Update: New Mexico Governor’s Unconstitutional Carry Ban Temporarily Halted, NRA Files Suit

On September 8, New Mexico Gov. Michelle Grisham (D) surprised her political opponents and allies when the politician purported to suspend the U.S. and New Mexico constitutions and state statute using a “public health emergency order.” The governor’s directive attempted to unilaterally prohibit law abiding gun owners from exercising their right to bear arms for 30 days in Albuquerque and the surrounding Bernalillo County.

Coming on the heels of the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, some of those tasked with enforcing the governor’s edict immediately recognized the improper measure as illegitimate and refused to enforce or defend it. In Bruen, the Court held, “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

Further, Article II Section 6 of the New Mexico Constitution protects the right to bear arms. The provision does permit the state legislature to regulate “the carrying of concealed weapons” (within the bounds of the federal Second Amendment). However, the relevant provision states, “No law shall abridge the right of the citizen to keep and bear arms for security and defense.”

As some observers have pointed out, Grisham seemed to telegraph her intent to use “public health” as a justification for all manner of government control at the May 5 Johns Hopkins University Health Policy Forum. The Johns Hopkins Bloomberg School of Public Health is named for former New York City mayor and billionaire Michael Bloomberg, who has given over $3 billion to his alma mater. Bloomberg founded the gun control group Everytown for Gun Safety.

At the forum, Grisham stated, “Everything is a public health issue. Gun violence is a public health issue.”

Shortly after Grisham put forward her order, Bernalillo Sheriff John Allen issued a statement explaining,

the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold. I am wary of placing my deputies in positions that could lead to civil liability conflicts, as well as the potential risks posed by prohibiting law-abiding citizens from their constitutional right to self-defense.

During a September 11 press conference, Sheriff Allen made clear that his office would not enforce the governor’s order.

On September 12, New Mexico Attorney General Raul Torrez notified Grisham that he would not defend her gun control order against litigation. In a letter to the governor, Torrez stated,

Though I recognize my statutory obligation as New Mexico’s chief legal officer to defend state officials when they are sued in their official capacity, my duty to uphold and defend the constitutional rights of every citizen takes precedence. Simply put, I do not believe that the Emergency Order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster.

On September 13, U.S. District Court Judge for the District of New Mexico David Urias granted a temporary restraining order blocking Grisham’s carry ban in response to a federal lawsuit filed by pro-gun groups. The governor’s outrageous conduct proved too much for the Biden appointee. Citing BruenDistrict of Columbia v. Heller (2008), and McDonald v. Chicago (2010), Judge Urias acknowledged “given the directives and holdings of this Supreme Court precedent, the Court concludes that Plaintiffs have shown a substantial likelihood of success on the merits of their Second Amendment claim.”

Also on September 13, a group of U.S. Senators called on Attorney General Merrick Garland to vindicate New Mexicans’ Second Amendment rights. The senators, including John Kennedy (R-La.), Marsha Blackburn (R-Tenn.) and Tom Cotton (R-Ark.), demanded that the Department of Justice “act swiftly to stop this unconstitutional power grab.” The group added that action is necessary “to show that this kind of unconstitutional abuse will not be tolerated in New Mexico or anywhere else in the United States.”

Federal law (18 U.S.C. § 242) provides, in part,

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States… shall be fined under this title or imprisoned not more than one year, or both;

On September 14, NRA filed a suit challenging Grisham’s unconstitutional order in state court. Every Republican member of the New Mexico legislature, the Republican Party of New Mexico, and the Libertarian Party of New Mexico joined NRA as plaintiffs.

As previously noted, the New Mexico Constitution protects “the right of the citizen to keep and bear arms for security and defense.” In the case State Ex Rel. Whitehead v. Vescovi-Dial (1997), the Court of Appeals of New Mexico made clear that the state right to keep and bear arms provision “stands shoulder to shoulder with the most basic guarantees of individual liberty against the power of the state.”

Grisham’s order also presents separation of powers issues. The state Constitution vests legislative authority in the legislature. New Mexico law generally allows law-abiding individuals to carry firearms openly or concealed with a license. Grisham has a constitutional duty to execute state law—and the Constitution. She must allow people to exercise the legal rights granted to them. There are no exceptions. The Constitution does not take a vacation during so-called emergencies. The New Mexico Supreme Court directly told the governor this in Grisham v. Reeb (2020), making clear that the state’s Public Health Emergency Response Act’s “purpose is to … ‘provide the state of New Mexico with the ability to manage public health emergencies in a manner that protects civil rights and the liberties of individual persons.’”

On September 15, Grisham amended her order to limit the firearm prohibition to “public parks or playgrounds, or other public area provided for children to play in . . . .” This vague prohibition still has the same problems as the original order: it violates the right to keep and bear arms and the separation of powers.

Making matters even more interesting, on April 7, 2021, Grisham signed the New Mexico Civil Rights Act.

That law provides,

A public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall not subject or cause to be subjected any resident of New Mexico or person within the state to deprivation of any rights, privileges or immunities secured pursuant to the bill of rights of the constitution of New Mexico.

Further, the act waives sovereign immunity for the government and persons working on its behalf and notes,

In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico.

A “public body” is defined to include, “a state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico.”

Prevailing plaintiffs may secure up to $2 million in damages and attorney fees.

Gun rights supporters should continue to follow for the latest on the effort to combat Grisham’s unconstitutional order and vindicate New Mexicans’ Second Amendment rights.

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