Earlier this week the Tenth Circuit Court of Appeals heard arguments over New Mexico’s waiting period law, which requires every gun purchaser to wait seven business days before they can take possession of their firearm. 

While New Mexico Deputy General Counsel Kyle Duffy’s main argument was that the state’s waiting period law doesn’t implicate the Second Amendment because the right to keep and bear arms doesn’t encompass the right to acquire a firearm, the general counsel for New Mexico Governor Michelle Lujan Grisham took a different and disturbing position to justify the state’s arbitrary waiting period. 

New Mexico sent a letter to the Tenth Circuit today that argues why it should be able to use past discriminatory laws as historical support for the state’s current gun laws: pic.twitter.com/kky6AusW1S

— Firearms Policy Coalition (@gunpolicy) May 14, 2025

Holly Agajanian cited the Ninth Circuit Court of Appeals’ recent decision in United States v. Duarte, which held that while 18th and 19th century laws banning gun possession for entire classes of people like “non-Anglican Protestants, Native Americans, free Black people, those who refused to swear loyalty oaths, minors, and ‘tramps'” would likely be unconstitutional today, they still “are reflective of American history and tradition” and therefore support the blanket ban on gun ownership for those convicted of felony offenses or crimes punishable by more than year in prison. 

So what does that have to do with a waiting period? Well, according to Agajanian, “New Mexico made the judgement that firearm sellers should not immediately transfer a purchased firearm to those who are not federally licensed firearms dealers, law enforcement, or concealed carry permit holders since they may present a special danger of impulsive firearm violence,” which she says is analogous to those 18th and 19th century statutes approvingly cited by the Ninth Circuit. 

There are several problems with Agajanian’s position; both from a legal and moral perspective. Even if the Ninth Circuit concluded that laws that would be patently unconstitutional today can serve as historic analogues to justify modern day gun controls, other appellate courts have reached the opposite conclusion and have held that those laws were aimed at categories of people who were weren’t considered part of “the people” who had a right to keep and bear arms; unlike the gun buyers in New Mexico who are subjected to a 7-day waiting period before they can take possession of their legally purchased firearm. 

But as U.S. District Judge Roger Benitez also wrote in his opinion striking down California’s law requiring background checks, Attorney General Rob Bonta’s citation of these bigoted statutes was an “embarrassing, disgusting, insidious, reprehensible list of examples of government tyranny towards our own people,” and that “repugnant historical examples of prejudice and bigotry will not be used to justify the State’s current infringement on the constitutional rights of citizens.”

The Ninth Circuit clearly disagrees with Benitez, since they’re perfectly willing to use these bigoted statutes to justify current gun control laws, but it’s still abhorrent to see the general counsel for the New Mexico governor argue that the average resident who wants to have a firearm for a lawful purpose like self-defense is, at best, a likely danger to themselves or others… and at worst a non-person, or at least someone who’s not a part of the political community of the United States. Most of us would look at these laws with disdain and be grateful that we’ve moved beyond these bigoted ideas, but for far too many anti-gunners these historic anomalies are the basis for their own anti-gun bigotry and oppression.