends to enforce.
