Ortega v. Lujan Grisham

Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 22, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

SAMUEL ORTEGA; REBECCA SCOTT,

Plaintiffs - Appellants,

v. No. 24-2121 (D.C. No. 1:24-CV-00471-JB-SCY) MICHELLE LUJAN GRISHAM, in her (D. N.M.) official capacity as Governor of the State of New Mexico; RAUL TORREZ, in his official capacity as Attorney General of the State of New Mexico,

Defendants - Appellees.

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BRADY CENTER TO PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; STATE OF COLORADO; EVERYTOWN FOR GUN SAFETY,

Amici Curiae. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________

This matter is before the court on Defendants/Appellees’ Petition for Rehearing

En Banc, and Plaintiffs-Appellants’ Response in Opposition to Petition for Rehearing En Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 2

Banc. The petition and the response were circulated to all judges of the court who are in

regular active service, and a poll was called. The poll did not carry. Consequently, the

petition is DENIED.

Judges Moritz and Federico would grant the petition. Judge Federico has filed a

separate dissent from the denial of en banc rehearing, which is joined by Judge Moritz.

Entered for the Court,

PER CURIAM

2 Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 3

No. 24-2121, Ortega v. Grisham FEDERICO, Circuit Judge, dissenting from denial of petition for rehearing en banc.

This is an important and obvious case to rehear en banc, so this court

should grant the petition and proceed accordingly to en banc review. For

reasons that follow, I firmly believe the court’s decision to deny en banc review

merits a dissent.

En banc proceedings are “extraordinary” and “disfavored.” 10th Cir. R.

40.1(B). It has been the accepted wisdom for some time that where “there is a

difference in view among the judges upon a question of fundamental

importance, . . . it is advisable that the whole court have the opportunity, if it

thinks it necessary, to hear and decide the question.” Commissioner of Internal

Revenue v. Textile Mills Securities Corporation, 117 F.2d 62, 71 (3d Cir. 1940),

aff’d, 314 U.S. 326 (1941). To offset the time and costs to the court and parties

of an en banc review, we properly insist that a petitioner demonstrate that the

case involves “an issue of exceptional public importance” or “a panel decision

that conflicts with a decision of the United States Supreme Court or of this

court.” 10th Cir. R. 40.1(B). But where either of these conditions are satisfied,

the costs of the en banc process are usually considered worthwhile. And where,

such as here, both these conditions are satisfied, the smooth functioning of the

federal court system depends upon our exercise of en banc review. Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 4

The petition involves a New Mexico statute with grave public safety

consequences. The petition argues that a panel of this court failed to apply this

circuit’s binding precedent. This case therefore involves an issue of the most

“exceptional public importance,” which we have now addressed in conflicting

panel decisions.

Today’s decision to deny en banc review is wrong for three reasons. First,

it discards the exceptionally important public safety issues that surround New

Mexico’s firearms regulation, which we have now held to be unconstitutional.

Second, it ignores the tension between this case and our prior decision in Rocky

Mountain Gun Owners v. Polis, 121 F.4th 96 (10th Cir. 2024) [hereinafter

RMGO]. Third, it relies too heavily on the possibility that the Supreme Court

will grant review in a pending petition for certiorari, and therefore overlooks

several discretionary factors that militate in favor of our own en banc review.

I

In 2024, after experiencing “high state-wide rates of gun violence,” New

Mexico enacted the Waiting Period Act, which required a “cooling-off” period

for firearm purchases. Ortega v. Grisham, 148 F.4th 1134, 1139 (10th Cir.

2025). Although it contains several exceptions, the statute passed by the New

Mexico Legislature and signed by Governor Michelle Lujan Grisham generally

requires sellers to wait seven calendar days before transferring a firearm to a

buyer. Id. at 1139–40 (citing N.M. Stat. § 30-7-7.3). During the seven-day

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waiting-period, a federal background check must be conducted. Id. If seven

days lapse without completion of a federal background check, the waiting-

period can be extended until a background check is completed. Id. However,

“[i]f the required federal instant background check has not been completed

within twenty days, the seller may transfer the firearm to the buyer.” N.M.

Stat. § 30-7-7.3(A).

New Mexico enacted the law in response to a troubling problem.

