Six Things About The Carry Ban In N.M.
Democrat Gov. Lujan Grisham may get taken to school on this one.
By now, “everyone” knows that on Thursday, September 7, New Mexico’s Democrat governor, Michelle Lujan Grisham, announced “a statewide enforcement plan for gun violence.” On the same day, she signed an executive order declaring “a state of public emergency exists throughout the State due to gun violence,” directing the state’s Department of Health to work with her office “to provide an effective and coordinated response to this public health emergency,” and limiting the order to 30 days.
In turn, New Mexico’s Department of Health issued a Public Health Order prohibiting the carrying of firearms in public in jurisdictions with crime rates and firearm-related emergency department visits meeting a certain threshold, which currently applies to Albuquerque and the rest of Bernalillo County. Also, without any authority in federal or New Mexico law, it ordered “monthly inspections of licensed firearms dealers in the State to ensure compliance with all sales and storage laws.”
For the record, Grisham supported an “assault weapon” ban when she was in Congress, wants to impose a statewide ban in 2024, and supports expanded background checks, “red flag” laws, and any other gun restriction she is told to support by the anti-gun lobbying group(s) from which she receives her marching orders.
Here are six observations about the situation:
1. Prohibiting carrying is unconstitutional
In District of Columbia v. Heller (2008), the Supreme Court said “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” And, when the Second Amendment was adopted, carrying guns for protection was universally understood to be within the scope of the right to keep and bear arms.
That’s because the right to arms existed before the amendment was adopted. As the Supreme Court said in U.S. v. Cruikshank (1876), that right “is not granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” The Court cited Cruikshank in Heller, adding, “The very text of the Second Amendment implicitly recognizes the pre-existence of the right.”
Thus, in NYSRPA v. Bruen (2022), the Court ruled that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” It also ruled that restrictions on the right to arms that are outliers in America’s history are unconstitutional. “Public health emergency” gun bans are certainly outliers.
Perhaps one day the Court will rule as the Kentucky Supreme Court did in Bliss v. Commonwealth (1822).
That case came about because even though the state constitution said “the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned,” the legislature—like Gov. Grisham and most other Democrat politicians and voters today—didn’t care what the constitution said. It imposed a law prohibiting carrying a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when traveling on a journey. As fate would have it, Mr. Bliss got convicted of carrying a sword concealed in a cane.
The state tried to defend the law on the grounds that it did not prohibit carrying in every manner. But, the court said:
“To be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution. . . .’
“The right existed at the adoption of the constitution . . . . Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. (Emphasis added.)”
2. Grisham can’t suspend a right guaranteed by the U.S. Constitution
Grisham’s press secretary, Caroline Sweeney, said that Grisham’s order doesn’t run afoul of the U.S. Constitution, because it suspends only New Mexico’s firearm carry laws. In lockstep, the media say Grisham’s “suspends” the right to carry firearms.
Sweeney and the media should read Article VI of the U.S. Constitution, which states that the Constitution is “the supreme law of the land . . . any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”
3. Constitutionally-guaranteed rights ARE absolute
In the video within this article, Grisham says “no constitutional right, in my view, including my oath (of office) is intended to be absolute.”
Grisham’s statement that she doesn’t consider her oath of office absolute is beyond ridiculous and should disqualify her from public office and from sitting on a jury.
Just as ridiculous is her statement that constitutionally-guaranteed rights are not absolute.
The First, Second, Fourth, Sixth, and Seventh amendments refer to the rights and freedoms they guarantee with the definite article “the,” rather than the indefinite article “a.” (Again, because those rights and freedoms were understood to already exist.)
Furthermore, the amendments are absolute in prohibiting government interference with those rights and freedoms. The First Amendment says “Congress shall make no law.” The Second says “shall not be infringed.” The Fourth says “shall not be violated.” And the Sixth and Seventh say that people in criminal and civil proceedings “shall” be entitled to certain, specific protections.
Thus, once it is determined, as the Supreme Court said in Heller, what scopes those rights and freedoms “were understood to have when the people adopted them,” the amendments are absolute in protecting them.
4. Grisham’s choice of words
Also in the video mentioned above, Grisham said that she believes she can restrict rights whenever she wants, as long as she declares there’s a “public health emergency,” in this case “gun violence.”
A little background is in order.
In 1968, Texas’ biggest disgrace, the evil and corrupt Democrat president “Landslide” Lyndon B. Johnson and a Democrat Congress imposed the Gun Control Act. In 1974, civilian disarmament activists, thinking their time in history had arrived, formed two groups dedicated to getting handguns banned: the National Coalition to Ban Handguns and the National Council to Control Handguns.
The groups harped on the use of handguns in crimes, thinking it would convince Congress and the states to go along with a ban. But it didn’t, so anti-gun activists adopted a “Plan B.”
One part of the plan was that the groups changed their names to include the word “violence.” The “Coalition” became the Coalition to Stop Gun Violence. The “Council” eventually became the Brady Campaign to Stop Gun Violence. The New Right Watch became the Violence Policy Center. And some anti-Second Amendment lawyers organized themselves as the Legal Community Against Violence, then as the Law Center to Prevent Gun Violence.
Meanwhile, the political-agenda-pushing Centers for Disease Control gave federal tax dollars to anti-gun researchers in the public health community to produce studies invariably concluding that restrictions on firearms would reduce “gun violence.”
The new “gun violence” term served two purposes. First, it was consistent with the activist groups’ new names. Second and more importantly, it gave them a term under which to combine the separate numbers of firearm-related suicides, criminal homicides, self-defense homicides, and fatal accidents into a larger grand total number for propaganda purposes, to help them claim that “gun violence” deaths are an “epidemic,” as does nominal president Joe Biden.
5. Statistics don’t matter
Grisham justifies her executive order with a variety of crime statistics, as if Second Amendment rights can be attacked whenever the government claims there’s a reason to do so. (See this discussion of the strict- and intermediate-scrutiny levels of judicial review.)
However, in Heller, the Supreme Court rejected that idea. It said, “The very enumeration of the right (to keep and bear arms) takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Justice Samuel Alito also rejected the idea in his concurring opinion in Bruen.
6. The time factor
Second Amendment groups have filed a motion for a temporary restraining order and preliminary injunction against Grisham’s carry ban in the U.S. District Court for the District of New Mexico.
However, the ban is limited to 30 days, so it may expire before the court can intervene, at which point a legal challenge to the ban could become moot. That’s what happened in 2020, when the Supreme Court declined to intervene in New York State Rifle & Pistol Association v. New York City—which challenged an ordinance prohibiting people from transporting handguns within the city—because the city quickly amended the ordinance to remove most of its offending provisions.
New Mexico’s attorney general, a Democrat, has said he considers Grisham’s ban unconstitutional and won’t defend it in court. The Bernalillo County sheriff, Albuquerque’s mayor, and the city’s police chief say they won’t enforce the ban.
But New Mexicans are defying the ban by carrying in public places, and if one of them gets arrested and charged, he or she will have standing to challenge it in court, even if, in the meantime, the ban expires.
As the saying goes, “stay tuned.”