Challenge to N.M. Governor's Ban on Public Gun Carry in Albuquerque and Surrounding County

From the motion for a temporary restraining order in Nat'l Ass'n for Gun Rights v. Grisham, filed yesterday in New Mexico federal court (paragraph numbering removed).

Governor Grisham issued Executive Order 2023-130 (the "Executive Order") on September 7, 2023…. In the Executive Order Governor Grisham declared that a state of emergency exists in in New Mexico due to gun violence.

Based on the Executive Order, [N.M. Secretary of the Department of Health Patrick Allen issued "Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures" dated September 8, 2023 (the "PHE Order")[:] …

[1] No person, other than a law enforcement officer or licensed security officer, shall possess a firearm … either openly or concealed, within cities or counties averaging 1,000 or more violent crimes per 100,000 residents per year since 2021 according to Federal Bureau of Investigation's Uniform Crime Reporting Program AND more than 90 firearm-related emergency department visits per 100,000 residents from July 2022 to June 2023 according to the New Mexico Department of Public Health [which, according to news accounts, includes only Bernalillo County, where Albuquerque is located -EV], except:

[A] On private property owned or immediately controlled by the person;

[B.] On private property that is not open to the public with the express permission of the person who owns or immediately controls such property;

[C.] While on the premises of a licensed firearms dealer or gunsmith for the purpose of lawful transfer or repair of a firearm;

[D.] While engaged in the legal use of a firearm at a properly licensed firing range or sport shooting competition venue; or

[E.] While traveling to or from a location listed in Paragraphs (1) [sic] through (4) [sic] of this section; provided that the firearm is in a locked container or locked with a firearm safety device that renders the firearm inoperable, such as a trigger lock….

Bruen states that the appropriate test for applying the Second Amendment is: "[1] When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. [2] The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command." … The Carry Prohibition flatly prohibits Plaintiffs from carrying handguns (or any other firearm) in public for self-defense. Therefore, Plaintiffs' burden under step one of the Bruen analysis is easily met for the same reason it was met in Bruen….

In Bruen, the State of New York conceded a general right to public carry. Instead, New York argued that that the Second Amendment permits a state to condition handgun carrying in certain areas on a showing of a "need" for self-defense in those areas. The Court held that to "support that claim, the burden falls on respondents to show that New York's proper-cause requirement is consistent with this Nation's historical tradition of firearm regulation." After an exhaustive analysis of the relevant historical tradition, the Court held that New York failed to demonstrate that its law was consistent with the Nation's historical tradition of firearm regulation….

If New York's "proper-cause" requirement for public carry failed Bruen's second step, New Mexico's flat prohibition of public carry under any circumstances necessarily fails Bruen's second step as well. The Court can reach this conclusion without reviewing any of the relevant history, because as a matter of simple logic it is not possible for New Mexico to demonstrate that a flat prohibition on public carry is consistent with history and tradition when even a proper cause requirement for public carry was not….

Plaintiffs [also] desire to go to private businesses open to the public while lawfully carrying a firearm for lawful purposes, including self-defense, without first obtaining the express affirmative permission of the person who owns the property. The Carry Prohibition prohibits that conduct. Last month, in Wolford v. Lopez (D. Haw. 2023), the court issued a TRO and preliminary injunction enjoining a practically identical Hawaii law. Hawaii argued that there was historical support for its prohibition on carriage on private property without consent. After examining the historical record submitted by the state, the court rejected its argument. It wrote:

… The State has not established that the portion of [the statute] that prohibits carrying firearms on private property held open to the public is consistent with this Nation's historical tradition of gun regulation. Because the State has not met its burden, Plaintiffs are likely to succeed on the merits of their challenge to [the statute] to the extent that [the statute] prohibits carrying firearms on private property held open to the public.

The historical record has not changed since last month. Like Hawaii, New Mexico will not be able to show that the Carry Prohibition's prohibition on lawfully carrying firearms into private businesses in Affected Areas open to the public without first obtaining the express affirmative permission of the person who owns the property is consistent with this Nation's historical tradition of gun regulation. There is no such historical tradition. Therefore, the State is unable to carry its burden….

I intend to blog the other side's argument when it becomes available. (You can read the full order, which is written to last until Oct. 6, here.) In the meantime, here's the relevant part of the New Mexico Constitution's right to bear arms provision (enacted in 1971):

No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

City of Las Vegas v. Moberg (1971) interpreted the 1912 constitutional right to bear arms  provision ("The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons") as indeed invalidating laws that ban both open and concealed carry of guns. The argument in this federal case doesn't rely on the state constitutional provision (likely because federal courts generally can't issue injunctions against state governments violating state law), but I thought it worth noting, since the New Mexico Governor is of course obligated to comply with the state constitution.

Thanks to Louis K. Bonham for the pointer.

Comments

[Mr. Bumble]

"You say you'll change the Constitution
Well, you know
We all want to change your head
You tell me it's the institution
Well, you know
You'd better free your mind instead
But if you go carrying pictures of Chairman Mao
You ain't going to make it with anyone anyhow"

[Mr. Bumble]

But New Mexico Gov. Michelle Lujan Grisham is defending her order, claiming it was necessary to protect “public health,” and besides, her oath to uphold the Constitution was not “absolute.”

“No constitutional right, in my view, including my oath, is intended to be absolute,” she retorted after being asked whether her order violated her oath of office to “uphold the Constitution.”

Giving new meaning to the phrase "you can't fix stupid".

[TwelveInchPianist]

"and besides, her oath to uphold the Constitution was not “absolute."

I'll bet Trump's kicking himself for not thinking of that one first.

[Rev. Arthur L. Kirkland]

If you dumbasses can't distinguish 'no Constitutional right is absolute' from 'an oath to uphold the Constitution is not absolute' . . . you are precisely the half-educated, roundly bigoted, obsolete gun nuts this disaffected right-wing blog seeks to attract as an audience.

Carry on, clingers . . . but only so far as your betters permit.

[Mr. Bumble]

Sure, so when a witness is sworn, the oath to "tell the truth, the whole truth and nothing but the truth" is only a pinky oath.

[TwelveInchPianist]

Who's the dumbass?

From ABC News:

"No constitutional right, in my view, including my oath, is intended to be absolute."

[Mr. Bumble]

The Rev. is another proud graduate of Queen A's school of obfuscation and dissembling.

[Scooter]

The "Rev" is just another Low IQ / Low EQ Troll.

[Rev. Arthur L. Kirkland]

How have guys like me kicked the worthless shit out of bigoted right-wingers like you for more than a half-century in the culture war?

A fan of an on-the-spectrum blog catering to antisocial and disaffected misfits should probably be careful about introducing the "Low EQ" concept into any discussion.

[Sisu]

Scooter,

Rev's comment does beg the question: Given the sites new features including the ability to manage "muted commenters", might the webmaster also provide statistical analysis of how many times any one commenter is "muted" ? That ability would allow for the tactical "temporary cancelling" the Rev no doubt would support; and in respect of his comments there may be an opportunity to educate via "classical conditioning".

[Flight-ER-Doc]

And the Impeachment paperwork has already been filed.

But, NM is the communist underbelly of America, and it won't go anywhere.

We should just give the land back to Mexico...or the Apache.

[Alpheus W Drinkwater]

I think I saw Communist Underbelly perform at Hammerjacks in Baltimore back in the 80's.

[Rev. Arthur L. Kirkland]

I have not read the oath in question, but the governor's comment seems very wrong. She wouldn't get to pick and choose with respect to enforcing the constitution, in my judgment.

Constitutional rights are not, in general, absolute. The obligation to enforce a constitution is a different matter.

[Scooter]

LOL, Meat.

Keep breathing our oxygen; at least as long as your betters continue to allow you to.

[Rev. Arthur L. Kirkland]

Planning to enjoy the next few decades of the modern American culture war as much as you have the most recent 50 years of liberal-libertarian American progress?

I know I will enjoy watching right-wing racism, Republican misogyny, wingnut gay-bashing, and other forms of conservative bigotry continue to recede in America, along with continuing diminution of superstition, backwardness, and hayseed ignorance in modern American life.

Guys like you should try to be nicer -- the culture war's winners are not obligated to continue to be magnanimous toward America's vestigial, vanquished conservatives.