According to the bill’s fiscal impact report, New Mexico had experienced “550

firearm-related deaths in New Mexico in 2022,” over half of them attributed to

suicides. N.M. Leg. Finance Committee, 56th Leg., 2d Reg. Sess., House Bill

129 Fiscal Impact Report 3 (N.M. Feb. 13, 2024) [hereinafter Fiscal Impact

Report]. “The state’s firearm death rate in 2022 was 26.5 deaths per 100

thousand residents, 84 percent higher than the nationwide rate of 14.4 deaths

per 100 thousand residents and the third-highest firearm age-adjusted death

rate in the nation.” Id. These drastic figures are part of a larger pattern: over

the past two decades, New Mexico’s firearm-related casualties have “escalated

significantly, moving from the seventh highest in the nation in 1999 to the

third highest in 2022.” Id.

Suicides represent a significant proportion of firearm-related deaths in

New Mexico and waiting period or cooling-off laws are particularly useful for

suicide prevention. Id. See also Ortega v. Lujan Grisham, 741 F. Supp. 3d 1027,

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1096 (D.N.M. 2024). The Legislature relied on several studies that

demonstrated at least moderate support for the proposition that waiting

periods reduce suicides in particular and homicides in general. Fiscal Impact

Report at 3.

The purposes of New Mexico’s statute may not be dispositive as to the

ultimate merits analysis under the Second Amendment. But the substantiated

nexus between New Mexico’s statute and the public health and safety of its

citizens presents an issue of “exceptional public importance” that warrants our

consideration of the statute’s constitutionality in the petition before us. 10th

Cir. R. 40.1(B). The Ortega majority acknowledged that the statute “serves two

purposes. First, it seeks to reduce impulsive gun violence or suicides. Second,

it aims to close a perceived loophole in federal law that sometimes permits a

purchaser to acquire a gun without completing a background check if the

process takes more than three days.” 148 F.4th at 1140. But our panel decision

prevents New Mexico from vindicating those purposes by its chosen aims. Upon

en banc review, we might ultimately agree with the panel that the Second

Amendment erects a barrier to the law that New Mexico has duly enacted. But

New Mexico’s stated, uncontradicted, and indisputable interest in the public

safety and health of its citizens warrants a closer look before we extinguish it.

As best I can tell, Ortega also appears to be the first time this court has

ever struck down a firearms statute for violating the Second Amendment. See

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also Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical

Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433,

1498 (2018) (as of publication and pre-Bruen, half of all circuits including the

Tenth Circuit had never encountered a successful Second Amendment

challenge). Even setting aside the immediate public safety consequences in

New Mexico, Ortega will have widespread ramifications for courts in this

circuit that must wrestle with Second Amendment challenges. The

jurisprudential consequences alone justify en banc review. That these

jurisprudential consequences occur in a case with powerful public safety

interests only underscores that this is a case of “exceptional public importance”

worthy of the time and effort for en banc review.

II

Even so, issues of exceptional public importance come and go before this

court with some frequency without the intervention of the full court. So

perhaps if this case was only a matter of first impression, I might join my

colleagues’ votes against rehearing the case despite its impact on public safety

and health. But the petition for rehearing also identifies a possible conflict

between Ortega and one of our prior, published decisions.

In RMGO, this court upheld a Colorado statute that set the minimum

age for the sale and purchase of firearms within the state to twenty-one. 121

F.4th 96, 104 (10th Cir. 2024). The court examined the Supreme Court’s Second

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Amendment precedents, including D.C. v. Heller, 554 U.S. 570 (2008), N.Y.

State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and United

States v. Rahimi, 602 U.S. 680 (2024). 121 F.4th at 118–19. RMGO explained

that, beginning with Heller, these cases all recognized that there are certain

categories of laws, including those “imposing conditions or qualifications on the

commercial sale of arms,” that are “presumptively lawful.” RMGO, 121 F.4th

at 118–19 (quoting Heller, 554 U.S. at 626–27, 626 n.26). The court ultimately

determined that the Colorado law fit within the category of a presumptively

lawful regulatory measure. Id. at 119–20. The court further held that because

the Colorado law placed conditions upon the commercial sales of arms and was

not adapted to “abusive ends,” it did not implicate the text of the Second

Amendment, so “the inquiry end[ed]” at step-one of the Bruen framework and

without resort to historical analogues. Id. at 114, 120–28. 1 We have since

applied RMGO to reject Second Amendment challenges three times. United

1 Our colleague, Judge McHugh, authored a thoughtful concurrence in

RMGO that disagreed with part of the rationale for the court’s decision but ultimately agreed that the Colorado law was constitutional. Judge McHugh would have housed the relevant inquiry at step-two of Bruen rather than step- one. Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 133 (10th Cir. 2024) (McHugh, J., concurring). As a result, Judge McHugh would have required that a challenged regulation be “longstanding” in order to benefit from the presumption of lawfulness. Id. at 135. Nevertheless, all three judges on the panel in RMGO agreed that the Colorado regulation was “presumptively lawful” and constitutional. Id. at 143.

