SAF, NRA Push Waiting Period Case

The Second Amendment Foundation and the National Rifle Association have filed a joint amicus brief asking the Supreme Court to take up a challenge to Maine's 72-hour firearm waiting period.

State of play: The case, Beckwith v. Frey, started well for gun owners. A district court granted a preliminary injunction against Maine's waiting-period law. The First Circuit reversed, and not on narrow grounds — the appeals court declared that acquiring a firearm isn't even protected Second Amendment activity in the first place.

That's the part SAF and NRA want the justices to fix. According to the First Circuit's reasoning, plaintiffs challenging a waiting period can't win "unless plaintiffs demonstrate that the Act is abusive toward Second Amendment rights." The court called the delay "a burden on, but not an infringement of," the right to keep and bear arms — which hands judges the discretion to decide whether a gun law is annoying enough to count as unconstitutional.

The legal question: That's interest balancing, the exact approach Bruen was supposed to kill in 2022. NRA's Joseph Greenlee and SAF's Kostas Moros argue in the brief that any law touching the plain text of the Second Amendment — including the acquisition of a firearm — has to be justified with historical analogues, full stop. No vibes-based abuse test allowed.

Their logic is straightforward: you can't keep or bear a gun you're not allowed to buy yet. If the right to keep and bear arms means anything, it has to include the right to get one without the government imposing an artificial delay first.

Zoom in: The brief points to a fresh example of how courts are already using this "ancillary rights get less protection" dodge. A California state court recently ruled that the state's new 11% excise tax on guns and ammunition doesn't even implicate the Second Amendment's plain text — meaning the historical test never gets triggered at all. If that logic holds, states can tax, delay, or license their way around Bruen simply by claiming the burden isn't direct enough to count.

Yes, but: Maine isn't the only front. The Ninth Circuit's recent en banc ruling in the Hawaii licensing case did something similar, treating two contested provisions as presumptively constitutional under a "shall issue" label and shifting the burden onto plaintiffs to prove the law is abusive — rather than making the state prove its law fits historical tradition, as Bruen requires.

The brief notes there's already a circuit split on waiting periods generally, plus a thin historical record for laws like Maine's — two more reasons the Court has grounds to grant cert. But the interest-balancing argument is the one SAF and NRA are leaning on hardest, betting the justices are tired of lower courts finding creative ways to avoid the historical test altogether.

What's next: The Court is also weighing Viramontes, another case that could address this same evasion tactic. Whether the justices tackle it there or take up Beckwith v. Frey to do it, gun rights groups are making clear they want a direct answer on whether ancillary Second Amendment rights — like buying a gun in the first place — get the full Bruen treatment or a watered-down version. No cert decision has been announced yet.