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
2 Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 5
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,
3 Appellate Case: 24-2121 Document: 117 Date Filed: 12/22/2025 Page: 6
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.