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States v. Harrison, 153 F.4th 998, 1009 (10th Cir. 2025); United States v.

Morgan, 150 F.4th 1339, 1346 (10th Cir. 2025); United States v. Jackson, 138

F.4th 1244, 1252–53 (10th Cir. 2025).

Ortega takes a different approach. Ortega starts with the premise that

“acquiring, purchasing, and possessing firearms is a necessary predicate to

keeping and bearing them.” 148 F.4th at 1143. From there, Ortega reasoned

that laws or regulations of commercial firearms sales are covered by the Second

Amendment – precisely the opposite of what the court said in RMGO. Compare

RMGO, 121 F.4th at 120 (“We agree and hold that laws imposing conditions

and qualifications on the sale and purchase of arms do not implicate the plain

text of the Second Amendment.”) with Ortega, 148 F.4th at 1144 (“New

Mexico’s argument that limitations on firearm sales or transfers do not

implicate the Second Amendment’s plain text is wrong[.]”). Ortega’s attempts

to distinguish RMGO may not withstand further scrutiny.

First, Ortega offered that “cooling-off periods are not tailored to

commercial sales.” 148 F.4th at 1146. It is not clear whether Ortega meant that

cooling-off periods can never be appropriately tailored to commercial sales, or

only that New Mexico’s statute was overinclusive with respect to certain kinds

of firearm transfers. Id. at 1146–47. For example, Ortega acknowledged that

the New Mexico “statute refers only to ‘buyers’ and ‘sellers’ and seems to

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exclude gifts.” Id. at 1146. 2 But even if the panel was correct in finding some

unlawful applications of New Mexico’s law, that would not be a basis upon

which facial relief could be granted on remand. Rahimi, 602 U.S. at 693; United

States v. Salerno, 481 U.S. 739, 745 (1987) (outside the First Amendment

context, a facial “challenger must establish that no set of circumstances exists

under which the [challenged regulation] would be valid”). Nor would it be an

appropriate basis for us to hold “that the law is unconstitutional.” Ortega, 148

F.4th at 1156.

Second, Ortega suggests that a cooling-off or waiting period is not a

condition or qualification for sale “any more than the price of a firearm is.” Id.

at 1147. Ortega then hints at a test for determining whether a regulation is

(not) a condition or qualification for sale: “It is not enough that a regulation

sometimes affects a commercial sale. . .[Otherwise,] an outright ban on

commercial sales would also be a condition or qualification on commercial

sales, and presumptively lawful.” Id. But this hypothetical fear is easily

addressed. Under Bruen and RMGO, a challenger can rebut the presumption

of legality with evidence that the regulation at issue is adapted to “abusive

2 Nor can I glean any clarity from the panel’s examples of hypothetical

“non-commercial conduct” that plainly involve commercial conduct. Ortega v. Grisham, 148 F.4th 1134, 1146 (10th Cir. 2025) (stating that “a collector selling firearms to a museum collection” is not engaged in commercial conduct (emphasis added)).

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ends” – evidence that the regulation sweeps so indiscriminately as to ensnare

law-abiding, responsible citizens and their self-defense rights. RMGO, 121

F.4th at 122 (citing Bruen, 597 U.S. at 38 n.9).

Third, Ortega argues that in RMGO the court did not “grapple with the

full scope of arguments defining conditions and qualifications.” Ortega, 148

F.4th at 1148. But our precedent confirms that is not a basis upon which to

depart from a prior published decision of this court. United States v. Baker, 49

F.4th 1348, 1358 (10th Cir. 2022). The strict and broad rule of stare decisis

that subsists in this circuit does not allow a future panel to break from

precedent based on its own view of the party-presented arguments in a prior

panel decision. Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1130 (10th Cir.

2009) (“[U]nless and until the holding of a prior decision is overruled by the

Supreme Court or by the en banc court, that holding is the law of this Circuit

regardless of what might have happened had other arguments been made to the

panel that decided the issue first.” (internal quotations omitted, emphasis in

original)). But in any event, Ortega itself acknowledges that the “pertinent”

arguments were addressed. 148 F.4th at 1148. Ortega cites the RMGO

concurrence for the proposition that some arguments were not presented or

decided, 148 F.4th at 1148, but that citation implicitly acknowledges that the

RMGO court was aware of – and rejected – the arguments later presented in

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Ortega. See also 148 F.4th at 1159 (Matheson, J., dissenting) (discussing the

briefed arguments in RMGO).

