You passed the background check. You paid. The gun is yours. And the state still makes you go home empty-handed and wait — now a federal judge is weighing whether it can.
On Monday, August 24, 2026, Senior U.S. District Judge John L. Kane heard oral argument on the cross-motions for summary judgment in Rocky Mountain Gun Owners & Garcia v. Polis — the case that could decide whether Colorado’s 3-day waiting period survives. Kane took notes, tipped his hand to neither side, and promised a thorough ruling built to withstand appeal: “Frankly, it’s an awesome task.” The details are below, and his pre-argument order is hosted here.
Colorado’s waiting-period law — C.R.S. § 18-12-115, enacted as HB23-1219 and in force since October 1, 2023 — bars a dealer from delivering a firearm to a buyer until at least three days after the sale, regardless of how fast the background check clears. You can be fully approved and fully paid, and the state still puts a mandatory delay between you and the property you now own.
The question in court isn’t whether you can be checked. It’s whether the state can make an approved, law-abiding buyer wait to receive a gun that is already theirs.
In October 2023, Rocky Mountain Gun Owners — the state’s “no compromise” Second Amendment group — and firearms advocate Alicia “Boomstick Babe” Garcia sued Governor Jared Polis to block the delay (Rocky Mountain Gun Owners v. Polis, No. 1:23-cv-02563-JLK, D. Colo.). They’re represented by Mountain States Legal Foundation — the same firm carrying the SB25-003 challenge, Del Toro v. Polis. Judge Kane denied their request for an early injunction, the Tenth Circuit affirmed that denial in 2024, and the fight has now reached the decisive stage: cross-motions for summary judgment, argued August 24, 2026.
For the gun owners, MSLF attorney Michael McCoy told the court the ground has shifted decisively since Kane’s first ruling. He pointed to two recent decisions:
Reviewing Hawaii’s “vampire rule” barring carry on private property, the Supreme Court’s 6–3 opinion (with Justice Alito) treated even being separated from your firearm for a single lunch hour as an unconstitutional burden. McCoy’s point: “One hour was an unconstitutional burden and in this case, we’re talking about three days.”
The federal appeals court that governs Colorado struck down New Mexico’s 7-day waiting period, holding that “common sense dictates that the right to bear arms requires a right to acquire arms.” McCoy called it, plainly, “a gift” — arguing the critical questions in the Colorado case “have been answered by Wolford and Ortega.” He also cited the Supreme Court’s 2026 United States v. Hemani, which rejected categorically stripping a casual marijuana user of gun rights.
For the state, attorney Joseph Michaels urged Kane to hold the line. His core analogy: “If a three-day background check is constitutional, how can a three-day waiting period not be?” He worked to distinguish New Mexico’s struck-down law — Colorado’s, he argued, runs only against buyers (not sellers) and grants fewer exceptions, so it applies more evenly. And he drew a line between owning and getting: Wolford, he said, protected a gun someone already owned, whereas “acquire is something that happens before one comes into possession of a firearm, making it separate from the right to have and bear arms.”
On rebuttal, McCoy called that split “ridiculous” and chuckled at it outright: “I don’t see how there is a right to possess arms but not a right to acquire them in the first place.”
Days before argument, Judge Kane issued a rare agenda order telling both sides exactly what to be ready to answer. It’s the clearest window into how this case will actually be decided — and we’ve hosted it in full.
Kane opened by affirming his duty to follow binding precedent — Heller, McDonald, Bruen, Rahimi, and the Tenth Circuit’s own RMGO v. Polis and Ortega. He flagged that appellate judges have already called it “an open question whether Ortega casts doubt on the constitutionality” of “Colorado’s three-day waiting period,” while noting that the earlier RMGO decision “remains the law of the circuit.” Then he asked the two questions that may decide everything:
1. What did “acquire” mean? Following Heller and Bruen, Kane asked whether the scope of the right must first be fixed by a historical analysis of the word acquire — and, if so, whether that founding-era meaning covers buying a gun today. 2. Is a delay a “condition” on the sale? Keeping Ortega in mind, he directed the parties to argue whether the waiting-period law “imposes a condition or qualification on the sale of arms” — the exact kind of burden the Second Amendment framework scrutinizes.
Kane listened without interrupting either lawyer, said nothing about when or how he would rule, and promised to be thorough — expecting his decision to be reviewed by the Tenth Circuit no matter which way it goes.
Before he reaches history, Judge Kane has to reconcile two binding Tenth Circuit decisions that point in opposite directions — and he ordered both sides to address it.
In 2024, in Rocky Mountain Gun Owners v. Polis, a Tenth Circuit panel upheld Colorado’s age-21 purchase law. Judge Richard Federico wrote that an age condition on a gun purchase falls under Heller’s carve-out for “laws imposing conditions and qualifications on the commercial sale of arms” — and so never reaches the Second Amendment at all. A year later, in Ortega v. Grisham, a different panel (Judges Tymkovich and Eid, over a dissent by Judge Matheson) held 2–1 that New Mexico’s seven-day waiting period is not such a condition, and that “cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms.”
New Mexico — with Colorado’s support — asked the full Tenth Circuit to rehear Ortega. The court refused, 10–2. Federico, who wrote RMGO, dissented from that refusal, warning of an “open question whether Ortega casts doubt on the constitutionality of all these laws,” and that the conflict “invites the perception — fair or not — that the Second Amendment rights of Americans might rise or fall depending on the district court where they file or the panel of appellate judges they draw.”
The state’s whole case rides on RMGO.
The challengers’ whole case rides on Ortega. Kane has to pick a lane.
At argument, McCoy said Ortega settles it: “The first ‘cooling off’-style waiting period did not come into existence until the 1990s. Thirty years ago. Hardly a tradition. … How does Colorado’s firearms waiting period law now survive? It doesn’t. It simply can’t.” Michaels, for the state, argued Colorado’s three days track the federal background-check window that Ortega itself called “more consistent with historical traditions” — and that “a criminal defendant has the right to a speedy trial, but not to an immediate trial.” Kane, a 1977 Carter appointee who denied the injunction in this same case in 2023, also repeated his own doubts about the workability of the Supreme Court’s history test — noting that parties “could craft distinct records and present varying arguments in different cases.”
The state’s own framing gives the game away. If the justification for the wait were the background check, the wait would end when the check clears — often in minutes. It doesn’t. The clock runs a full three days after you’ve been approved and paid, which means the delay isn’t doing the checking — it’s doing something else: rationing the moment a free citizen may take possession of arms that are already, legally, theirs.
That falls hardest on exactly the people the right exists to protect — someone facing a credible, immediate threat who is told the Constitution’s answer is “come back in 72 hours.” A right you must wait for is a right the state has put on a timer. As the Tenth Circuit already put it in Ortega, the right to bear arms requires a right to acquire them — and a mandatory delay is a hindrance on that acquisition. Under the founding-era meaning of “infringe” — to hinder, to encroach — that is the whole ballgame.
The check protects the public. The wait just punishes the patient.
One does the work; the other only runs the clock.
Rocky Mountain Gun Owners took Colorado to federal court over the 3-day wait, and Mountain States Legal Foundation is the firm arguing it — both carried on member and donor dollars, not tax money. If you want people standing in the courtroom for your right to acquire arms without a state-imposed delay, the most direct thing you can do is join the fighters and fund the lawyers. Add your name. Stand with the people fighting for our rights.
The author of this site is not an attorney and does not practice law. Nothing published here is legal advice, no part of it is offered as legal advice, and reading it creates no attorney-client relationship with anyone. This is Second Amendment advocacy and general-interest commentary written by a private citizen, and it includes opinion.
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