First Circuit wonders if a waiting period to buy guns is constitutional

BOSTON (CN) — Maine’s 72-hour waiting period for purchasing a gun violates the Second Amendment, a group of impatient firearm buyers and sellers told the First Circuit Monday — but after an hour of the three-judge panel aiming rapid-fire questions at both sides, it remained unclear which one hit the target.  

Waiting periods ranging from 3 to 14 days have been adopted in 9 other states plus the District of Columbia (California, Colorado, Florida, Hawaii, Illinois, New Mexico, Rhode Island, Vermont and Washington). In addition, Maryland, Minnesota and New Jersey impose waiting periods specifically for handguns.

The Maine legislature adopted the 72-hour delay in April 2024 in hopes that it would reduce the state’s suicide rate, based on studies showing that states with waiting periods had 51% fewer suicides and that 70% of suicide survivors attempted suicide within an hour of first thinking about it.

Of the 178 firearm deaths in Maine in 2021, 158 were suicides. One study estimated the 72-hour waiting period could prevent 12 suicides annually.

The waiting period runs alongside background checks and includes exceptions for law enforcement, security personnel, gun dealers, certain private sales, such as transactions between family members and antiques.

A lower court issued a preliminary injunction against the law, finding it likely violated the Second Amendment. On appeal, Maine argued that the amendment protects the right to “keep” and “bear” arms, but doesn't address purchasing them.

But in order to keep and bear arms, “you gotta be able to get a firearm in some fashion,” objected U.S. Circuit Judge O. Rogeriee Thompson.

Christopher C. Taub, Maine’s chief deputy attorney general, argued that the Second Amendment is implicated only if a limit on purchasing guns “meaningfully impairs” the right to keep and bear them, such as if there were a 25-year waiting period.

But “it doesn’t make any sense” to claim that the Second Amendment isn’t implicated, argued the plaintiffs’ lawyer, Erin Murphy of Clement & Murphy in Washington, D.C. “The only thing this law is doing is restricting possession … The state doesn’t care about the transaction. Or the legal title. They care about possession.”

Murphy commented that one of her clients “bought the gun, paid for it, and registered the sale. She just couldn’t take it home.”

Taub next argued that not everyone has a right to a gun, because “the Second Amendment applies to people who are law-abiding and responsible.”

U.S. Circuit Judge Lara Montecalvo replied, “Your argument is the waiting period is checking on whether people are law-abiding, and I don’t see that.”

But Taub said the point of the waiting period is to make sure that people are responsible, including that they’re not in a mental health crisis. “The Supreme Court says you can wait to make sure people are safe.”

Thompson said the law wouldn’t help in the case of a person who already owned another gun, and U.S. Circuit Judge Seth Aframe pointed out that the law had exceptions, including for unadvertised sales.

“It feels like swiss cheese,” Aframe said. “If I have an impulse problem, there are other ways I can get a gun. You’re taking a sledgehammer to a lot of people who are law-abiding and responsible but not necessarily solving for other people. You’re creating a lot of problems without a solution.”

But Taub said the law was a solution. “Waiting periods work,” he replied, citing a number of uncontroverted studies. “Plus, a person acting rationally is not going to find a person who’s not advertising and might have a gun; they’ll go to a dealer.”

Murphy argued that under the Supreme Court’s 2022 Bruen decision, it doesn’t matter if the law “works” because a court isn’t supposed to balance interests and judge what’s a good policy; it’s supposed to ask if there are early American historical parallels — and early America imposed no waiting periods and had very few gun suicides.

Taub countered that the law paralleled early licensing requirements and laws intended to keep guns away from drunks, and that it was no different from background checks and required safety classes.

But Montecalvo noted that with background checks and classes, “there’s something you have to do. Here, you just wait three days.”

Murphy picked up on this point. “There’s nothing individualized during the three days,” she said. “The tradition is of differentiating people in good mental health from others.”

But Aframe noted that “Maine’s science says that waiting three days has indicia of proving responsibility, just like a safety class proves responsibility.”

And Thompson, a Barack Obama appointee, observed that “people need safety classes in order to be responsible. In order for us to tease out who has a crisis, we wait three days; that’s how you tease it out.”

Murphy responded that a waiting period “doesn’t fit with the historical tradition of doing something to ensure” responsibility. “At the end of three days, everyone gets the firearm. They don’t know. The state has not assured itself. They haven’t done anything.”

In the end, Aframe and Montecalvo — who were both appointed by President Biden — seemed flummoxed by how to frame the issue. Aframe wondered if the right to bear arms meant the right to bear them immediately or merely the right not to be “meaningfully impaired.” And Montecalvo agreed that “drunks and waiting periods are both attempts to eliminate irresponsible people,” but it wasn’t clear if they were equivalent or if the state had to take individualized action rather than simply putting everyone in the state on hold for 72 hours.

“I’m having trouble with how do you know the question to ask,” she said.