Federal Court Blocks N.M. Governor's 30-Day Ban on Gun Carrying in Albuquerque Area

In Wednesday's Nat'l Ass'n for Gun Rights [and companion cases] v. Grisham, Judge David Herrera Urias (D.N.M.) issued a temporary restraining order blocking the ban. The court's reasoning was simple: In Bruen, the Supreme Court held that the Second Amendment generally protects a right to carry arms in most public places, and the Governor's order violates that. The court added:

Although the State of New Mexico raises important safety concerns, at this stage it fails to demonstrate that the public safety concerns overcome the public's interest in preventing constitutional violations. At a fuller hearing on Plaintiffs' request for a preliminary injunction, the State of New Mexico may present more detailed information about how public safety strongly weighs against issuing a preliminary injunction because of the dangers and safety concerns associated with firearms. However, given Bruen's clarity that "the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home," the Court concludes that issuing a TRO to prevent the violation of a constitutional right would be in the public interest.

The preliminary injunction hearing is scheduled for Oct. 3, shortly before the order expires on its own terms on Oct. 6.

The court didn't discuss the New Mexico Constitution's right-to-bear-arms provision ("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."). It also didn't discuss whether the Governor had the authority to issue such an emergency declaration under state law, even apart from the right to bear arms. But this, I think, stems from the fact that the case was brought in federal court, and federal courts generally can't order state governors to follow state law (and the briefing in the cases has largely followed that principle).

Note that the Firearms Policy Coalition, for which I occasionally consult, was one of the parties in one of the cases decided by this opinion; but I was not involved in litigating the case.

Comments

[TPKeller]

"Although the State of New Mexico raises important safety concerns, at this stage it fails to demonstrate that the public safety concerns overcome the public's interest in preventing constitutional violations."

Wow, that sure smells a lot like the very same "interest balancing" that Bruen specifically took OFF the table!!

[branford]

Sounds more like the balancing of the equities requirement to issue a preliminary injunction.

Bruen goes more to the plaintiff's likelihood of success on the merits.

[Bruce Hayden]

Yes, except that under Bruen, there aren’t any equities on the other side. The NM Gov’s position is exactly what J Thomas called out as inapplicable and inappropriate in that decision. Her claim is illegitimate, after Bruen, as a basis for suspending the 2nd (and 14th) Amdt(s).

Yes, that means that it makes the reasoning a bit of a muddle, but the judge got to the correct result.

[Dilan Esper]

That's not right. You always balance equities in a temporary injunction proceeding, no matter how categorical the underlying law is, unless Congress passes a statute making an injunction mandatory.

[Bored Lawyer]

Only partially true. Yes, balancing the harms (not equities) is one of the four factors courts consider on a preliminary injunction.

But the underlying law may determine how much something is a "harm." For example, in IP cases, a defendant who is shown to be a pirate (e.g., he makes counterfeits in his basement) will not be heard to say he will lose his business if the court enjoins him. The business itself is illegitimate, so the "harm" in closing it down counts for little or nothing. Lorillard Tobacco Co. v. Amouri's Grand Foods, Inc., 453 F.3d 377, 382 (6th Cir. 2006) ("As Lorillard observes, the only 'harm' that the contemplated injunction would visit upon Grand Foods is hardly a legally cognizable one: It would be prohibited from selling counterfeit products, an illegal act to begin with.")

The Second Amendment's grant of the right to bear arms similarly renders not cognizable the risk of the citizenry being allowed to bear arms.

[Kazinski]

Nah, the judge is just being diplomatic in slapping down the governor at a very early stage. Remember he already is saying by issuing an injunction that she is unlikely to prevail. But he can’t rule on the merits until she has a chance to present her case in 3 weeks.

Obviously with the reception she's often the odds of her trying to get the injunction stayed are slim and none.

[Intelligent Mr Toad]

Just speculating here; I’m no lawyer or legal expert, but I don’t think the Governor is (or was) expecting to get her injunction sustained by the courts. You don’t get to be a governor of a state like New Mexico by living in fantasy-land. She must know the injunction will fail. Success this time wasn’t the point or the plan.