Finally, Ortega suggests that the New Mexico statute, even if

presumptively lawful, could not withstand further scrutiny. Id. at 1148–49.

But instead of assessing whether the New Mexico law is adapted towards

abusive ends, Ortega instead struck down waiting periods (apparently as a

class) because they “are neither longstanding nor widespread practices, and

diverge from history and tradition.” Id. at 1149. That was not the majority

approach in RMGO. Instead, it was partially the approach the RMGO

concurrence would have taken. Polis, 121 F.4th at 135 (“I believe the

government has the burden of showing the regulation at issue is

longstanding[.]”). The RMGO majority weighed a broader set of factors, like

the amount of discretion required to implement the regulation, the widespread

adoption of identical or similar regulations, the history of identical or similar

regulations, and the evidence tying the regulation to an accurate

determination of citizen responsibility. Id. at 123–27. Ortega, however, treated

the third factor as dispositive, simultaneously redefining “abusive ends” as

those “justified only by assuming that citizens cannot be trusted with their own

rights.” 148 F.4th at 1149 n.7.

Ortega elicited a persuasive dissent. New Mexico’s “waiting period is

similar in all material respects,” wrote Judge Matheson, to the Colorado age

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restriction we upheld in RMGO. 148 F.4th at 1158 (Matheson, J., dissenting).

Indeed, if anything, the Colorado law imposed a far more burdensome waiting

period – up to three years – for adults who wished to purchase a firearm. Id.

And under both the New Mexico and Colorado laws, a potential firearm buyer

must wait for conditions that are out of their control. Id. at 1159. Still this

court upheld the Colorado law. The Ortega majority’s principal response to the

dissent was that the dissent failed “to give ‘any consideration’ to ‘what defines

a condition or qualification on a commercial sale.’” Id. at 1158 (quoting majority

at 1148). But as Judge Matheson pointed out, the definition of a condition or

qualification can be found by reference to what we upheld in RMGO. Id. And

in any event, the Ortega majority stands on no better ground, for it did not

provide a definition that would permit the outcomes in both RMGO and Ortega.

It is therefore no surprise that Colorado, whose law was upheld in

RMGO, now joins New Mexico and urgently asks us to review Ortega en banc.

Colorado’s age restriction, which was upheld only last year, may once again be

placed in jeopardy. Colorado Am. Br. at 12. But Colorado is not alone among

those in the Tenth Circuit who may endure additional litigation after Ortega:

Kansas, Oklahoma, Utah, and the federal government all establish age

restrictions, some exceeding the age of eighteen, depending on the type of

weapon purchased. RMGO, 121 F.4th at 123 n.9. And Colorado imposes a

three-day waiting period for gun purchases. Ortega, 148 F.4th at 1140 n.1. It

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is an open question whether Ortega casts doubt on the constitutionality of all

these laws, notwithstanding our prior opinion in RMGO.

But it is not only the interests of governments at stake. In RMGO, it was

the plaintiffs who lost. If Ortega is correct about its approach to the Second

Amendment, then this court may have erroneously denied relief in RMGO. The

constitutional rights of those people affected by our decision in RMGO are

profoundly and unfairly undermined by the ambiguity we needlessly inject into

the law after Ortega. Responsible, law-abiding citizens who wish to exercise

their Second Amendment rights are entitled to, at a minimum, clear rules and

expectations as to how their rights may be constitutionally limited. But the

lack of harmony in our Second Amendment jurisprudence invites the

perception – fair or not – that the Second Amendment rights of Americans

might rise or fall depending on the district court where they file or the panel of

appellate judges they draw. Particularly in high profile matters like this one,

our consistent application of one rule is therefore of paramount importance.

I find implicit in Ortega’s attempts to distinguish RMGO an entirely

respectable instinct: fair-minded disagreement about Second Amendment

jurisprudence. However, there are additional compelling reasons for initiating

the en banc process above and beyond the necessary predicates of exceptional

public importance or an intracircuit conflict in opinions.

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III

In addition to the Rule 40 factors discussed above, there are two related,

discretionary factors that also counsel in favor of en banc. First, allowing a

potential intracircuit split to persist will inevitably cause judicial inefficiencies

in the district courts and on appeal. Second, we bear a duty to opine on this

issue of critical importance. The gravitational pull of the Supreme Court does

not displace that duty – in fact, it enhances our institutional responsibilities.