[CindyF]

Governor Grisham should be removed from office for deliberately and with forethought violating the U.S. Constitution. Every state concealed-permit carrier should sue her for violating their civil rights. She should NOT be granted sovereign immunity since she has acknowledged her order is against the Constitution. She also acknowledged that criminals would not obey such an order but it would "send a message". Yeah, the message would be that it is open season on law-abiding gun owners, business owners, and every other person in the state.

Then, the Governor should be tarred and feather and run out of town on a rail.

[MaverickNH]

Is this just a “The Mouse That Roared” incident, where NM’s governor is just trying to get some DNC/media attention? She come from a longtime NM political family in a state that’s been Dem for a long while. Vying for the US Senate seat in the coming election? Looking for a seat at the Bloomberg funding table?

[Life of Brian]

That's how I took it. Watching the press conference, her thought process and response to some fairly straightforward questions about why this was better than -- just for example -- increased enforcement of long-established criminal laws was generally incoherent, and she didn't appear to care that it was incoherent.

At one point she came disastrously close to saying "something had to be done; this is something; I had to do this."

[MatthewSlyfield]

"At one point she came disastrously close to saying “something had to be done; this is something; I had to do this.”"

That does seem to be her thought process.

My response to this kind of argument:
Something must be done.
Hitting you upside the head with a 2x4 is something.
Do you see the problem yet?

[Rev. Arthur L. Kirkland]

If you think the culture war's victors should take the gloves off in dealing with the culture war's roadkill . . . you might have a point.

[croaker]

Just keep in mind that you're the roadkill.

[Social Justice is neither]

They've found that by screaming "public health EMERGENCY" they can do anything they like from jailing dissidents to rigging elections to imprisoning the population for years on end.

[hobie]

Had she said that NM law enforcement was already enforcing the laws... there's just more guns and gun nuts than there are police...then she might have come off better. But, she didn't

[Life of Brian]

Actually, to me that was one of the most incoherent parts. When asked about treating criminals like criminals, she repeatedly said "we can't arrest them all" or "we can't lock them all up" as a rationale for why she needed to turn an even broader swath of people into criminals by outlawing simple carry.

[Flight-ER-Doc]

The ABQ DA has said it will not be enforced there.

[Kristian H.]

More like a dry run for a national injunction? See how it plays out in a ‘sandbox.’

[DRM]

She come from a longtime NM political family in a state that’s been Dem for a long while.

I'm wondering at your definition of "a long while". The state had a Republican governor in 2018, and a Republican House in 2016.

[Life of Brian]

The state had a Republican governor in 2018, and a Republican House in 2016.

Those sounded like very careful examples, and sure enough -- in a single sentence you named most of the onesie-twosie red positions for decades in an otherwise sea of blue.

Did you think nobody was going to look?

[DRM]

Careful examples? They were the most recent years on two of the three principal institutions of policy-making, thus setting a number on MaverickNH's "a long while".

As far as those two being "most of the onesie-twosie red positions for decades", if we look at the page you cite for the last 20 years, there's also the Lieutenant Governor, the Secretary of State, the Auditor, the Treasurer, two Commissioners of Public Lands, one U.S. Senator, a period where the U.S. House delegation was 2 R to 1 D, and voting for Bush/Cheney in 2004.

[MaverickNH]

"… in a state that’s been Dem for a long while…"

I probably should have said "largely Dem, with a few exceptions".

[Mr. Bumble]

From early reports, there is hesitation on the part of local law enforcement to enforce this order on the basis that doing so would violate their oath of office.
Are they on solid ground? Is this similar to a soldier's right to not comply with an illegal order?

[Krychek_2]

The issue is who gets to decide if the order is illegal. You think it's illegal because you have a specific interpretation of the Second Amendment; others with a different interpretation might disagree. So, who gets to resolve the conflict? And if a police officer sees someone with a weapon that violates the order, he doesn't have the luxury of immediately getting a ruling from the Supreme Court; he has to make an immediate decision about whether to enforce it or not.

I think that if you are a soldier claiming an order is illegal, or a police officer claiming the governor's order is illegal, you damn well better be on solid ground. If the soldier turns out to be wrong, he's going to be court martialed.

[darkknight9]

And if the cop hasn't talked to his fellows at work and he's wrong, he's out of a job.

[Mr. Bumble]

Police decide which laws to enforce everyday.

[Guardian253]

The State AG and the office of the AG employs subject matter experts with law degrees. LEOs have associates degrees from online colleges. Who is more well suited to determine of a law is legal or not? A constitutional scholar or someone who doesn't even have a bachelors degree?

[Mr. Bumble]

"Who is more well suited to determine of a law is legal or not? "
First it isn't a "law" but an executive order premised on public health.
Let the health department employees enforce it.

"Who is more well suited to determine of a law is legal or not? A constitutional scholar or someone who doesn’t even have a bachelors degree?"
The idea that AG lawyers are "Constitutional scholars" is laughable on its face and those cops may (or may not) have bachelors degrees but are given the power to use deadly force to enforce the law.

[hoppy025]

Firstly, many left wing "scholars" are patently dishonest.

Secondly, that's not the point here. This is an executive order from the moonbat governor. There is no advisory opinion from the state AG that it is constitutional.

Thirdly, if a state governor passed an EO ordering the rounding up and locking up homosexual men to stop the spread of STDs, you wouldn't be so deferential if a cop decided to enforce it, even if there was an "advisory opinion" from a "scholar."

[mydisplayname]

Great analogy!

[Rev. Arthur L. Kirkland]

Firstly, many left wing “scholars” are patently dishonest.

<Many left wing "scholars" are patently dishonest.

Right-wing "scholars" are roundly bigoted (or, at least, bigot-hugging), disaffected, obsolete assholes. Many of them are on-the-spectrum, antisocial culture war casualties seething at uppity modern women and clinging to childish superstition.

Where is the hope for America, hoppy025?

[Scooter]

LOL, Meat.

Your betters are watching.

And, taking notes.

[Rev. Arthur L. Kirkland]

Are you planning to get in line behind LaVoy Finicum, Ashlii Babbitt, and the insurrectionists serving years in prison for crossing their betters?

[Aubrey LaVentana]

Blessed are the cheesemakers, Rev.

https://www.youtube.com/watch?v=9tghPHZXoeE

[Aubrey LaVentana]

Bernalillo County Sheriff's Office and Albuquerque Police Department have attorneys. So does, presumably, the labor union representing the peace officers. As do many of the people against whom this health order may be enforced.

[DRM]

New Mexico police officers know very well that this governor signed a law stripping them of qualified immunity in state cases where they're accused of violating the rights guaranteed by the state constitution.

Only a particularly stupid LEO is going to even consider enforcing this idiotic order when it'll be his personal assets on the line if he's found to have violated the state constitution's specifically-enumerated individual right to keep and bear arms for any lawful purpose.

[Currentsitguy]

And that is the inherent flaw or bug in a society in which everything is decided eventually by a court. The legal system is by necessity a ponderously slow system. In the meantime terrible violations can occur, in this case at least a month's worth.

I, as an individual citizen can be arrested immediately if I am seen violating a law or endangering the public. When an elected official does the same, it can take months, or sometimes even years, for someone to put a stop to them.

[hoppy025]

That problem could be stopped easily if we removed qualified and legislative immunity and imposed criminal penalties for promulgating unconstitutional laws or actions.

[Currentsitguy]

No doubt. QI is the worst thing to ever come out of American Jurisprudence.

[Scooter]

Certainly needs to be sharply curtailed. I can see a very limited window where an LEO, acting in a crisis, sincerely believes they are doing so legally.

[great Unknown]

This may be an interesting test, since in NM, qualified immunity no longer applies. As noted by several LEOs in stating that they would not order their men to enforce this for fear of civil suits.

BTW, as noted by Professor Volokh, this is not only a 2A issue but a direct confrontation with the gun rights guaranteed in the NM Constitution.

[Brett Bellmore]

"You think it’s illegal because you have a specific interpretation of the Second Amendment; "

The governor has all but admitted that it's illegal, and she knows it; How else would you interpret her saying that her oath to the Constitution isn't absolute?

There are legitimate arguments about the reach of the 2nd amendment, but this order is so far beyond them that even loons like David Hogg came out and said that it crossed the line.

[Tom for equal rights]

It doesnt take a constitutional scholar or even a new lawyer to understand the order is unconstitutional
A) the plain meaning of 2a is pretty obvious, except by those that want to ignore the "the right of the people"
B) after Heller, McDonals, Bruen, its pretty much common knowledge among everyone. I doubt any LEO would not have knowledge of 2A or of the holding in those cases.

