New Mexico Gov. Michelle Lujan Grisham made quite a splash with her September 8 "public health emergency order," which purported to suspend the right to bear arms in Albuquerque and surrounding Bernalillo County. But the reaction may have been different from the one she anticipated: Instead of lauding her courage in taking a bold step against the "epidemic" of gun violence, fellow Democrats noted that her ban was blatantly at odds with the U.S. Supreme Court's Second Amendment precedents—a point that a federal judge reinforced last week by issuing a temporary restraining order (TRO) that blocks enforcement of Lujan Grisham's edict.
In the TRO, U.S. District Judge David H. Urias, who was appointed by President Joe Biden, noted that the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen "will likely control in the instant case," which combines lawsuits by several Bernalillo County residents and various gun rights groups. In Bruen, the Court rejected New York's requirement that residents demonstrate "proper cause" before they were allowed to publicly carry guns for self-defense. The justices ruled that the Second Amendment "presumptively guarantees" the right to bear arms in public, requiring New York to demonstrate that its policy was "consistent with this Nation's historical tradition of firearm regulation."
New York had failed to meet that test, the Court concluded. "Apart from a few late-19th-century outlier jurisdictions," Justice Clarence Thomas wrote for the majority, "American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense." Yet that is exactly what Lujan Grisham attempted to do. "Given the directives and holdings of this Supreme Court precedent," Urias said, "Plaintiffs have shown a substantial likelihood of success on the merits of their Second Amendment claim."
Lujan Grisham knew all of that, of course. In fact, she presented her order as a challenge to "current court actions," guided by Bruen, that "suggest that the Second Amendment is an absolute right." Her emphasis on "absoluteness" was a red herring, since the decisions that offend her do not say that every gun regulation is unconstitutional. More to the point, her order plainly defied a Supreme Court decision directly on point, as Urias readily recognized.
The TRO came five days after Lujan Grisham issued her order, which threatened Bernalillo County residents, including gun owners who have concealed carry permits, with fines up to $5,000 if they dared to exercise a right explicitly recognized by the Supreme Court. But it was immediately clear that the governor's stunt was a step too far even for people you might expect would be sympathetic to her agenda.
Albuquerque Police Chief Harold Medina said he would not enforce the gun order. Albuquerque Mayor Tim Keller, a Democrat, backed up Medina, saying the Albuquerque Police Department "is not responsible for enforcing the governor's ban," although "our officers will continue to enforce all criminal laws, combat gun violence, and push for needed justice."
The day that Lujan Grisham issued her order, Bernalillo County Sheriff John Allen, also a Democrat, said "the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold." He added that he was "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 [exercising] their constitutional right to self-defense."
At a press conference that Monday, Allen explicitly said his deputies would not enforce Lujan Grisham's "unconstitutional" order, which he said "will not do anything to curb gun violence." Rather, it would "punish law-abiding citizens" for exercising "their constitutional right of self-defense." Allen said he learned of the order just minutes before it was published, adding that Lujan Grisham knew "this was solely her decision," since "we as law enforcement did not agree with the order."
Lujan Grisham understood that she was defying Bruen, and she admitted that her edict would have no effect on the behavior of criminals. Yet her response to Allen's criticism was contemptuous. "I don't need a lecture on constitutionality from Sheriff Allen," she said. "What I need is action. What we need is for leaders to stand up for the victims of violent crime."
The governor implied that Allen had failed to do that. "We've passed common-sense gun legislation, including red flag laws, domestic violence protections, a ban on straw purchases, and safe storage laws; dedicated hundreds of millions of dollars to a fund specifically to help law enforcement hire and retain officers; increased penalties for violent offenders and provided massive support to intervention programs," she said. "We've given you the tools, Sheriff Allen—now stop being squeamish about using them. I will not back down from doing what's right and I will always put the safety of the people of New Mexico first."
Allen was not the only Democrat who was troubled by Lujan Grisham's stance. "I support gun safety laws," Rep. Ted Lieu (D–Calif.) said on September 9, but the governor's order "violates the U.S. Constitution," and "there is no such thing as a state public health emergency exception to the U.S. Constitution." Gun control activist David Hogg concurred.
Raúl Torrez, New Mexico's Democratic attorney general, joined the chorus of critics a few days later. "I do not believe that the Emergency Order will have any meaningful impact on public safety," he wrote in a letter informing Lujan Grisham that his office would not defend the order. "More importantly, I do not believe it passes constitutional muster."
The Albuquerque Journal's editorial board agreed. Saying the governor "shouldn't break the law" in the name of "fighting crime," the paper criticized Lujan Grisham for "abusing the emergency public health powers granted to the governor's administration by state lawmakers in the wake of 9/11." It noted that "Lujan Grisham has dug herself into a legal and political hole from which she cannot emerge successfully."
The American Civil Liberties Union of New Mexico unsurprisingly did not leap to the Second Amendment's defense. But it worried that Lujan Grisham's "use of emergency powers could lead to overzealous policing and senseless incarceration."
Santa Fe New Mexican columnist Milan Simonich noted that the governor had "picked a fight she cannot win," which he worried would undermine causes she supports. "Republicans eager to snipe at the governor have an easy avenue," Simonich wrote. "They say her order is unconstitutional, and odds are good they can prove their contention in a courtroom. With her overreach, Lujan Grisham also has alienated people who otherwise support her efforts to beef up policing and drug treatment programs."
Lujan Grisham "acknowledges thugs, thieves, and drug dealers will continue carrying guns," meaning "her order theoretically applies only to people who obey laws," Simonich said. "As far as lawbreakers are concerned, an executive order to disarm isn't worth the paper it's printed on.…All the noise Lujan Grisham is generating takes the focus off enforcement and creates a different target—the governor herself."
On Friday, two days after Urias blocked her gun decree, Lujan Grisham announced that she had "issued an updated public health order" that, among other things, "remov[es] the previous provision around firearms and replac[es] it with a provision that temporarily suspends the carrying of firearms at parks and playgrounds in Albuquerque and Bernalillo County." She made no mention of the TRO or the Second Amendment.
"I'm going to continue pushing to make sure that all of us are using every resource available to put an end to this public health emergency with the urgency it deserves," Lujan Grisham said. "I will not accept the status quo—enough is enough."
The governor's press release included a quote from New Mexico House Speaker Javier Martínez (D–Albuquerque). "My wife and I are raising our two young children in Albuquerque," he said. "I want them—and all New Mexicans—to not only feel safe in our communities but also feel proud of this place we call home. Our commitment to these issues is deep and it is personal. We will not let the politics of the day, or anything else, distract us from working together—city, county, and state leaders and law enforcement—to move forward real solutions that make our communities safer."
What Martínez calls "the politics of the day" was actually a bipartisan backlash against the governor's attempt to rule by decree, using dangerously broad "emergency powers" that she claimed authorized her to violate a clearly established constitutional right. The fact that she fell flat on her face, provoking widespread criticism instead of the applause she expected, is an encouraging sign that Americans, regardless of their partisan affiliation, still understand the threat posed by such rampant authoritarianism.