New Mexico governor’s gun ban due in court next week
Unified criticism reveals constitutional questions over gun reform
New Mexico Gov. Michelle Lujan Grisham wanted to get people talking about gun control, and she did. Her Sept. 8 ban on the public carry of firearms in two New Mexico counties lasted just a few days before a federal judge blocked it with an emergency order. Next week, the conversation will continue when U.S. District Judge David Urias hears arguments over whether the governor’s public gun ban should remain blocked while the lawsuit against it plays out.
Lujan Grisham, a Democrat, received overwhelming bipartisan pushback on the ban, which she presented as a public health order in response to the shooting deaths of children in the state. The governor declared a state of emergency after 11-year-old Froylan Villegas was killed by gunshots to his family’s car in Albuquerque in early September. In a statement announcing the ban, Lujan Grisham also referenced the killing of a 13-year-old girl in July and a 5-year-old girl in August.
The order, which draws on public emergency powers, bans the public carry of guns for 30 days in all cities and counties averaging above a certain number of crimes a year, which only includes Albuquerque and the surrounding county. The order packs in some other items too, including testing school water for the presence of fentanyl.
The National Association for Gun Rights filed a lawsuit on Sept. 9, the day after Grisham’s order took effect. Executive Director of Legal Affairs Hannah Hill said she’s never seen a governor draw on public health emergency powers to ban guns.
“You don’t get to suspend state law, federal law, and the Constitution just by fiat. … That’s some George the Third kind of stuff right there,” Hill said, referring to the British monarch whose tyranny sparked the American Revolution.
Urias issued the temporary restraining order on Sept. 13 against the ban until a hearing that’s coming up Tuesday. Generally, the court waits for days for a ruling on a temporary restraining order, but the judge took just a few minutes to think about it before delivering his ruling from the bench.
In response, Lujan Grisham amended her order two days later, limiting the ban only to public parks and playgrounds. She maintains that gun violence is a public emergency. There were over 2,090 shootings in New Mexico from 2014 to 2022. The number of shootings increased each year from 2016 to 2021, but decreased slightly last year.
The state’s Democratic attorney general, Raúl Torrez, wrote in a letter to Lujan Grisham that his office would not defend her in upcoming lawsuits and called her order unconstitutional. Torrez did convene a summit this week in Albuquerque to talk about solutions to gun violence with law enforcement leaders from throughout the state.
Criminal attorney Angela Arellanes has practiced in New Mexico for 40 years. She believes Grisham’s order is unconstitutional, but she sympathizes with the governor’s reasons. She said underage gun possession and carelessness is an ongoing problem in New Mexico.
“Something has to be done, even if it stirs up a lot of controversy,” Arellanes said.
Hill has high hopes for the lawsuit but has some concerns that the judge’s restraining order didn’t go far enough. She said the judge invited the governor to make a case that public health concerns should take precedence over Second Amendment rights.
“The fact that he left the door open at all concerns me, because to even consider that type of test is something that the Supreme Court has clearly said that courts cannot do,” Hill said.
In New York State Rifle & Pistol Association Inc. vs. Bruen last year, the Supreme Court said courts must rule based on the text of the Second Amendment and not a balancing test, or a cost-benefit analysis that weighs public health concerns against the right to bear arms.
Some New Mexico lawmakers are pushing for Lujan Grisham’s removal from office. Republican state Rep. John Block is trying to garner enough support for an extra legislative session to impeach the governor.
Block recalled Lujan Grisham’s track record with executive orders during the pandemic.
“So [during the pandemic] these governors like Grisham were able to just have blanket control of the state and use the public health order as cover for any kind of abuse of citizens,” he said. “And then during COVID over the Thanksgiving holiday back in 2020 we were being forced to stand in cold bread lines to get food and basic supplies because she would only let 75 people into a Walmart.”
For Block, the gun ban was the last straw. He said Lujan Grisham hasn’t addressed violence in meaningful, legal ways. “The governor has had five long years to fix the crime problem in New Mexico, but she has not put that front and center,” he said.
In New Mexico, children and mentally ill individuals cannot possess firearms. Safety classes are required with a gun purchase. Parents can be held criminally responsible for their children’s actions. Arellanes suggested a two-week or 30-day “cooling off period” for gun purchasers before they receive their weapon to prevent rash actions.
Hill said guns are not the problem. She argued that if society wants to address violence, it needs to stop attaching the word “gun” to violence and start considering the breakdown of family, soft-on-crime policing, and mental health.
“‘Something must be done’ is the excuse behind a whole long laundry list of historical human rights violations, violations and abuses,” she said.