More likely it’s a first step (again, this is just my personal speculation based on my experience with new technology, which is, of course, different from legal maneuvering) in a series of experiments whose goal is to see how it fails in real life – to identify the obstacles to success, and see the obstacles in the real world, with actual experience rather than predictions based on theory. Scientists do this kind of thing all the time; it’s how new technologies are developed: you know your idea will fail, given the current state of the technology, but you try it anyway, in order to see how and why it fails, in real life, which often turns out to be by a failure-mechanism different from one you would have predicted based on the pure science. In this case, for instance, the experience shows that in order to get one step closer to the ultimate resolution, you have to make sure that your upper-level law-enforcement people are on board. That’s a potentially useful piece of real-world experience which is not what you would have predicted based on the usual failure-mechanism of injunctions which contradict the currently-prevailing Supreme-Court jurisprudence (which is, a judge smacks you down, not that your state law-enforcement people refuse to support you). Maybe something can be done about that (the judges) eventually, but for now the Governor’s experiment has demonstrated that you won’t even get up to the level of the courts, unless you first make sure that your state’s law-enforcement people are ready to support you, and (perhaps) convert, or get rid of, the ones who aren’t.

Probably very naive, since I’m not a lawyer and law is different from technology, but those are my two cents, for what they’re worth.

[gVOR08]

I think you're quite right that she expected this to fail in the courts. Doing so as part of a plan to advance gun control implies a degree of planning and coordination that doesn't seem evident. But doing something, even if it won't work, get's her political points. Ron DeSantis pushes stuff through all the time that hasn't got a prayer in the courts because it scores points with the MAGA. Not that I'm in favor of posturing, but it's common.

[Kazinski]

How much information is "No, Its unconstitutional." going to provide for her next attempt?

[Variant]

Why is there an assumption of a direct, bright line from policy to problem? Or even that problem exists?

It seems self-evident that preventing only law-abiding citizens from carrying guns will have zero impact on violent crime.

[John F. Carr]

A right to bear arms for self-defense deserves more protection in high crime areas, not less.

The scope of the order is based on crime rates and emergency room visits. It reminds me of laws written in states where the state constitution does not allow cities to be called out by name. You see laws that read like "This law will apply to any city with at least 50,100 population but not more than 50,200 population as of the 2020 census." The governor drafted an order intended to apply to one city, but did not name the city and left it to wannabe gunslingers to pull the 2021 FBI crime reports and mid-2023 Public Health Department reports to find out where the order was in effect.

[Abdul Abulbul Amir]

Most amazingly, the gov failed to show that permit holders were responsible for any of the bloodshed! Yikes!!

[Tom for equal rights]

John F. Carr 7 hours ago
Flag Comment Mute User
A right to bear arms for self-defense deserves more protection in high crime areas, not less.

Adding to your comment - the fear of immediate retribution is perhaps the single most factor in reducing crime.

[DaveM]

It's unclear to me how a case brought in federal court can restrain an order that was issued by a single state. Is the idea that such an order would be restrained regardless of the state, that is, if it were done in any state, it would still be restricted, and the fact that it just happens to be in a single state is irrelevant? And, does the fact that the order applies only to a subset of a state (in this case, a single county, I believe) have any impact on the federal-state dynamic?

[MatthewSlyfield]

State laws can be challenged in federal court on federal constitutional grounds. A state executive order would be no different.

[DaveM]

Thanks

[Area Man]

Federal courts have jurisdiction over federal questions under 28 U.S. Code § 1331. Whether a state actor is violating the federal constitution is a federal question.

[DaveM]

I see. Thank you.

[Michael Ejercito]

Let us remember 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.

[SomeGuy 2]

It's funny how our friends on the left never apply this logic to anything else. Temporarily suspending the Fourth Amendment would probably take a bit out of crime too. Could a governor do so? Of course not.

[Ed Grinberg]

The governor's "logic" is: once I declare something "an emergency," I can do whatever I want. "Our friends the left" do this all the time. Remember the COVID "emergency," and the suspension of freedom of worship, freedom of assembly, freedom of movement, and even freedom of speech!

