Opponents of waiting period on gun purchases vow to challenge law in court

Gun rights advocates hold signs among the gun reform and gun safety supporters at the State House in January. Opponents of a new law requiring a 72-hour waiting period for gun purchases say they will challenge the law in court. Brianna Soukup/Staff Photographer

Opponents of a 72-hour waiting period on firearms purchases said Tuesday that they plan to file a legal challenge in an effort to block the measure one day after Gov. Janet Mills allowed it to become law without her signature.

“We will be hiring an attorney and will absolutely be challenging the 72-hour waiting period,” Laura Whitcomb, president of Gun Owners of Maine, said on Tuesday. “We feel very strongly this is not going to meet constitutional muster.”

A leading gun safety advocate in Maine said the challenge is not unexpected, and will not succeed.

Maine joined 12 other states and the District of Columbia in enacting a waiting period on firearms purchases when Mills allowed it to become law on Monday despite being conflicted about the impacts it might have.

The law, which will take effect 90 days after the Legislature adjourns, was approved by lawmakers by narrow margins in the wake of the mass shooting in Lewiston that left 18 people dead and 13 others injured in October.

It means someone who purchases a gun will have to wait three days to obtain it, with exceptions for sales between family members, firearms sold as relics or antiques, sales where background checks are not required, and sales to law enforcement, security and corrections officers.

LEGAL FIGHTS IN OTHER STATES

In Vermont, which passed a 72-hour waiting period on most firearms purchases last year, opponents filed a lawsuit in U.S. District Court in Burlington in December contending the new law violates the Second Amendment of the U.S. Constitution.

Whitcomb said a lawsuit from Maine opponents would likely follow a similar tack.

“The constitution both in the state of Maine and the United States has codified our inalienable right to bear arms,” she said. “When you put somebody through the paces of having a background check, and they’ve been found to be a law-abiding citizen who is legally allowed to have a firearm, and then you give them an arbitrary waiting period that infringes on those constitutional rights. … We don’t do that with any of our other rights.”

The new law, and a possible challenge, come after a landmark 2022 U.S. Supreme Court case that shifted the standard for firearms restrictions.

The nation’s high court ruled in New York State Rifle & Pistol Association v. Bruen that gun laws should be evaluated not based on their impact on the public good but according to the Second Amendment’s text and the “historical tradition” of gun regulation.

The decision has been celebrated by gun rights advocates as a strengthening of their constitutional rights and an opportunity to roll back gun control measures.

“If you can’t go back and say there’s a historical precedent for making people wait three days to own a firearm, then it doesn’t pass constitutional muster,” Whitcomb said. “So we do feel very good about a lawsuit.”

Nacole Palmer, executive director of the Maine Gun Safety Coalition, which supported passage of the waiting period, said she was not surprised to hear that opponents would be considering a legal challenge and that such challenges are a common response to new gun laws.

“I am more confident than ever that any challenge to the 72-hour waiting period will be unsuccessful and that Maine’s new 72-hour waiting period will be upheld as constitutional, even after the Bruen decision, in any legal challenge,” Palmer said.

PROPONENTS HIGHLIGHT SUICIDE PREVENTION

Proponents of the 72-hour waiting period have pitched it as a “cooling off” period that will prevent the purchaser of a firearm from acting impulsively, particularly when it comes to suicides.

Opponents say the waiting period is an infringement on Second Amendment rights, will drive more people to private sales that don’t require background checks, hurt businesses and gun shows, and could imperil people who have an urgent need to protect themselves.

They have particularly highlighted the need for victims in domestic violence situations to be able to arm themselves, although domestic violence advocates have said a waiting period would not make victims less safe and that an abusive partner’s access to a firearm, regardless of who owns it, makes it five times more likely that a victim of domestic abuse will be killed.

David Trahan, executive director of the Sportsman’s Alliance of Maine, said his group met with the Gun Owners of Maine and other opponents of the new law Tuesday and decided they also will be involved in the lawsuit that is brought forward.

“We all agreed we will work together and pool our resources to challenge it,” Trahan said.

Trahan was surprised by the governor’s decision to let the bill become law and said he had let her know when it was first introduced that a lawsuit was a possibility should the legislation be enacted.

“My phone has been ringing off the hook,” Trahan said Tuesday. “People are very upset. They didn’t think this had a chance and now it’s sort of changed the landscape for folks who represent the Second Amendment.”

Sen. Peggy Rotundo, D-Lewiston, who sponsored the legislation, said backers of the proposal knew when they brought the bill forward that it could face a legal challenge.

“However, I strongly feel that none of this diminishes the impact a 72-hour waiting period will have in reducing the number of suicides by firearm we will experience in Maine,” Rotundo said in a written statement Tuesday.

She pointed to statistics from the Maine Center for Disease Control and Prevention showing that in 2021, half of Maine’s 277 suicides involved a firearm.

“I am confident that the 72-hour waiting period will save lives and save many families the heart break of losing a loved one to suicide by firearm,” Rotundo said.

STATE WILL MONITOR CHALLENGES

Mills expressed her own concerns with the legislation Monday, saying in a written statement that there is merit to the points raised by opponents that a waiting period is “constitutionally suspect” and is being challenged in other states, including Vermont.

The governor also said that she will be asking the commissioner of the Department of Public Safety and attorney general to monitor constitutional challenges over waiting periods in other jurisdictions to assess their impact on Maine’s law.

In an interview on WVOM radio’s morning program Monday, Trahan said his group would consider a people’s veto effort to overturn the 72-hour waiting period through a statewide referendum, though on Tuesday he said that such an effort would likely be a “steep uphill climb.”

“It’s not off the table,” he said. “It depends on if we have enough time to do it. We are taking what happened seriously. We did not expect this bill to pass.”

In order to get a people’s veto referendum on the November ballot, proponents of the measure would need to file an application within 10 days of the Legislature adjourning. They would then have 90 days from adjournment to turn in the number of signatures equal to 10% of the votes cast in the last gubernatorial election, or 67,682 signatures.

According to the Giffords Law Center for Gun Violence Prevention, nine states and the District of Columbia have waiting periods for the purchase of all firearms. Minnesota has a 30-day waiting period for handguns and assault weapons, while Maryland and New Jersey have waiting periods for handguns only.