Litigation Highlight: Maine Judge Throws Out State Waiting Period Law

Following the October 2023 Lewiston shootings, the deadliest mass shooting in Maine history, state legislators debated a number of changes to Maine gun laws.  Governor Janet Mills signed several gun reforms into law in spring 2024 and allowed a 72-hour waiting period for all gun purchases in the state to take effect without signing it.  At the time, Mills said that she hoped the waiting period would “be implemented to accomplish its intended goal of preventing suicide by firearm without overburdening our outdoor sports economy and the rights of responsible gun owners.”  Less than a year after it became law, the waiting period has been enjoined on Second Amendment grounds.

On February 13, Judge Lance Walker granted a preliminary injunction of the law in Beckwith v. Frey after finding that it could not pass muster under Bruen’s historical test.  Judge Walker first concluded that the waiting period implicated conduct protected by the Second Amendment.  Namely, he determined that “[c]itizens wishing to purchase a firearm are dispossessed of one for 72 hours exclusively by operation of the Act’s requirement that everyone be subjected to a ‘cooling off’ period, even those who have passed an instant background check at the FFL dealer’s counter.”  This was so, Judge Walker wrote, because “[a]cquiring a firearm is a necessary step in the exercise of keeping and bearing a firearm.” 

While the opinion noted that the Supreme Court in Heller endorsed “laws imposing conditions and qualifications on the commercial sale of arms,” the court found that this presumptive approval “does not automatically extend to a standardless, temporary disarmament measure.”  In other words, while background checks that delay sales only for those whose records are flagged may be presumptively permissible, a waiting period for all gun sales does not fit within the Heller safe harbor.  Indeed, Judge Walker repeatedly emphasized that the Maine waiting period law “applies no standard at all, . . .  [and certainly no] evaluative standard to determine whether individual buyers should have their rights suspended.”  Thus, the law could not come within Bruen’s approval of shall-issue licensing rules because it does not include objective risk criteria for imposing a cooling-off period—rather, it simply states that all prospective purchasers must wait.

Moving on to the next step of the analysis, the court found the law inconsistent with the American historical tradition of gun regulation.  In a footnote, the judge noted that his decision was not based on legislative irrationality:  

Suffice it to say that the objectives of the Act are not arbitrary and capricious such that they would offend the Fourteenth Amendment but for the overlay of Second Amendment jurisprudence that steers my review. Beyond that observation, however, it is emphatically not my assigned role to engage in an analysis that involves a comparative weighing of respective interests.

The court applied a more nuanced approach given that, at the Founding, “[f]or most persons, the immediate, impulsive purchase of a firearm was not an option given the lack of access to a seller or even the funds to make a purchase.”  Maine offered two potential historical analogues: state licensing laws that often include background checks, and prohibitions on carrying weapons while intoxicated.  The judge found that both potential analogues contemplated an individualized assessment of risk based on personal characteristics, and that “[a] near globally-applied waiting period detached from narrow and definite standards departs from these approaches.”  Thus, the court held that the plaintiffs were likely to succeed on the merits of their Second Amendment claim.  Finding that other factors in the preliminary injunction framework supported plaintiffs’ motion, the court granted the requested relief.

Judge Walker’s opinion suggests that, under Bruen and Rahimi, background checks are constitutional while waiting periods (which do not contemplate or require any personalized inquiry but apply on a blanket basis) are not.  Maine is one of 11 states with a waiting period in place.  Maine and several other states use 72 hours—which is the shortest waiting period nationwide.  On the other end of the spectrum, Hawaii imposes a 14-day waiting period and California, D.C., and Washington require 10 days.  The reasoning in Beckwith, then, necessarily casts doubt on all laws that require a waiting period equal to or longer than Maine’s without employing some form of individualized inquiry.

The historical analysis in the opinion, however, leaves something to be desired.  The judge first notes that the “more nuanced” approach applies under Bruen and Rahimi because “there is no readily comparable precedent [to waiting periods] before the Twentieth Century.”  Rather, at the Founding and through the 19th century, “impulsive purchase of a firearm was not an option . . . [and] persons bent on mayhem or self-harm [] would have to rely on whatever weapons were at hand or obtain a firearm by means other than a purchase at a local gun shop.”  This seems a concession that the historical tradition included a de facto, universal period during which most people who wanted to obtain a firearm could not simply go out and buy one—rather, the process took time.  Is this aspect of the tradition not itself a potentially analogous limitation on exercising the Second Amendment right, rather than merely part of the threshold inquiry about how to conduct the analogical inquiry?

In the context of age restrictions, courts and scholars have accounted for background historical realities in determining whether, for example, those between the age of 18 and 20 would have been able to purchase firearms pursuant to principles of contract law.  Similarly, the relevant historical tradition in Beckwith might include any evidence about how long commercial gun acquisition took at the Founding or in 1868—at least, such evidence should be considered within the second step of the Bruen inquiry.  This way, the analysis would appreciate the fact that practical realities may have removed the necessity for anything similar to a waiting-period restriction throughout large periods of American history.  If it simply wasn’t possible for most citizens to get a gun quickly for extralegal reasons, one would not expect to find waiting-period-like legislation and the absence of such litigation can’t be attributed to the Constitution.