[DaveM]

I wouldn't say this is only something the left does, but it is what the left is doing currently. One doesn't have to look too far in the past to see the right doing much the same. I'm thinking of things done after the 9/11 emergency that were really borderline, such as rendition, waterboarding, and remote assassinations, for example. To say nothing of things done to combat drugs or civil rights protests.

[Social Justice is neither]

Rendition, waterboarding and remote assassination were done to Americans? Sure there was that kid murderdroned for being with his dad but the person that signed that kill order wasn't on the Right.

[Michael Ejercito]

Vincent Lane, who was Chairman of the Chicago Housing Authority, did just that in 1993.

[Rev. Arthur L. Kirkland]

This governor seems to have chosen an unwise method of defeating the gun nuts.

But defeat them we will.

I hope the predictable mainstream backlash against gun nuttery does not overrun a right to possess a reasonable firearm in the home for self-defense. But I also hope the gun nuts get stomped to the point that states outlaw hunting on public lands and gun-related criminals (including sketchy sellers and buyers) are awarded substantial periods of incarceration.

Carry on, clingers . . . but only so far as better Americans permit.

[MeanGene]

Are you for real, Artie, or someone's spot-on parody of a certain kind of leftist?

[Scooter]

Just another Low IQ / Low EQ Troll.

[Frank Drackman]

Oh he's real alright, just doesn't go by his real name (if you were Jerry Sandusky, wouldn't you go by "Rev. Arthur. L. Kirtland"?????

[Scooter]

LOL, Meat.

Gonna be part of the stack kicking in the door?

I thought not.

Remember, your Betters are watching; and taking notes.

[ScottM1A]

Dude your side has been losing for forty years, I have no idea how you can possibly think you are better or even in the majority.

[Intelligent Mr Toad]

Dude, everyone loses, often for years, until they start winning. Once the tide turns, the progress can come slowly or quickly. And while I’m not gonna speak to the last 40 years, there’s no doubt that today, the gun-freaks are only winning by suppressing the will of the majority. Same with the abortion issue: the right-wing is winning because the Supreme Court is occupied by a majority of justices appointed by presidents who failed to win majorities of the voters. And the right-wing is only winning even these minority-supported judges by paying them huge bribes!

[Frank Drackman]

Pretty sure every POTUS in the last 100 years won a majority of the only voters who count, the Electoral kind.

[Kazinski]

I don't think you are right about guns at least, 27 states now have constitutional carry. That takes both houses of the state legislature and the governor, or a veto proof majority.

And even before Bruen 43 states were Shall Issue, all except Illinois, did it voluntarily by democratic majorities. Illinois passed a law under the gun so to speak of the 7th circuit that told them if the didn't pass shall issue permits, the court would just strike down the existing carry restrictions.

That doesn't seem like gun rights are being imposed from above, except of course in NY, CA, HI, MD, NJ, MA, and Illinois.

[Abdul Abulbul Amir]

Most if not virtually all "gun nuts" are completely on board with lengthy stays in the slammer for gun felons. It is the deincarceration, no bail, social justice whackos that favor putting felons back on the streets ASAP.

[Religion and Politics, my life]

It's not an emergency just because she says so. It IS a call for criminals to commit more crime. And it is a sign that this governor is Biden-style stupid. Biden was bottom 10 of his law class and boy does it show.

[Frank Drackman]

I thought he grad-jew-ma-cated with the highest temperature in his class???????

[DonP]

Gee, I wish I had known that "No oath is absolute" when I was drafted. I could have just explained that to my "Top Kick", that I'd really rather not go on patrol.

Because carrying The Pig and extra bandoleers in the jungle heat would be too inconvenient for me. Sensitive, gentle soul that he was, I'm sure he would have understood. Right after the team of Proctologists removed his size 13's from my hind quarters.

[Intelligent Mr Toad]

Question for Rosh Hashana:

Should the government of USA do anything either to encourage, or to discourage, gun manufacturers, to sell or from selling, state-of-the-art guns to Palestinians? If the only four possible answers are "encourage", "discourage", "neither (government should stay out of this question)", or "some other answer (specify)", which would you advocate for, and why?

[Kazinski]

State of the art guns?

They got AK47's, not a better gun made for irregular troops.

[Shamie Ervin iv]

"Ohhh, as Horace Rumpole grumbled, "the insolence of office!"

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