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When everything is an “emergency”

Gov. Grisham’s gun order fails both constitutional scrutiny and the test of common sense

New Mexico Gov. Michelle Lujan Grisham speaks at the Arcosa Wind Towers on Aug. 9 in Belen, N.M. Associated Press/Photo by Alex Brandon

When everything is an “emergency”
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During the COVID-19 pandemic, governors and mayors quickly embraced the emergency powers associated with a public health crisis to shut down schools and businesses, mandate masks, and otherwise rule without legislative interference.

At the time, conservatives warned that once COVID was over, we’d see executives intoxicated with the power and convenience declaring new public health emergencies or disasters over gun violence, climate change, and obesity. That’s particularly predictable when an emergency declaration can unlock additional taxpayer funds set aside for just such crisis circumstances.

Less than six months after New Mexico’s Department of Health ended its COVID-19 emergency declaration, Gov. Michelle Lujan Grisham is fulfilling that prophecy by declaring a “public health emergency” over gun violence and drug abuse—and then deploying those emergency powers to severely curtail Second Amendment rights in the “land of enchantment.”

The governors of New York and Illinois had previously declared gun violence an emergency or disaster in their states, and several federal legislators have sought a similar declaration from the U.S. Department of Health & Human Services. But none went as far as Grisham, whose order bars everyday citizens from carrying a firearm outside their home for the duration of the emergency period, which will cover, at minimum, the next 30 days. That portion of the order covers Bernalillo County, the most populous county in New Mexico, with more than 676,000 residents and home to Albuquerque, the state’s signature city.

This order in New Mexico is bad policy and bad law, but it’s not a surprise.

Grisham’s order will soon be subject to a legal challenge, and rightly so. The U.S. Supreme Court in D.C. v. Heller (2008) affirmed that the Second Amendment protects an individual right to own and carry a firearm. More directly relevant, in 2020, the Supreme Court reaffirmed this individual right when it struck down New York’s prohibitive regime regarding concealed carry permits.

In that decision, Justice Clarence Thomas wrote for the Court’s majority, “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. 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.’” Thomas noted that the nation’s historical tradition did perhaps carve out certain sensitive places, such as courthouses, but that an entire urban area wouldn’t clear that bar.

Grisham’s order will be an early test of how the court’s new framework for Second Amendment challenges applies—does the nation’s historic tradition allow heightened restrictions on carrying firearms during a disaster or emergency? Some have suggested the answer is yes, such as during the aftermath of Hurricane Katrina, although such a circumstance seems precisely when the need for personal protection would be at its zenith. Regardless, Grisham’s order starts on especially shaky ground when the “public health emergency” seems so entirely contrived—any court applying the scrutiny called for by the Supreme Court’s New York decision will see how far she is stretching the public health laws.

Not only does Grisham’s order fail constitutional scrutiny, but it also fails the test of common sense. We all deplore the senseless violence that sweeps across many of America’s largest cities, including Albuquerque. But the solution in such a circumstance cannot be to prevent law-abiding citizens with valid permits from defending themselves if they are accidentally caught up in a dangerous situation. As the bumper sticker says, “If owning a gun is criminal, then only criminals will have guns.” Law-abiding citizens will leave their guns at home out of respect for the rule of law, and because they don’t want to get arrested by the State Police; the drug dealers and gang members will have no such compunction.

This order in New Mexico is bad policy and bad law, but it’s not a surprise. We should expect more such actions from politicians looking to “send a signal” or “do something” about a high-profile issue in the news. Who needs a vote in the legislature when a governor can unilaterally direct funds or restrict citizens’ rights with the stroke of a pen? That attitude is an affront to our constitutional system, and courts should be quick to put a stop to it.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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