Our failure to resolve the questions presented by New Mexico’s petition for

rehearing en banc therefore wastes the reservoir of discretion we purposely

reserve for moments such as this.

The tension between Ortega and RMGO will inspire judicial inefficiency.

Potential intracircuit splits make the work of district courts more difficult, as

they must struggle to cobble together a workable theory of circuit law without

offending two binding opinions. “A district court must follow the precedent of

this circuit[.]” United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir.

1990). But just as we are incapable of resolving perceived inconsistencies in

the Supreme Court’s caselaw, United States v. Maloid, 71 F.4th 795, 808 (10th

Cir. 2023) (“We must apply Supreme Court precedent even when that

precedent rests on shaky grounds.”), so too are district courts unable to resolve

our intracircuit splits for us. And just as perceived inconsistencies in the

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Supreme Court’s jurisprudence generate inefficient and inconsistent

applications of the law, so too do inconsistencies in our own jurisprudence. 3

Comparing the retrospective and prospective effects of this intracircuit

tension illustrates the harms. Retrospectively, Ortega endangers Colorado’s

reliance on the outcome in RMGO, without appropriate notice or an

opportunity to participate in the proceedings that may affect Colorado.

Prospectively, Ortega makes it difficult to predict how district courts and

ultimately this court will approach and resolve similar questions of law. As

explained above, that uncertainty affects not only government interests, but

also the interests of those wishing to lawfully exercise their constitutional

rights. The en banc process exists precisely to avoid these inequitable results.

Lastly, I am aware that some litigants and courts have expressed

confoundment by the Supreme Court’s Second Amendment jurisprudence.

Thus, it is tempting to take comfort in the possibility that the Supreme Court

3 Our recently amended local rule cautions that en banc review is disfavored in part because we generally circulate opinions to be published internally before they are filed. 10th Cir. R. 40.1(B). But the internal review procedure was originally devised not to replace en banc, but to more easily ferret out the cases that were ripe for en banc. Judah I. Labovitz, En Banc Procedure in the Federal Courts of Appeals, 111 U. Penn. L. Rev. 220, 226–27 (1962) (citing Letter from Hon. Alfred P. Murrah, Chief Judge, Tenth Circuit U.S. Court of Appeals, Dec. 27, 1961). I am certain that our internal review procedure does not substitute for en banc review in a case of such magnitude and complexity.

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may soon address the issues confronted in Ortega and RMGO. See, e.g., Pet. for

Writ of Certiorari in NRA v. Glass, No. 24-1185 (docketed May 20, 2025)

(question presented: “[w]hether Florida’s law banning 18-to-20-year-olds from

purchasing firearms violates the Second Amendment”). But possibility is not

certainty, and the Supreme Court may well defer this issue for further

percolation in the lower courts. If we deny en banc review in Ortega and the

Supreme Court denies certiorari in Glass, our jurisprudence will be left in a

state of unremedied confusion, with little to no path for correction, at least not

in the near term. 4

The Supreme Court may or may not soon provide clarity on how the

“presumptively lawful regulatory measures” or safe harbor laws, first

expressed in Heller, overlap with the Bruen two-step framework. But until it

does, we must keep in mind that it is not “desirable for a lower court to embrace

the exhilarating opportunity of anticipating a doctrine which may be in the

womb of time, but whose birth is distant.” Spector Motor Service v. Walsh, 139

F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting). Instead, at our middling

level, we keep our eye on our own paper, which is in turn confined by circuit

precedent. That is why, where colleagues across panels seem to disagree on a

4 If the Supreme Court were to grant certiorari in Glass or another case

that would provide binding guidance on this case after we granted rehearing en banc, we could simply abate the en banc review until the Supreme Court decided the case before it and rendered an opinion. 15 Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 18

complex legal issue, there is an established procedure for conclusively

resolving that disagreement. In my view, that is our duty, and we should get

on with it.

IV

I am concerned that the denial of en banc review leaves much of our

Second Amendment jurisprudence in a state of confusion. However, two points

of clarity still emerge from amidst the fog. First, attention from the Supreme

Court on the issue at hand – regulations of commercial firearm sales – would

be welcome. Second, because the court today declines en banc reconsideration,

RMGO remains the law of the circuit until the Supreme Court says otherwise.

Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). With these thoughts,

I respectfully dissent from the denial of rehearing en banc.

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