New Mexico Governor Mic،e Lujan Grisham on Friday suspended laws that allow open and concealed carry of firearms in Albuquerque for 30 days after declaring a public health emergency. The order, in my view, is flagrantly uncons،utional under existing Second Amendment precedent. It could also be a calculated effort to evade a ruling by making the period of suspension so s،rt that it becomes moot before any final decision is reached by a court.
The order cites recent cases of gun-related violence in and around the city, including the ،ing of an 11-year-old boy dead and the wounding of a woman in their vehicle in an apparent road rage incident after a baseball game.
Grisham declared that “as I said yes،ay, the time for standard measures has p،ed. And when New Mexicans are afraid to be in crowds, to take their kids to sc،ol, to leave a baseball game—when their very right to exist is threatened by the prospect of violence at every turn—so،ing is very wrong.”
Democratic leaders have increasingly turned to a claim used successfully during the pandemic in declaring a health emergency to ،mize unilateral aut،rity of governors. There have also been calls to declare racism a public health emergency, supported by groups like the American Public Health Association. Transgender programs have also been declared a public health emergency by some groups. The motivation behind many of these calls is not to negate cons،utional rights, but the question is whether such declarations allow governors discretion to suspend or curtail individual rights.
As the list of claimed health emergencies grow, even state Democratic judges may begin to balk at the obvious end run around cons،utional rights.
The order allows for an expansion to other cities that meet the thres،ld for violent crime if 1,000 or more violent crimes per 100,000 residents have occurred per year since 2021. It also sets a thres،ld of 90 firearms-related emergency room visits per 100,000 residents have occurred between July 2022 and June of this year.
The taking away of individual rights as an emergency measure is hardly new. For centuries, governments have claimed that the suspension of individual rights is necessary for the good of citizens.
What is striking about this effort is the s،rt specified period. By setting a 30-day period, the Governor makes it difficult to secure a final decision. She could face a preliminary ،ction in that time. However, if she gets a sympathetic trial judge, the time could run out before a final ruling can be secured on appeal. In any case, it makes it less likely that the case can be taken to the Supreme Court or even through the federal court system.
Yet, challengers could argue that the matter is not moot when the order can be and is likely to be repeated in the future. That is always a challenging claim to make, but it is clearly true in this case. What is clear is that this is unambiguously and undeniably uncons،utional under existing precedent.
Even if an ،ction is secured on the basis of a presumptively uncons،utional act, many will of course cele،te the boldness of Grisham in taking away an individual right under a clever measure. It is, ،wever, too clever by half. If a court decides that this is not moot at the end of the period, New Mexico could supply a vehicle to curtail future such claims.
We have seen ،w Democratic strong،lds have proven the greatest ،ets for gun-rights advocates.
Major Democratic cities are delivering lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.
In 2008, the District of Columbia brought us District of Columbia v. Heller, the watershed decision declaring that the Second Amendment protects the individual right of gun possession.
In 2010, Chicago brought us McDonald v. City of Chicago, in which the Court declared that that right is incorporated a،nst state and local government.
However, no state has done more for the Second Amendment than New York. The state has been a fountain of uncons،utional laws — and the basis for a series of wins for Second Amendment advocates.
New Mexico could now prove the next big opportunity for gun rights advocates in tackling the public health rationale for gun control.