[Krychek_2]

Except it doesn’t say whether it means the collective people or individual people. And my point is not to resolve that question, which we’re not going to do here. Rather, it’s to make the point that it’s dangerous to assume that it’s crystal clear what the right answer is. But don’t let that stop you from boldly proclaiming that you’re right and anyone who disagrees with you is either lying or stupid.

[Joe_dallas]

The claim that the 2a is limited to a collective right is simply inane / completely illogical based on the historical record.

considerable historical record exists for the right to keep and bear arms for the common defence and self defense. The most logical reading of the militia clause based on the historical writings of the time was the right of the people to form militias for the common defense. The second clause " the right of the people" follows closely with the concept of the right for self defense mentioned frequently in the historical record. Lastly, the right to Keep and bear arms limited to when serving in a militia ie a collective right is a belief pulled out thin air as evidenced by the comletel lake of any historical record discussing a limitiation to keep and bear arms only to times when serving in the militia.

[Krychek_2]

Like I said, anyone who disagrees with you is either lying or stupid. You just keep telling yourself that if it makes you feel better.

[Joe_dallas]

Krychek_2 1 hour ago
Flag Comment Mute User
Like I said, anyone who disagrees with you is either lying or stupid. You just keep telling yourself that if it makes you feel better.

You might try to look in the mirror

The claim you espoused that 2a is only a collective right is truly inane. There is absolutely zero historical record that 2A was intended to be limited to a collective right, there is zero historical record that 2A was limited to when serving in the militia. Anyone claiming otherwise is either stupid or completely dishonest.

If anyone could provide any documentation that 2a was limited to a collective right, then I will be happy to entertain it, However no one has produced any documentation that remotely indicates 2A was intended to be limited to a collective right.

[Krychek_2]

I don't need to look in the mirror -- at least not for this particular thread -- because I have not made the claim that there is no valid argument on the other side. What I have said is that people who refuse to entertain the possibility that the other side may have a legitimate argument should not be entertained when they talk and act as if their argument is the only valid one.

With respect to the collective right argument, your statement that "no one has produced any documentation that remotely indicates 2A was intended to be limited to a collective right" may be true for this thread, but in other places that argument has been exhaustively put forward, analyzed historically, had documentation provided for it, and argued for. That scholarship is out there; spend a few minutes on google and you'll find it. I would encourage you to at least familiarize yourself with those arguments before you dismiss them out of hand.

[Joe_dallas]

That scholarship is out there; spend a few minutes on google and you’ll find it. I would encourage you to at least familiarize yourself with those arguments before you dismiss them out of hand.

I have looked at the arguments along with the historical citations put forth that the right to keep and bear arms was limited to when serving in the militia. As I stated, there is no historical record supporting that premise.

that scholarship - supporting that position simply isnt supported by the historical record.

[Brett Bellmore]

"Except it doesn’t say whether it means the collective people or individual people."

Why the hell would it? Collectivism wasn't even a thing back then. The very ideal of 'collective' rights was invented in the 20th century as a way to rationalize violating the 2nd amendment!

"From the framing of the Bill of Rights onward, the individual right view (i.e., individual right for individual purposes such as self-defense) held sway in every venue – courts, commentators, Congress. The collective right view did not begin to gain acceptance in the federal courts until the 1940s, and did not become widespread until the 1970s. At the time of Heller, it was but a few decades old, and had been subject to serious scholarly challenge for most of that brief lifespan."

The supposed constitutionality of gun control was nothing but a fad among legal academics that had no historical basis. It never gained much purchase outside academia.

[Krychek_2]

Collectivism wasn't even a thing back then -- are you for real? There were militias. There were constabularies. There was law enforcement. The idea that collectivism wasn't even a thing back then is so unhistorical as to be an absurdity.

And again, it's not an argument we're going to resolve here, since we haven't resolved it the other thousand times it's been discussed on this blog. But please stop pretending there are no reasonable arguments on both sides. Just on the off chance that you honestly haven't heard it before, here's the argument on the other side: The whole purpose of the Bill of Rights was to restrict the power of the federal government. Most of the Bill of Rights is about individual rights, but not all of it; the Tenth Amendment protects the states. And the purpose of the Second Amendment was to guarantee that the states could keep their own militias.

Now, whether you agree with it or not, that's not a nonsense argument. The only two options are not your interpretation or dishonest stupidity.

[Brett Bellmore]

Yes, there were groups and organizations, which is not at all the same thing as "collectivism".

"The whole purpose of the Bill of Rights was to restrict the power of the federal government."

Mostly, yes.

"Most of the Bill of Rights is about individual rights, but not all of it; the Tenth Amendment protects the states."

Yes, and the parts that are about individual rights use the word, "right". You'll notice it in the 2nd amendment.

"And the purpose of the Second Amendment was to guarantee that the states could keep their own militias."

Close, but not quite. The purpose of the Second amendment was to guarantee that it would be possible to raise a militia, even if those in charge didn't WANT a militia system. By assuring an armed populace from which a militia could be raised in an emergency, even if the organized militia had been discontinued.

After all, even if a well regulated, (Which is to say organized and equipped) militia is necessary to the security of a free state, maybe those running the state don't WANT that freedom to be secure.

The analogy I regularly use is that you might think fire departments were necessary to the security of a community from fires, but if you were worried that arsonists might get control of the government, just allowing organized fire departments wouldn't mean a thing, they might be told to let it all burn, or even help set fires.

No, you'd guarantee a right to own fire fighting equipment, and practice with it, so that a volunteer fire department could be raised even if the local government wanted it to burn, baby, burn.

The 2nd amendment is protection of the ABILITY to raise a militia, even if the government doesn't want it to be possible.

[Krychek_2]

Collectivism is when the state acts collectively to provide goods or services at the expense of the taxpayers. In this case, militias are the good and service provided.

Brett, it's true that states no longer do militias they way they did them in 1789. At this point, we have a professional national guard rather than a muster of all householders as needed, which means that the right is no longer needed, under your theory of the amendment.

Suppose tomorrow we woke up to find that everyone had become an atheist and religion no longer existed. Who would then inherit the right to freedom of religion?

The answer is no one. The answer is that the First Amendment was written for historical reasons that would then no longer exist, and since religion is now dead, the right to practice it is a legal dead letter. To be revived if and when people again become religious.

If in the future, if the states go back to mustering householders as needed whenever the militia's services are required, then you'll have a valid argument. Until then, the historical fact that the militia used to be every able bodied male is simply irrelevant because those facts are no longer true.

[Brett Bellmore]

"Collectivism is when the state acts collectively to provide goods or services at the expense of the taxpayers."

You've redefined "collectivism" into something even Ayn Rand wouldn't have objected to: Anything but anarchism!

Merriam Webster:
"collectivism
noun
col·​lec·​tiv·​ism kə-ˈlek-ti-ˌvi-zəm
Synonyms of collectivism
1
: a political or economic theory advocating collective control especially over production and distribution
also : a system marked by such control
2
: emphasis on collective rather than individual action or identity"

"Brett, it’s true that states no longer do militias they way they did them in 1789. At this point, we have a professional national guard rather than a muster of all householders as needed, which means that the right is no longer needed, under your theory of the amendment."

On the contrary: Under my theory of the amendment, we're living under the precise circumstances the amendment was intended to safeguard us in: The militia system has been largely discontinued, and now government is moving to render it impossible to raise a militia even in an emergency that demands one.

[Krychek_2]

You don't need to raise a militia if there's already one in place, which there is. The national guard.

And that's one definition of collectivism. How is it not collectivist to have public roads, for example, which existed in 1789? It may be a type of collectivism to which Ayn Rand would not object, but taking money from one person to benefit another is collectivist.

[Brett Bellmore]

The National Guard is not a militia, it's a branch of the Army, per Perpich v. DOD. That's why it can be sent overseas even over the objection of a state government.

22 states have state militia in addition to National Guard units, over which the states have exclusive control. But they're all what the founders would have termed "select" militia, the practical equivalent of a standing army.

The point of ACTUAL militias is to make the military power and the people one and the same, as much as possible, in order that the military power can't be used to oppress the people, because it will refuse to be used against itself. That was the threat they saw in standing armies, and the reason that Army appropriations are constitutionally limited to 2 years at a time.

The whole point here was to make sure that there was a military power in the country that wasn't fully subject to government control, and could oppose the government if that became necessary. It was, after all, written by people who'd done exactly that themselves, after all.

