Federal appeals courts recently diverged over whether state laws mandating so-called cooling off periods for firearms purchases implicate the Second Amendment and trigger the historical analogue test set out in the US Supreme Court’s landmark Bruen ruling.
The waiting period laws require prospective gun buyers to wait a specified amount of time between their weapon purchase and actually taking possession of the firearm. In Maine, the law is an effort to reduce impulsive suicides and homicides, according to the state’s legislature.
The US Court of Appeals for the Tenth Circuit struck down a seven-day waiting period in New Mexico in 2025 after concluding it likely violated the Second Amendment. But last month the US Court of Appeals for the First Circuit allowed Maine’s 72-hour waiting period to remain in place while a constitutional challenge to it is litigated.
The split centers on the first step of the framework established by the Supreme Court in 2022 in N.Y. State Rifle & Pistol Ass’n v. Bruen, where the high court held New York’s “shall issue” firearm permitting scheme was unconstitutional because it wasn’t rooted in historical tradition. Courts under Bruen’s standard must first determine whether the Second Amendment’s plain text covers an individual’s conduct. If it does, courts must then determine whether the challenged regulation is consistent with the nation’s history of firearms regulation by examining historical analogues.
The First Circuit ruled in Beckwith v. Frey that Maine’s waiting period doesn’t implicate the Second Amendment because the statute regulates the acquisition of firearms, which occurs before a person keeps or bears arms, ending the Bruen analysis at step one. The First Circuit reversed a district court’s ruling, reasoning the statute is a “non-abusive effort” by Maine to address a “documented problem arising from the immediate acquisition of firearms while remaining sensitive to minimizing the Second Amendment burdens,” Judge Seth R. Aframe wrote.
The position of the challengers to the Maine law is inconsistent with Bruen, the First Circuit said, since it requires that any law with “downstream restrictive effect of any magnitude on the Second Amendment right” must be justified by a historical analogue. But, this approach would make Bruen‘s first step “superfluous if all laws burdening the right to keep and bear arms to any degree are presumed unconstitutional” unless supported by an analogue, Aframe said.
A split Tenth Circuit held last year that New Mexico’s “Waiting Period Act” likely infringed upon the right to acquire firearms, which is integral to the right to keep and bear arms under the Second Amendment. Judge
“So, by New Mexico’s illogic, a restriction on firearm sales does not burden the Second Amendment —until it does,” Tymkovich said, regarding Bruen’s textual analysis at step one. “That argument provides no limiting principle. It inevitably leads to case-by-case judicial interest balancing.”
George A. Mocsary, professor of law at the University of Wyoming’s College of Law, said the First and Tenth circuits’ “clean” divergence at Bruen’s first step is unlike other more muddled legal disagreements between courts.
A ‘Stark’ Split
While the Supreme Court has previously let legal questions further develop throughout the 13 federal appeals courts before deciding to take them up, Mocsary said the split over waiting periods is maybe a “better pair of candidates for review” by the high court since the First and Tenth circuits hit the “main points” about the Bruen disagreement.
“This one’s pretty stark,” Mocsary said. “Both of them are applying Bruen, which is the Supreme Court’s controlling case, but they come out very different ways.”
While Mocsary declined to speculate on how the Supreme Court may resolve the split should it take it up, he said the First Circuit’s ruling doesn’t align with his reading of Bruen. He said the court’s interpretation also doesn’t align with the commercial regulation exception mentioned in the Supreme Court’s 2008 landmark firearms ruling in District of Columbia v. Heller, where the high court struck down D.C.'s prohibition on handgun possession and requirements for firearms to be kept nonfunctional within the home.
“At a basic level, a right delayed is a right denied,” Mocsary said. “According to the First Circuit’s approach, any length of waiting period would be okay, and even a ban on purchase or acquisition would be okay because, under the First Circuit’s reasoning, the acquisition is separate from the protected right, and that can’t be right.”
The case is Beckwith v. Frey, 1st Cir., No. 25-01160, 4/3/26.
Below are other circuit splits reported by Bloomberg Law in April.
Civil Procedure
Case:
Adidas America Inc. v. Thom Browne Inc., 2026 BL 154836 Article
Issue:
Is a negligent discovery violation “misconduct” sufficient to support a new trial under Rule 60(b)(3) of the Federal Rules of Civil Procedure, which governs when a court may grant relief from a final judgment, order, or proceeding? The Second Circuit said no, saying the rule “requires a higher degree of culpability.” The First Circuit previously held that a showing of misconduct under the rule doesn’t require demonstrating “nefarious intent or purpose” and may be shown by “even accidental omissions” and discovery responses “made in good faith.”
Civil Procedure
Case:
Schneiderman v. Am. Chem. Soc’y, 2026 BL 120528 Article
Issue:
Is there diversity jurisdiction when a party is a federally incorporated corporation if the corporation has a principal place of business but no state of incorporation? The Second Circuit says no. The Fourth Circuit has held the jurisdictional statute’s principal-place-of-business provision could confer state citizenship even without state incorporation.
Constitutional Law
Case:
Mick v. Gibbons, 2026 BL 114950
Issue:
Does sovereign immunity bar third-party subpoenas directed at states? The Eighth Circuit said it does if responding to the discovery requests would infringe on a state’s autonomy or threaten its treasury. The Fifth Circuit has held sovereign immunity categorically bars such subpoenas.
Elections
Case:
Public Interest Legal Foundation v. Nago, 2026 BL 152473 Article
Issue:
Are voter lists subject to public disclosure under the National Voter Registration Act of 1993? The Ninth Circuit held that while the NVRA has a provision requiring state disclosures, those are only for records regarding programs to ensure the accuracy of voter lists, not the lists themselves. The First Circuit has held that voter lists are subject to disclosure under the NVRA provision.
Immigration
Case:
Barbosa Da Cunha v. Moniz, BL 2026 BL 152372 Article
Issue:
Is a noncitizen detained in the interior of the US after entering without inspection or admission subject to mandatory detention under 8 USC 1225(b)(2)(A) during their removal proceedings or are they entitled to a bond hearing before an immigration judge and possible release under 8 USC 1226(a) during removal proceedings? The Second Circuit said Section 1226(a) governs, joining the Seventh Circuit. The Fifth and Eighth circuits have said such detentions are governed by Section 1225(b)(2)(A).
Taxes
Case:
Ream v. Dep’t of Treasury, 2026 BL 142658 Article
Issue:
Does the US Tax Code’s home distilling ban enacted under the Act of July 20, 1868, violate the US Constitution’s necessary and proper clause? The Sixth Circuit said no since it’s a “necessary and proper” way to collect federal excise taxes on alcohol. The Fifth Circuit has said the ban is unconstitutional and can’t be enforced, as not within Congress’ taxation power and not “necessary and proper” to carrying out that function.
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