Litigation Highlight: First Circuit Hears Appeal in Challenge to Maine's New Waiting Period Law

This guest post does not necessarily represent the views of the Duke Center for Firearms Law. 

As recounted in Andrew Willinger’s March 6, 2025 post, following Maine’s deadliest-ever mass shooting in October 2023, Governor Janet Mills allowed a 72-hour waiting period law passed by the Legislature to go into effect. This law was intended to address, and hopefully prevent, suicide by firearm (which amounts to approximately 87% of the firearm fatalities in the state). Plaintiffs in Maine challenged the law in Beckwith v. Frey, alleging that it violated their Second Amendment rights. In February 2025, the U.S. District Court for the District of Maine granted Plaintiffs’ preliminary injunction motion, finding that the law impacted Second Amendment rights and that there was no historical analogue for this deprivation.  Maine appealed to the First Circuit, which heard oral argument on Monday, July 28.  Based on the oral argument, it appears as if the Court is poised to rule that the acquisition of firearms is a commercial venture not subject to the plain text of the Second Amendment.

The majority of the argument focused on whether the challenged law implicates the plain text of the Second Amendment (step one of the Bruen analysis). While the Second Amendment does not mention acquisition, or certainly immediate acquisition, the Court questioned whether one can “keep and bear arms” without first acquiring them.  The state cited recent decisions for the proposition that a commercial transaction does not implicate the Second Amendment.  For example, in B&L Productions v. Newsom, the Ninth Circuit upheld California’s ban on gun sales in certain state fairgrounds and other public property and asked—at step one—whether a law “meaningfully constrains” an individual’s ability to acquire a firearm. Many commercial restrictions do not, the court said, because they leave prospective gun purchasers with the option of acquiring firearms through other channels. 

Appellees countered that such cases are not directly on point and relied in part on another recent Ninth Circuit decision: Yukutake v. Lopez.  There, a different panel struck down Hawaii’s requirement that prospective purchasers buy a handgun within 30 days of obtaining a permit or else go through the permitting process again.  At step one, the Yukutake panel distinguished B&L as limited to discrete restrictions that do not impact commercial transactions for an entire class of weapons.  The Hawaii law, by contrast, applied to all handgun purchases and thus—the panel said—implicated the Second Amendment right to acquire a handgun for self-defense. 

In Beckwith, the Court appeared to wrestle with whether Maine’s waiting-period law imposes “meaningful constraints” on the right to “keep and bear” arms – a test suggested in B&L. Appellees argued that the waiting period law impacts “possession” and is not a commercial restriction that is “presumptively lawful” under Heller. The Court did not appear swayed by this argument. 

Unlike the District Court, the First Circuit extensively inquired into the “why,” or the legislative objective (step two of the Bruen analysis). Specifically, the state indicated that the law was intended to address impulsive behavior by imposing a 72-hour delay on firearm acquisition. The law may be overbroad (not all persons acquiring guns are impulsive and potentially suicidal or homicidal) and the waiting period applies across the board without an individualized assessment (though as, Maine explained at argument, it applies only to advertised sales for which a background check is required). However, the state likened the delay to “shall issue” licensing regimes approved in Bruen that require safety classes. Safety classes and licensing regimes apply to all purchasers subject to background checks and do not contemplate individualized assessments. While a background check may only take a few minutes, requirements to take safety classes will certainly exceed Maine’s 72-hour delay. 

In addition, assuming the Court moves to step two of Bruen, the state argued that the waiting period was consistent with historical firearm regulations and found support in both intoxication regulations and licensing schemes from the Founding era. The waiting period law addresses a societal problem not existent at the Founding—impulsive use of firearms to commit suicide and homicide—due to the limitations on firearms themselves and the lack of immediate availability of firearms. This calls for the “nuanced” approach approved in Bruen. The state referred to uncontroverted historical evidence that impulsive firearm purchasing was not attainable in 1791, obviating the need for a waiting period regulation. The one historical impulsive behavior was intoxication and many early laws regulated the ability of intoxicated persons to carry firearms or the commercial sale of alcohol when firearms were present. Moreover, Maine argued that this country has a long history of licensing and permitting schemes. Both the intoxication regulations and the licensing schemes focused—as the 72 hour waiting period does—on ensuring that persons possessing firearms are responsible. Finally, Maine argued that this law is a good faith legislative response to try and determine who is sufficiently responsible to possess a firearm. 

Appellees did not address the historical evidence submitted and instead rested their case on the arbitrary delay imposed by the law that fails to include an individualized assessment of dangerousness. Under this analysis, any waiting period implicates the Second Amendment right, especially when it is not tethered to history or tradition. 

The Court seemed willing to accept that a 72-hour delay on acquisition of firearms does not “meaningfully constrain” the right to keep and bear arms under the Second Amendment. It remains to be determined whether the court will stop at step one or proceed to a “nuanced” evaluation of the waiting period law under step two. If the panel proceeds to step two, it is likely to find that both intoxication regulations and licensing schemes are relevantly similar to Maine’s waiting period law and justify this minimal burden on Second Amendment rights.