[Krychek_2]

Ok, let's indulge your fantasy and see how it plays out. Suppose some unnamed authority decides the feds have overstepped their bounds and decides to muster the state militia, which according to you is every householder with a gun. Who is going to organize them? Who is going to muster them? Who is going to give them orders? For that matter, who gets to decide if the feds actually had overstepped their bounds, or if this is just another insurrection?

What you are proposing is so unworkable, so problematic, so utterly unrealistic, that I'm surprised even you think it's a good idea. The world you're looking for no longer exists, and has not for a very long time.

[MaddogEngineer]

The militia is the people.

The amendment presumes that’s where the keep and bearing arms occurs, and why it may not be infringed. If you disarm the people, the militia can no longer secure a free state.

Further context for the militia was it stood in opposition to oppression from a standing army, which might imperil the freedom of the state. See also 3A which happened to follow it.

[Krychek_2]

Yes, Maddog Engineer, that is the theory. However, as I pointed out in my list of questions to Brett, in practice it is completely unworkable and I notice you didn't even try answering any of my questions.

And here's another one: What happens if you have competing militias? What happens if one group of people with guns decides to mobilize in favor of something, and another group of people with guns decides to mobilize against it? Which one is the true "people"? Which one is the legitimate militia? Just whomever happens to win? Even if it's BLM rioters?

I can't imagine a more dangerous and unworkable solution than what you're proposing.

[Rossami]

It's neither dangerous nor unreasonable. It has been the law for most of the history of our country. And your parade of horribles didn't happen.

So where does that sort of thing happen? Historically, 'government by competing warlords' is the sort of thing most likely to happen in countries without strong traditions of weapon ownership. Warlords can't even get started until you give them a disarmed populace that they can exploit.

[Krychek_2]

The parade of horribles hasn't happened here because the law has mostly been a dead letter; with the exception of lynch mobs, I'm not aware of many occasions in which people armed themselves against the rule of law.

And if you think competing warlords only happen where there isn't a lot of access to weapons, the people of Somalia, Pakistan and Afghanistan would like a word. People there have ready access to weapons and it's nothing but competing warlords.

[Noscitur a sociis]

Except it doesn’t say whether it means the collective people or individual people.

Can you give an example of a law that you think would violate the second amendment under your “collective people” construction?

[Krychek_2]

Yes. Congress passes a law abolishing all state militias.

[Toranth]

Under what power would it be able to do that, even if the 2A didn't exist?

[Krychek_2]

Oh, the same power that would enable Congress to establish a national church or censor the press if the First Amendment didn’t exist. One of the objections to the Bill of Rights at the time it was proposed was that Congress had no authority to do any of that stuff anyway.

[MaddogEngineer]

Wickard v Filburn, NFIB v Sebelius, Obergefell v Hodges [/sarcasm]

Any government that tried to do such a thing probably does not care the limits on its authority to do it. The pretty much summarizes the New Mexico governor here.

[Absaroka]

The local DA is also objecting:

"Bernalillo County District Attorney Sam Bregman, who once served as a Democratic party leader and was appointed by Lujan Grisham, on Saturday joined Albuquerque Mayor Tim Keller and Police Chief Harold Medina saying they wouldn’t enforce the order.

“As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional,” said Bregman, the top prosecutor in the Albuquerque area. “This office will continue to focus on criminals of any age that use guns in the commission of a crime.”"

[DRM]

The hilarious bit here is this governor signed the New Mexico Civil Rights Act in April 2021, which established a right for New Mexicans to sue the state, a city, or county, when their rights under the state’s constitution have been violated, eliminating qualified immunity in state court.

So, it was utterly predictable that the local police chief, local mayor, and local DA weren't even going to consider enforcing this nonsense, because it would put their asses in the sling.

[Brett Bellmore]

Which is what makes me think that this is entirely a PR move, that she's planning on taking her political career national, and wants to secure the backing of the lunatic anti-gun left by making a grand, stupid gesture.

[Kazinski]

You don't want to be the cop when a district court judge rules its clearly established that the governor can't order you to violate.the constitution.

Or you don't think that is clearly established?

[ReaderY]

I think that after Bruen, it’s become pretty clearly established that a state can’t completely ban guns from entire counties. Nothing in Albuquerque seems particularly different from New York City. Bruen suggests qualified immunity might well not be available.

You may not like Bruen. But it’s there.

[MaddogEngineer]

But it's even more than that, isn't it? Under what state law could she claim the authority to do this.

Maybe I've missed the particulars in the greater kerfuffle, but this seems of the same legal cloth, state-wise, with the federal CDC claiming authority to suspend rental evictions.

[Bruce Hayden]

In the west, it is usually the sheriff who gets to decide what laws are enforced, and which don’t. They have a budget, and they get to decide how to spend it. They are also popularly elected. Most of them know that they won’t be re-elected if they start seizing guns and jailing people for having them. Several years ago, the CO Dem governor ordered the county sheriffs’ departments to enforce something they believed violated the 2nd Amdt. Something like 57 of 63 county sheriffs told him to go pound sand. I expect something similar in next door NM.

[CindyF]

If the "experts" on CNN say it is a legal order, I don't think gun owners are allowed to listen to someone that says otherwise. Thus, her orders stands and shall be the law of New Mexico until the 30 days expire or until further notice.

It could be considered sedition and conspiracy for attorneys to file complaints in the Courts contesting the Governor's order. The law professors and attorneys who support the Plaintiffs, or have an opinion and send her a memo stating that her order is not "secure" and "valid" could also be charged with a conspiracy. RICO laws may even apply.

Govern yourself accordingly.

[MaddogEngineer]

Yes, this being Trump adjacent is just icing on the cake.

[Longtobefree]

Their oath is to the state constitution not the governor.
And yes, they are on solid ground.

(and, oh by the way, the existing state of crime is not an emergency)

[Guardian253]

If the State Attorney General, who has a legal education and training, the Office of the AG, who employees subject matter experts, and the Governor say it is legal, then who is it to say that some LEO with an associate's degree from an online college that a law is or is not illegal or unconstitutional. Are they constitutional law scholars?

[MatthewSlyfield]

I haven't seen where the NM AG has weighed in on this. Can you provide a link?

[Lee Moore]

"I voz only vollowing orders"

[Mr. Bumble]

That worked out well for them.

[Ben_]

"…then who is it to say…"

When the officer is sued for false arrest and rights violations, it’s judges and a jury.

[SimonP]

Well, let's play this out.

In the canonical example of the soldier disobeying an illegal order, usually we're thinking of an order to engage in a war crime or similar atrocity, or an order from an officer who himself is breaking the chain of command (e.g., "ordering" a soldier to participate in a coup). The soldier's disobedience is justified by avoiding a loss of life or mutiny.

When LEOs decline to enforce laws that they themselves deem "unconstitutional," what are they protecting people from? Putatively unconstitutional laws. So, in the present example, a LEO might arrest a person for carrying their gun in a place that isn't permitted. That person challenges their arrest in court as pursuant to an unconstitutional law. The law is found unconstitutional, and the case is thrown out. If the case is especially egregious, the arrested person might even have a civil claim against the state. Or the law is found constitutional, and the arrested person is legitimately found criminally liable.

Either way, it's hard to see much justification for the LEO's disregard for the chain of command. Under one path, the LEO's judgment would be vindicated, but the harm avoided would be minimal. Under the other path, the LEO's judgment would prove to have been mistaken.

More generally, I think we know enough about the average intelligence and sophistication of the LEO community to be skeptical of their attempts to interpret and apply the Constitution. A soldier is trained in the ways of war and understands the importance of the chain of command. LEOs are basically just thugs on the public payroll who enforce their not-always-correct understanding of what they think the law is, whenever and wherever they see fit.

I don't think we should let them get carried away with their role as on-the-street constitutional scholars. While a little under-enforcement of a plainly unconstitutional order is probably not going to hurt anyone, we don't want the police deciding that existing caselaw on searches and seizures or the proper treatment of arrestees is too protective of citizens' interests, so they get to disregard that, as well. Not that we have great ways to stop them.

[Mr. Bumble]

When you're getting mugged by a real thug, please don't look to a LEO "thug" for help Like the Minnesota politician who sought to defund the police and now is seeking extra patrols in her neighborhood after being carjacked.

[SimonP]

Don't worry, I'll be permitless carrying whenever I leave the house, so I'll never get mugged. Second Amendment FTW!

