7-26-2024 12:17am

Federal Judge Upholds New Mexico Seven Day Waiting Period for Gun Purchases

Chris Edwards Editor

On March 4, 2024, Governor Michelle Lujan Grisham signed into law House Bill 129, which made important amendments to the criminal offenses chapter of the New Mexico Statutes. Among those changes is a new mandatory 7-day waiting period per the New Mexico Department of Public Safety for the purchase of firearms. HB 129 created a new section of New Mexico’s statutes, § 30-7-7.3, Unlawful Sale of a Firearm Before Required Waiting Period Ends. Section 30-7-7.3 requires the following:

A waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer.
This waiting period shall include the period of time required to conduct a federal instant background check. If the background check takes longer than the 7-calendar-day-waiting period, the seller must wait to transfer the firearm until the background check is completed. If the background check is not completed within twenty days, however, the seller may—but is not required to—transfer the firearm to the buyer.
The firearm shall remain in the custody of the seller or the federal firearms licensee performing the federal instant background check during the entirety of the waiting period.
Unlawful sale of a firearm before the required waiting period ends consists of the transfer of ownership, possession, or physical control of the firearm from the seller to the buyer before the end of the required seven-calendar day waiting period, but does not include temporary possession or control of a firearm provided to a customer by the proprietor of a licensed business in the conduct of that business.
Each party to an unlawful sale of a firearm before the required waiting period ends is in violation of this section and may be separately charged for the same sale.
Each firearm sold contrary to the provisions of this section constitutes a separate offense under Subsection C of this section, and two or more offenses may be charged in the same information, complaint, or indictment and will be charged separately.
Whoever violates the provisions of § 30-7-7.3 is guilty of a misdemeanor.
Section 30-7-7.3 do not apply to:

A buyer who holds a valid federal firearms license;
A buyer who holds a valid New Mexico concealed handgun license;
A law enforcement agency;
Between two law enforcement officers authorized to carry a firearm and certified pursuant to federal law or the Law Enforcement Training Act; or
Between immediate family members; immediate family member is defined as a spouse, a parent, a child, a sibling, a grandparent, a grandchild, a great-grandchild, a niece, a nephew, a first cousin, an aunt or an uncle.

Gov. Michelle Lujan Grisham in a press release claimed she is encouraged by U.S. District Judge James Browning’s decision on Monday that preliminarily upheld the state’s Waiting Period Act.

“The judge’s decision confirms that New Mexico’s waiting period is likely constitutional and allows it to remain in effect,” Gov. Lujan Grisham said. “This 7-day cooling-off period makes our community safer by providing a critical buffer against impulsive firearms purchases and ensuring comprehensive background checks are completed. This law is a commonsense measure designed to reduce impulsive gun violence and address a federal background check gap.”

On March 4, the governor signed into law House Bill 129, Firearm Sale Waiting Period Crimes, establishing a statewide 7-day waiting period for the purchase of firearms. Judge Browning preliminarily upheld New Mexico’s 7-day waiting, rejecting an attempt by the National Rifle Association to block enforcement of the law while the case is litigated.

New Mexico’s waiting period helps ensure that firearms are not transferred to prohibited purchasers under the “Charleston loophole,” which allows gun purchases to move forward by default after three business days even if a federal background check has not been completed. The state law includes exemptions for concealed carry permit holders, federal firearms licensees, transactions between law enforcement officers and agencies, and immediate family members.