Three Days Too Late: How Colorado Endangers Citizens by Withholding Self-Defense

Colorado’s three-day waiting period is built on a presumption of guilt. It assumes that every law-abiding buyer who passes a background check is a potential threat to themselves or others, and so the state imposes a blanket delay before a constitutionally protected arm may be delivered. That premise is not only offensive to due process and common sense, it fails the Supreme Court’s Bruen test and the 10th Circuit’s own fresh guidance. This week, a 10th Circuit panel blocked New Mexico’s seven-day waiting period as likely unconstitutional, holding that “cooling-off periods” do not fit within any historically grounded exception to the right to keep and bear arms. If a seven-day delay cannot survive in our circuit, Colorado’s three-day delay stands on the same shaky ground.

What Colorado’s Law Actually Does

Enacted in 2023 via HB23-1219 and codified at C.R.S. § 18-12-115, Colorado forbids a dealer from delivering a purchased firearm until the later of three days after the background check is initiated or the moment the check is approved. Delivering earlier is a civil infraction with escalating fines. The law took effect October 1, 2023. For countless Coloradans, including new gun owners facing immediate threats—this means an arbitrary, state-imposed delay on acquiring a tool of self-defense even after they have been cleared.

Our Case So Far—And Why This Week Matters

When we sought a preliminary injunction, the district court refused to pause the law. The court accepted the state’s “public health” narrative and suggested waiting periods could be analogized to other historical regulations—despite acknowledging that the first true waiting period laws did not arrive until the 20th century. That early setback was disappointing, but it was never the last word. The same 10th Circuit that will ultimately review Colorado’s law has now held that New Mexico’s seven-day waiting period is likely unconstitutional under Bruen because “cooling-off” delays are not part of our Nation’s historical tradition. That is a roadmap for Colorado.

The Governing Standard: Heller, McDonald, & Bruen

The Supreme Court made three controlling points that Colorado cannot wish away:

Individual right: District of Columbia v. Heller confirmed the 2nd Amendment protects an individual right to keep and bear arms for lawful purposes such as self-defense. Government may not destroy the core of that right with blanket bans or disabling burdens.
Incorporation: McDonald v. Chicago applied that protection against the States. Colorado must justify its restrictions under the federal Constitution, not merely state policy preferences.
Method: New York State Rifle & Pistol Association v. Bruen rejected interest-balancing and demands that a firearm regulation be consistent with the Nation’s historical tradition of firearm regulation. If the State cannot point to a well-established analogue from the Founding era (or a comparably justified and similar burden), the law fails. Waiting periods—creatures of the 20th century—simply are not there.

The 10th Circuit’s New Mexico ruling applies Bruen faithfully: general “cooling-off” laws are not historically grounded, and thus likely unconstitutional. That logic applies with equal force to Colorado’s three-day delay.

The “Everyone’s a Risk” Premise Is Factually Wrong

Colorado’s policy rests on the claim that a mandatory delay will prevent crimes of passion or impulsive violence. But the best federal data show that the people committing gun crimes are not obtaining their weapons from retailers in the first place. According to the U.S. Department of Justice’s Survey of Prison Inmates, only about 1.3% of prisoners who used a gun in their offense obtained it from a retail source. A delay on lawful retail transfers does not touch the primary channels criminals actually use. It only burdens the law-abiding.

Nor is there robust evidence that waiting periods reduce violent crime. The seminal evaluation of the Brady Act’s waiting period (post-1994) found no statistically significant reduction in homicide rates—the only clear effect was a reduction in firearm suicide among older adults. That is not a justification to burden every cleared buyer with a delay while crime remains unaffected. And CDC’s Community Preventive Services Task Force concluded that there is insufficient evidence to determine that waiting periods reduce violent outcomes. When the evidence is weak and mixed, you do not get to curtail a fundamental right.

The Constitutional Problem With Delay-As-Default

The 2nd Amendment protects keeping and bearing arms; that necessarily presumes the ability to acquire them. Federal courts have recognized corollary rights like training at a range (striking down Chicago’s ban on firing ranges because it gutted the ability to exercise the right). If government may not ban the training necessary to exercise the right, it likewise may not throw up non-historical, categorical roadblocks to acquisition after a buyer has already passed a background check. Bruen forbids that roadblock of “because we think it’s safer” balancing.

Colorado points to “public health” analogies and intoxication laws to defend its waiting period, but those analogues regulate dangerous conduct, not the presumptively lawful acquisition of constitutionally protected arms by the entire populace. The 10th Circuit’s New Mexico decision recognizes the difference: generalized “cooling-off” laws burden the core right without a founding-era pedigree.

Real-World Harms the Law Ignores

Delays are not cost-free. A battered spouse, a stalking victim, a small business owner threatened by repeat criminals—each may have an urgent need for a defensive tool now, not three days from now. Colorado’s law transforms the government into the arbiter of how long a cleared citizen must remain defenseless. The Supreme Court has rejected similar logic in adjacent contexts: the State cannot expand police powers or home intrusions under vague “caretaking” theories, and after Bruen, it cannot expand firearms restrictions with ahistorical “public health” rationales either.

What This Ruling Signals Garcia v. Polis

The 10th Circuit’s message is unmistakable: waiting periods like New Mexico’s are likely unconstitutional because they lack historical grounding under Bruen. Colorado’s version is no different in kind; it just substitutes three days for seven. The core defect is the same, presuming that a cleared buyer is dangerous and imposing a blanket delay on exercising a fundamental right. When this question reaches the 10th Circuit on Colorado’s law, the court should apply its own reasoning consistently.

Back to First Principles

Heller teaches that the 2nd Amendment secures an individual the natural right to keep arms for self-defense. McDonald tells us States are bound by that right. Bruen tells governments they may not infringe it with novel policy experiments lacking historical roots. Mandatory, one-size-fits-all waiting periods fail each step: they burden the law-abiding, they do not meaningfully target criminals, and they have no founding-era analogue. Colorado’s law is not a “modest” condition on commercial sales—it is a categorical delay imposed precisely at the moment a citizen has done everything the law requires and simply seeks to take possession of their arm. That is a violation of the right to keep arms.

Colorado lawmakers have abused their power by enacting a policy grounded in suspicion, not in our constitutional tradition. The 10th Circuit’s New Mexico ruling underscores what we have argued from day one: cooling-off is not a historical exception to the 2nd Amendment—it is a modern invention aimed at the innocent. Our lawsuit will keep pressing that point until Colorado’s three-day delay is struck down and law-abiding citizens are no longer forced to wait to exercise a fundamental right.