[Kazinski]

Well if you live in the 27 states where constitutional carry is the law then you’ll be ok.

[Magister]

LEOs are basically just thugs on the public payroll who enforce their not-always-correct understanding of what they think the law is, whenever and wherever they see fit.

Some of them do things they know are illegal but think (rightly or wrongly) they can get away with.

[Mr. Bumble]

Does that apply to DAs and prosecutors as well?

[Z Crazy]

I'd like nothing more than for cops to have absolute, unlimited power to silence, disarm, search, judge, and punish the crook and the mugger and the carjacker and the gang member whenever they feel like it, however they see fit.,

Until the law's changed, they can't do that.

[Michael P]

I would rather not have crime than let the police have unlimited powers to stop crime, but sadly that is not an achievable outcome. Along similar lines, Federalist #51 warned us about what you propose:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

[CindyF]

That's why "official" police organizations were created. They are in place to not only catch the criminal, but to also make sure they are not punished by an outraged mob and their rights are not violated.

I suspect soon we will return to the era of individual victims or "outraged" mobs deciding the guilt or innocence of an accused and then meting out the punishment they see fit.

[Brett Bellmore]

The only thing holding it off is that the jurisdictions determined not to punish actual criminals are equally determined to punish anyone who defends themselves against the actual criminals.

They're not indifferent, they're actually taking the criminals' side.

Makes me wonder if we aren't teetering, in some places, on the edge of the same failed narco-state that you see in Mexico, where the criminal cartels are actually in control in places, and the government just functioning as a sock puppet for them.

[Magister]

Some, but I would say less so: qualifications are steeper and more likely to be revoked; it doesn't offer clear reward to the sort of person who wants to be a police officer because abusing law enforcement authority is attractive; they have to do much of their jobs right in front of judges and other witnesses. There are also corrupt judges, and even corrupt justices on the Supreme Court.

[Kazinski]

"Some of them do things they know are illegal but think (rightly or wrongly) they can get away with."

Are you talking about governors or cops?

There doesn't seem to be a lot of difference between how the governor and this cop from CT view the law, who thought he could claim that legally carrying a gun was probable cause to detain and search the vehicle of a law abiding citizen.

Judge Atherton made quick work of Andrzejewski’s arguments, denying qualified immunity and allowing Soukaneh’s lawsuit to continue. “There is no indication that [Soukaneh] was even arguably unlawfully possessing a firearm,” she wrote. It was an “uncontested fact” that Soukaneh “presented his pistol permit to [Andrzejewski] before or at the time he disclosed that he was in possession of a pistol.”

As a result, the judge concluded that “no reasonable officer could believe probable cause was present.” And since arresting Soukaneh was done “without probable cause, the search of [his] vehicle cannot be justified as a lawful search incident to arrest.”

https://bearingarms.com/camedwards/2021/09/15/court-sides-with-gun-owner-over-cop-in-carry-case-n49959#google_vignette

[Noscitur a sociis]

So you think that this case was wrongly decided?

https://reason.com/volokh/2021/11/03/the-right-to-ask-government-officials-questions/

[TwelveInchPianist]

“When LEOs decline to enforce laws that they themselves deem “unconstitutional,” what are they protecting people from?”

Well, if they decline to violate a right that’s clearly established, they’re protecting themselves from Section 1983 liability.

[Bruce Hayden]

“Either way, it’s hard to see much justification for the LEO’s disregard for the chain of command.”

The key here is that neither the governor nor the AG are in the chain of command for LEOs in most states, except for state police. Instead, most LEOs ultimately report to a popularly elected lower level politician - in the west, either a county sheriff or a city mayor (through the police chief he selects).

[Rossami]

NM eliminated qualified immunity. Therefore your syllogism needs to be amended to “If the case is especially egregious, the arrested person might even have a civil claim against the state arresting officer.” The “harm to be avoided” therefore is considerably more than “minimal” from the LEO’s perspective.

Update: Apparently the Reason edit squirrels no longer tolerate HTML underline code.

[Ben_]

Any law enforcement officer would be dumb to arrest anyone based on this. Law enforcement officers rely on qualified immunity.

Is it "clearly established" that you can’t enforce an obviously unconstitutional order to violate a civil right? Likely yes, but you never know for sure.

Enforcing this therefore becomes a big risk to individual officers. For no benefit to anyone.

[Flight-ER-Doc]

Any member of the military has the obligation (not a right) to disobey an illegal order.

And if they live long enough, they may get a court-martial to determine if they were correct.

[Absaroka]

And if they *don't* disobey an illegal order ... court martial!

[DRM]

Under the New Mexico Civil Rights Act of 2021, law enforcement officers and other state officials are personally liable, with no qualified immunity, if they violate the rights guaranteed in the New Mexico State Constitution.

And as Mr. Volokh pointed out above, the New Mexico State Constitution has a direct enumeration of a citizen's right to "keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes".

So, under a state law signed by this governor, any member of local law enforcement who is stupid enough to try to enforce the governor's order is asking to be sued into penury.

[Social Justice is neither]

Wouldn't that also make her personally liable for something so completely over the top out of bounds?

[Absaroka]

Legalities aside, think what this is saying: the law abiding are forbidden guns because the violent crime rate is so high.

[Mr. Bumble]

This has been the "gun violence control" argument all along.

[Dr. Ed 2]

Respectfully EV, I think you missed the most important aspect of this — this is a HEALTH REGULATION and not a state law.

In other words, this is the logical extension of the fascist powers that the Governors had during the Wuhan Flu Hysteria. And this really isn’t even about guns — an anti-gay governor could cite legitimate health statistics and ban homosexuality as a public health concern.

A governor could ban Kosher food because salt isn’t good for you.

Where would this end?!? Mandatory church attendance?

[Rev. Arthur L. Kirkland]

Virus-flouting, boorish, science-disdaining, antisocial conservatives may be my favorite culture war casualties.

After the insurrectionists and right-wing bigots, of course.

[MaddogEngineer]

Has it occurred to you (I'm sure it hasn't) that the NM governor is guilty of sedition and insurrection against the state and federal constitution? She wants to use the power of law enforcement to do something that violates the law.

She's no different here than Trump insisting Pence could reject electoral votes.

[Guardian253]

Even though the governor implicated suspension of not only the 2nd Amendment, but also the 1st Amendment, I doubt "libertarians" at Reason will fight back. But, they'll yell at the top of their lungs that Trump is the most dangerous person to democracy and the constitution. LOL. The "libertarians" at Reason are nothing more than leftists who call themselves libertarians. They were deadly silent during the pandemic when rights were stripped. Now, democrats, emboldened by the silence and lack of opposition by lackeys, like some "libertarians", are using the same rationalization to continue to violate individual rights.

[David Nieporent]

They were deadly silent during the pandemic when rights were stripped

"Hi; I'm Guardian253. I've never read Reason, but I feel qualified to talk about what their writers will say in response to this."

[Page Turner]

Thought experiment: Let's imagine that Gov Grisham looks into the perpetrators of gun crimes finding that one race of males 18-49 is responsible for 10x the number of violent crimes than any other race not only using Albuquerque police data but New Mexico State Police and FBI national data as well.

Does she label them a "public health emergency" and confine them to their homes for 30 days?

[hoppy025]

I think there's a reasonable argument for preemptively locking up unmarried black and mestizo men.

[Variant]

So, the governor obviously knows this is illegal and is hoping courts can't react fast enough. As with Trump, isn't this "mens rea" sufficient for an indictment? She's knowingly violating the state and federal constitutions.

[Davy C]

Violation of rights under color of law is a federal crime, but I wouldn't hold my breath even if Biden didn't currently control the Justice Department.

[mydisplayname]

An attention-seeking Governor attempting to draw curious eyes away from Biden Bungles, definitely yes... but an interesting situation nonetheless.

Absent any express prohibition found in the Second Amendment, could a Governor issue an order in an effort to protect the citizens of her state from what she perceives to be a danger? Various judges in the Fifth Circuit say that she cannot protect her flock if the perceived threat is an invading human but that she can do so if the perceived threat is, for example, an invading germ or an unmasked human breath. Are appointed judges somehow better at recognizing dangers than are elected chief executives? Should life-appointed judges be trusted with emergency decisions or are judges better suited to interpreting written statute?

Jurisdictional chief executives need broad powers in order to respond to emergencies; fortunately, there are well-defined written limits to the broad powers granted to jurisdictional chief executives. When such well-defined written limits are applicable, Courts and/or Legislatures should intervene as necessary to preclude executive overreach: when such well-defined written limits do not exist, only the People, through the Legislature, are empowered to act. There's a good reason for that balance.

[Gozer the Gozarian]

"Jurisdictional chief executives need broad powers in order to respond to emergencies;"

No they don't! Fuck that. If the shit hits the fan, I expect them to stay the fuck in their lane while I assume some fucking broad powers. That's the way it should happen.

Unless of course you have a different definition of freedom.

[hoppy025]

I'm glad that Democrats do things like this periodically so that when they mock us saying "Nobody wants to take your guns" we can point to these examples.

Their long-term motives and goals are abundantly clear.

[Intelligent Mr Toad]

FORMER WRITING-TUTOR says: PLEASE do not use the tired, overused, no-longer-meaningful cliché-phrase “abundantly clear”! Phrases like that invite your reader to tune out and go to sleep. (Also avoid: “stark contrast”, “wealth of information”, “embarrassment of riches”, “[X] and [Y] alike”, “stand out like a sore thumb”, “all too [X]”, …)

I’m sorry to burst your bubble, and I don’t mean to get on a high horse or jump down your throat, but I can personally guarantee that indiscriminate overuse of clichés and stockroom-phrases will make your writing as dull as dishwater; it really gets my goat and makes me sick as a dog, and that’s where I draw the line, when the rubber meets the road. So I’m putting my foot down and talking like a Dutch uncle at this point in time: take the bull by the horns and think outside the box, when you write! Then your writing will pack a punch, and you’ll be cooking with gas and good to go.

Just my two cents.

[Rev. Arthur L. Kirkland]

Would you grant a wavier to the closest thing to a god on earth?

[hoppy025]

I rarely hear abundantly clear used at all, so I have no clue what you're talking about.

[SimonP]

Yes, an example where... checks... no one is taking anyone's guns! Perfectly apt!

[hoppy025]

Don't you have a dude to be plowing?

[Gozer the Gozarian]

Never underestimate the stupidity of people in power. Also, never underestimate the stupidity of the electorate that voted them into this position of power.

Yes, America, we are THAT stupid.

[Bruce Hayden]

Except that this is NM, and guns are part of the culture. This isn’t NY, or MA, which conveniently forgets that the Revolutionary War was started there over an attempt by their British overlords to disarm the citizenry.

[Intelligent Mr Toad]

I've been saying for some time:

A lot of people seem to think (or take for granted) that abortion is the issue over which states will rebel against the Supreme Court and refuse to obey its rulings. But I'm pretty sure the defiance-triggering issue will be guns, and the rebellion will come not from the right (gun-freaks) but from the left (supporters of greater restrictions on gun privileges). Specifically, from mothers who object to stray bullets and to reckless people being allowed to carry in public.

In other words, I won't be at all surprised if the Supreme Court issues a restraining order forbidding Governor Grisham to enforce her anti-carrying-guns-in-public order, and then she tells the Supreme Court to go get stuffed (and dismisses from law-enforcement anyone who, in New Mexico, attempts to enforce the Supreme Court's ruling), and then, other blue states start doing the same.

I think we're gonna see something like Mothers Against Drunk Driving, which crystallized when the political idea-pool was super-saturated with the now-apparently-obvious-to-everyone idea that drunk driving needed to be stopped. Of course there are differences: there wasn't any right to drive drunk in the constitutional jurisprudence of the time the way there is a right for reckless people to carry guns in today's constitutional jurisprudence. That might slow the precipitation/fallout, but it won't stop it. Rightly or wrongly, because of facts or just because of the way the media handle the information, parents and future-parents are getting ready to say "if the Constitution really requires us to put up with all these impulse-shootings, all these deaths from accidental stray gunfire, and all these shootings by police who are terrified of the people they're supposed to be protecting, then fuck the Constitution!"

I think a lot of folks, especially here, might be surprised by how angry the fallout may be, when it happens.

And I think that afterwards, historians will wonder why the gun-freaks didn't see it coming, didn't realize that they were pushing gun privileges beyond what the people were willing to tolerate.

I'm not gonna say here whether I think the outcome will be good or bad (or more good than bad or more bad than good); I'm just making a prediction.

Part of the rebellion will be because people increasingly see the courts as beholden to the moneyed interests, not to the people nor to the Constitution, and what interests are more moneyed than the gun-manufacturers and gun-merchants???

[Intelligent Mr Toad]

UPDATE: “When we’re afraid to be in crowds, to take our kids to school – when our very right to exist is threatened by the prospect of violence [(meaning, of course, violence involving, and worsened by, guns)] at every turn – something is wrong.” –New Mexico Governor Michelle Lujan Grisham

I’m willing to bet that a surprisingly large number (“surprisingly” to you overreaching pseudo-libertarian gun-freaks brilliantly brainy VC followers and opinion-makers, I mean) of viewers, listeners, and readers are going to respond affirmatively to this sentiment.

This is going to be one of history’s “we-should-have-done-something-about-this-years-ago” moments.

[Michael P]

Yes, for many years now, leftists should have been enforcing our existing laws to put criminals behind bars. But the extremists who coopted the Democrat Party insist on dumping criminals onto the streets instead. Now that the public is catching on, the extremists are busily trying to find someone else to blame.

[Michael Ejercito]

Let us not forget the words of Judge Wayne Andersen.

https://archive.md/mgil3

“The erosion of the rights of people on the other side of town will ultimately undermine the rights of each of us,” Andersen said in refusing to lift a ban he imposed last month.

[Z Crazy]

Outrageous!

This sack of shit took the side of the crook and the mugger and the carjacker and the gang member!

[Michael P]

Let us not forget that this declaration by Gov. Grisham is explicitly trying to suspend a legal right with no process, much like those unconstitutional searches.

[Intelligent Mr Toad]

It won't last. I mean, the indiscriminate "let-em-all-out" policy won't last.

[Jimmy the Dane]

Just remember all the finger wagging lectures we got from leftist politicians about the "rule of law" when they impeached Trump (twice) for made up crimes like talking on the telephone or speaking in front of a crowd.

[Scooter]

Pepperidge Farm remembers!

[hoppy025]

Rule of law for ye, but not for thee.

[Ed Grinberg]

Well, good luck with your uprising, I guess, but:
What’s with the “pseudo-libertarian”? If you object to “people being allowed to carry in public,” while I support their right to do so, how am I a “pseudo-libertarian”? Sorry, but I just don’t see it.

[Michael P]

Yes, leftists have always been willing to engage in insurrection and rebellion in order to violate others' civil rights. What's new?

[SimonP]

The rule of law is a bit more enduring, I think. Governors and state legislators may try to “disregard” Supreme Court rulings, but as long as judges are willing to follow higher court orders and issue contempt rulings when they’re not obeyed – and as long as law enforcement orders are willing to follow their instructions – any political “rebellion” against Supreme Court authority is unlikely to get anywhere.

The tipping point will really happen when lower-level judges – and state judges and justices – refuse to follow Supreme Court orders. I think that can happen, but it will take a long time to get there.

[Michael Ejercito]

Lower court judges were very faithful in following Brown v. Board of Education, 347 U.S. 483 91954). During the three decades after Brown many states engaged in rhetorical trickery to try to preserve segregation. Lower courts quickly saw through these attempts to get around Brown.

What do you suppose it would take for lower court judges to defy the Supreme Court?

[Brett Bellmore]

I think some of them are engaged in a degree of mute defiance, deliberately misconstruing applicable Supreme court precedents.

[CountmontyC]

Are you advocating that people and states ignore SCOTUS decisions? That sounds like insurrection.

[Brett Bellmore]

"A lot of people seem to think (or take for granted) that abortion is the issue over which states will rebel against the Supreme Court and refuse to obey its rulings."

I'm unclear about how a state could possibly refuse to obey a ruling to "Do what you want, it's none of our business what your abortion laws are."

Anyway, you're fantasizing that your own views of guns are more widely shared than is actually the case. Concealed carry reform spread across the nation democratically, not by judicial fiat. The few remaining anti-gun jurisdictions are outliers, hold-outs against a popular trend.

[Z Crazy]

People are sick and tired of all the muggings and gang shootings.

[Brett Bellmore]

Yeah, that's why they're buying guns to defend themselves. Because people like New Mexico's Governor won't do anything about muggings and gang shootings, they just want to disarm the victims.

[Intelligent Mr Toad]

And 99.9% of them couldn't use a gun to defend themselves even if their lives were at risk.

It's not as easy as Ah-nold and Sylvest-uh make it look onscreen.

[Brett Bellmore]

I hope you don't take your notion of real life from Hollywood.

It's bad enough taking it from the FBI, which systematically understates self defense.

[hoppy025]

So lock up the (mostly black and lateeno) muggers and gangbangers. But your Democrat Party friends won't. Why?

[Rev. Arthur L. Kirkland]

I doubt the culture war's winners will deal with gun nuts by defying the Supreme Court. I expect better Americans to expand and improve the Court, and to continue to let the modern American marketplace of ideas deal with the gun nuts, anti-abortion absolutists, religious kooks, racists, homophobes, xenophobes, and disaffected clingers.

[David Nieporent]

A lot of people seem to think (or take for granted) that abortion is the issue over which states will rebel against the Supreme Court and refuse to obey its rulings.

Huh? The Supreme Court's ruling on abortion is "States can do whatever they want." So how can states "refuse to obey" that?

[Bruce Hayden]

How does the governor of NM fire LEOs who refuse to comply with her unconstitutional orders? She isn’t their boss. They are mostly under lower level popularly elected political control - county sheriffs and city mayors.

[Bruce Hayden]

I think that you are smoking too much of the good stuff.

First and foremost, you would have to disarm 100 million citizens of nearing 1/2 billion guns, and do that with compliant LEOs instituting maybe 1-2% of the population. LEOs who live I the communities being disarmed, with neighbors being killed as a result. Good luck with that.

And who would they be doing that for? White suburban moms and single women living safely in gated, well policed, communities? They aren’t armed themselves, and expect others to do their dirty work. For what?

Besides, with the rise of Defunding the Police, and Soros funded DAs refusing to enforce the law, combined with the flood of illegal aliens flooding into this country (including thousands of cartel members), the lower classes, of all races and ethnicities, know that the criminals have guns, and aren’t going to give them up, and that the police won’t be there when they are threatened. The bulk of new gun sales are going to that segment of the population, who know that the only realistic protection that they can get, is their own gun.

[Randal]

It's obviously unconstitutional but then so is Bruen.

This is the sort of thing you get when both sides are moving away from the middle.

[Mr. Bumble]

"Middle" hahahahaha.

[Brett Bellmore]

It's taken a long, long while, but what you're looking at is just things returning to normal in the US in terms of gun laws. I think a lot of anti-gunners are quite in the dark about how free wheeling things were before the federal government astroturfed the gun control movement into existence after the Kennedy assassination.

[Sarcastr0]

Your comment is self-contradictory; if things haven't been normal for a long time, that means you've set your normal in the wrong place.

the federal government astroturfed the gun control movement into existence after the Kennedy assassination.
Good lord, man. No everything is a fucking conspiracy. People can not like guns all on their own.

[Brett Bellmore]

Look, I understand you're relatively young, so a few decades seems forever to you, but in historical terms the gun control movement is not that old, it never had time to really change Americans' views of guns. We never made our peace with losing those rights, and now we're reclaiming them.

"Good lord, man. No everything is a fucking conspiracy. People can not like guns all on their own."

Sure, they can, I'm not denying that. But "astroturf" doesn't mean a movement had NOBODY before the fake grass was laid down. It just means most of what you see is artificial.

BOTH of the leading anti-gun organizations created in '74 were founded with the help of a 'retired' CIA agent, Edwin Welles. The National Council to Control Handguns, AND it's 'competitor', the National Council to Ban Handguns. (The former played "good cop" to the latter's "bad cop", but they both had the same objectives.)

[Noscitur a sociis]

Brett Bellmore, as someone who really, really likes guns may I implore you:

Please, please stop helping.

[hoppy025]

You're a FUDD.

[hoppy025]

Yes. You could order nearly any gun you want to have it shipped directly to your house. The 1934 NFA unjustly and irrationally prohibited a bunch of things, but otherwise, there were little to no federal regulations.

[Randal]

What the fuck are you even talking about? Man, you have a conspiracy theory for every occasion!

The law struck down in Bruen had been in operation for well over a hundred years.

[Sarcastr0]

This one has the CIA!

[hoppy025]

Yes, but Brett clearly stated that there were very little federal regulations until 1968, and New York's law was a major outlier. While many to most states did prohibit concealed carry until the start of the revolution in the mid 1980s, very few regulated open carry at all.

[Brett Bellmore]

"The law struck down in Bruen had been in operation for well over a hundred years."

Yeah, it was a Jim Crow law, surviving the Civil rights revolution purely on the basis of selective enforcement and judicial hostility to the particular right it targeted.

[Randal]

Then it seems safe to say that what you call "judicial hostility" long predated the CIA anecdote that you felt the need to put forward.

[John F. Carr]

The case was filed on a weekend and the docket on courtlistener does not show any assignment to a judge. In the District of New Mexico, can you even get a TRO on a weekend in a new case? There must be somebody on call in case the sky is falling. Probably not for a routine Bill of Rights violation.

[BadLib]

This is, however, more than a "routine Bill of Rights violation" as a restriction on political signs over 15"x24" might be or a ban on political speeches in public parks after dark.

This order potentially will result in the deaths of law abiding individuals following the order who will now be defenseless against criminals who will not follow the order and will now know that their intended law abiding victims are likely less able to defend themselves.

This seems to be an issue that justifies an emergency expedited response by the courts in order to save lives.

A subsequent court order can't resuscitate anyone who may die as a result of delaying a TRO against NM's unconstitutional ban.

[Longtobefree]

Michelle Lujan Grisham and Patrick Allen are engaged in a conspiracy to violate the constitutional rights of the citizens of New Mexico.
I look forward to the DOJ filing charges first thing Monday morning.

[Z Crazy]

They just want to protect kids from the crook and the mugger and the carjacker and the gang member. How is that wrong?

[Morbo]

Because the crook and the mugger and the carjacker and the gang member don't give two fucks about gun control laws. They will continue to carry their guns regardless, and so long as progressive DA's keep cutting them loose right after arresting them, they aren't going anywhere. Crime will continue to surge. And this measure will do nothing but disarm their victims.

[Absaroka]

"They will continue to carry their guns regardless,"

The governor agrees with you that the crooks won't change their behavior, see 34:00.

[CountmontyC]

Because this doesn't target " the crook and the mugger and the carjacker and the gang member." It targets the law abiding. If you want to protect the kids from " the crook and the mugger and the carjacker and the gang member" you arrest and incarcerate " the crook and the mugger and the carjacker and the gang member" for really long periods of time.

[Longtobefree]

"Instead, New York argued that that the Second Amendment permits a state to condition handgun carrying in certain areas on a showing of a "need" for self-defense in those areas."

Funny thing; the "emergency" declaration itself documents exactly that need.

[Michael Ejercito]

Back in 1994, the Chicago Police Department, Chicago Housing Authority, and HUD conducted warrantless searches of the Robert Taylor homes to deal with school shootings and gang violence in the area.

“Mothers put kids in their bathtubs in fear of their lives,” said CHA chairman Vincent Lane.

This was challenged, and was ruled unconstitutional.

“The erosion of the rights of people on the other side of town will ultimately undermine the rights of each of us,” said Judge Wayne Andersen.

How is Grisham different from Lane? I fail to see the difference.

https://archive.md/mgil3

[Intelligent Mr Toad]

RE: "“Mothers put kids in their bathtubs in fear of their lives,” said CHA chairman Vincent Lane. This was challenged, and was ruled unconstitutional."

Sounds like a case of throwing out the baby with the bath-water.

[Z Crazy]

It was outrageous and a disgrace that the judge put the rights of the crook and the mugger and the carjacker and the gang member ahead of the lives of kids!

[Jimmy the Dane]

This is pure fascism. The Left is going to stop at nothing to use and abuse power to obtain more power. The list keeps on going on and on. BLM rioters get the pass while the demonkrat DOJ cracks down on peaceful protesters. The demonkrat DOJ can seem to find every single teacher and elderly person whose only crime on January 6th was being present but can't find who dropped a felony level amount of cocaine in the White House (which coincidentally happened when Hunter Biden was there....) They are using the court system to keep Trump off the ballot in a coordinated effort to do so. This is all fascism. But keep on keeping on snow flake clingers.

[Sarcastr0]

What is your definition of fascism?

[Jimmy the Dane]

See above.

[Sarcastr0]

How circular of you.

[David Welker]

I seriously hope you don't approve of this, Sarcastr0.

A fake emergency of "unknown duration" supposedly justifies curtailing a core constitutional right.

This governor is proceeding in bad faith. There is no way this law survives, but in the meantime the governor shows she has total contempt for basic constitutional rights.

[hobie]

Ain't you boys able to go a few days without the inanimate object?

[Absaroka]

Kinda sux to be the battered wife who still has to go to work everyday, except her vengeful ex now knows she's unarmed.

Or for that matter, anyone who doesn't want to get hurt in a mugging. The governor didn't say 'I'm ending CCW because crime has dropped to zero so there is no need for it', she said 'violent crime is off the charts ... so I'm going to disarm everyone who obeys the law'. Does that make sense to you?

[hobie]

I live in the toughest neighborhood in America. By myself. White. Scrawny. Unarmed. No one fucks with me. So what makes you so scared?

[Absaroka]

"I live in the toughest neighborhood in America."

Wow. Not just a bad neighborhood, but the single toughest neighborhood in America! I didn't even know there was a single rating system. What a badass! I bet you're 80 years old, too, and still kickin' ass!

And all those of lesser badassness, well sux to be them!

[Michael P]

That "a few days" comment exposes your bad faith for all to see.

[MaddogEngineer]

He probably doesn't approve. But because it's the wrong side blatantly violating the law, it's difficult to acknowledge.

Because that would destroy the "only the other guys are lawless" narrative they have going right now with MAGA.

Some of us are bothered by lawlessness anytime, anywhere.

[hobie]

What a screed. Did you just sit on a tack, Jimmy?

[Noscitur a sociis]

There is no such thing as a “felony level amount of cocaine” under either DC or federal law.

[David Nieporent]

Hey, stupid: it wasn't a "felony level amount of cocaine." That was one of the express reasons they only put limited effort into identifying the culprit.

[Michael P]

So is there such a thing as a "felony amount of cocaine" or not? https://www.lawteryx.com/blog/criminal-law/cocaine-laws-punishments/ (which may be wrong) indicates that 5 grams of "cocaine base" get someone up to five years of prison for a first offense, which is normally a felony sentence.

[David Nieporent]

Were there 5 grams of cocaine found at the White House? Not according to the Secret Service. It was less than a gram. Much less.

[Z Crazy]

Michelle Grisham didn't go far enough.

she should have declared martial law, like that Bruce willis movie Under Siege.

Army soldiers should have occupied the ghetto in Albaqurque. The word of the soldier would be law. all trials would be by military tribunals. Lethal force would be used against those who look like they're breaching the peace or resisting arrest. That's how you pacify the population.

It's war, and it's time people started acting like it!

[Jimmy the Dane]

The thing the media conveniently leaves out is that these are all gang related shootings. Gang bangers are notorious for not only illegally carrying guns, but having no idea on how to actually shoot them. Which is why you will see 100+ rounds expended without hitting anything but stray targets. But we can't put gang members in jail anymore because of made up demons like "racism", so you get more and more shootings.

[Z Crazy]

So they're subversive like the ACLU and the Black lives Matter and the NRA?

why can't we get rid of these subsersives?

[Jimmy the Dane]

If throwing our system of law and order under the bus for political gains is now the standard operating procedure, why not? I mean any and all use of power is legit so we can just do whatever as long as there is just the veneer of justification. Just close down the ACLU, throw the commies in jail along with BLM criminals that probably already belong there anyhow.

[Z Crazy]

I just want all of us to be safe.

Why should we sacrifice safety for the illusion of freedom?

[hobie]

Be careful, Jimmy. You just made an argument against Trump

[Mr. Bumble]

You meant NBA and not NRA, right?

[Z Crazy]

What did the NBA do to undermine the cops?

[Jimmy the Dane]

Not sure about the NBA but the NFL is chocked full of criminals....

[David Nieporent]

Which is why you will see 100+ rounds expended without hitting anything but stray targets.

You're thinking of the cops.

[Frank Drackman]

Cops shoot pretty efficiently where I'm from.

[NvEric]

The E.O. is the "real" story.
Executive Orders, all of them, far and wide, need to be challenged and questioned.

Dictatorship we slide into ever more. Thus, what point is LAW when a single EO rules ? and, moreover, when executives can ignore courts ?? and, no one else is there to "legally" challenge them ???

There is an answer, of course - inherent Right of self-determination as is what started this country.

[hobie]

I was in a salad bar in Houston a month ago and three men walked in and ate with pistols on their hips. The women in the place seem rattled.

I thought to myself, if you're this frightened of the wider world then maybe you should stay home instead of bringing your insecurities and weaponry into a Houston salad bar

[hoppy025]

Do those women get rattled when police officers walking with pistols on their hips? If no, they shouldn't get rattled when ordinary citizens do either. If you're that rattled by ordinary people walking around with guns, then perhaps you should stay home.

[hobie]

Police are here to protect us, Hoppy. And they do a good job of it. People know this. But when armed men walk into a salad bar or daycare or sewing class...well...either something is about to go down or these men are lunatics. Neither is good

[Michael Ejercito]

For two years, Democrats have told us that police are here to hunt down and gun down unarmed Black men.

Democrats also want stricter gun control laws...which would be enforced by these very same police.

[hoppy025]

WTF are you blathering on about? Seriously, every sentence in this post was complete bullshit.

[Jason Cavanaugh]

Since you like dichotomies, you're either an idiot, or a moron. Neither is good.

Fun!

[Bruce Hayden]

That’s just silly. I have seen open carry my entire life. Growing up in Denver, I remember well dressed gentleman on 16th Street wearing hats, boots, and a six gun, in expensive suits. We are talking TX here, which often means an expensive 1911 carried high and tight, in a fitted holster, again with boots and hat. Get over it. TX thinks that it is part of the west (as a Westerner, I think of them as Southerners).

And, yes, I do sometimes open carry - when the perceived risk is 4 legged (or zero legged, in the case of snakes). If there is only one of us, I will more likely concealed carry, when potentially facing 2 legged threats. In rural MT, open carry rarely gets more than a glance, unless you want to talk to that person about his choice in handguns. Not in, “WTF are you going open carrying”, but rather, “that’s a nice looking gun - what do you have there?” You don’t ask someone carrying a fancy 1911 how it shoots, because he wouldn’t be carrying it if it didn’t.

[Charles Nichols - CRTC]

The court requires that a motion for a TRO be filed along with a completed Information Sheet for a TRO (provided by the court).

I checked the docket but could not find the information sheet.

As of this writing, there are four lawsuits filed. One other seeks a TRO and, unlike this one, does have a completed information sheet filed. The hearing is today (Monday, September 11th).

They could have sought a TRO hearing on the same day they filed (Saturday) or the following day (Sunday) but instead crossed out “tomorrow” and wrote in “Monday.” There was nothing in the TRO form instructions that I could find where it said it is permissible to rewrite the form.

That other case is DONK v. Grisham (1:23-cv-00772).

[Charles Nichols - CRTC]

Another potential problem with the DONK TRO information sheet is that where the form asks if the opposing parties and their attorneys have been notified, the response is the plaintiffs sent the attorney general a FAX. They also left blank the answer to the question, "Are all parties represented by counsel at this time?"

The biggest problem with the TRO cover sheet is it does not seek to enjoin the enforcement of the Emergency Order. Instead, it seeks to enjoin the Emergency Order and Defendant Allen's Order.

As I understand it, laws and orders can't be enjoined by a Federal judge, only their enforcement can be enjoined.

[Brett Bellmore]

"The biggest problem with the TRO cover sheet is it does not seek to enjoin the enforcement of the Emergency Order. Instead, it seeks to enjoin the Emergency Order and Defendant Allen’s Order."

Since it's an order to enforce, I'm not seeing the distinction. And this EO is so far out there I doubt most courts are going to be looking for excuses to rule in favor of it.

[Charles Nichols - CRTC]

Sometime in the last session or two (maybe three), SCOTUS highlighted the distinction between seeking an injunction against a law as opposed to seeking an injunction against the enforcement of a law, the former being a fatal mistake. As for "most courts," the TRO was filed in the only Federal district it could be filed in. A blue state where the Senate has been rubberstamping leftwing judges for decades (nominated by both Republican and Democrat Presidents).