5 Things to Know About New Mexico Governor’s Insanely Unconstitutional Gun Control Order

COMMENTARY Second Amendment

5 Things to Know About New Mexico Governor’s Insanely Unconstitutional Gun Control Order

Sep 25, 2023 6 min read
Amy Swearer

Senior Legal Fellow, Meese Center

Amy is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
New Mexico State Governor Michelle Lujan Grisham speaks at a rally hosted by the Democratic Party of New Mexico in Albuquerque, New Mexico, on November 3, 2022. SAUL LOEB / AFP / Getty Images

Key Takeaways

Grisham’s order effectively prohibits the carrying of firearms in public for self-defense within the city of Albuquerque for 30 days.

Several well-known gun control advocates have gone so far as to publicly denounce the order as unconstitutional.

As a purely statistical matter, concealed-carry permit holders are overwhelmingly not responsible for violent crime in New Mexico or any other state.

New Mexico Gov. Michelle Lujan Grisham last week accomplished a feat that few politicians have ever come close to managing: She issued a gun control order so outrageous that it received an overwhelming, bipartisan rebuke and left gun control activists speechless.

Grisham’s order effectively prohibits the carrying of firearms in public for self-defense within the city of Albuquerque for 30 days, regardless of whether the gun owner has a valid concealed-carry permit or is otherwise in compliance with state law.

>>>UPDATE: U.S. District Court Judge David Urias agreed Wednesday with plaintiffs in several lawsuits who said the order violates constitutional rights, and he granted a temporary restraining order to block the governor’s suspension of gun rights, the Associated Press reported. The restraining order will remain in place until an Oct. 3 court hearing.

While violations would result in civil penalties and don’t appear to constitute criminal violations, the fines imposed could be substantial—up to $5,000 per violation.

Here are five things to know about Grisham’s order:

1. The order is insanely unconstitutional. Grisham doesn’t seem to care.

Yes, you read that correctly. It’s not just unconstitutional. It’s insanely unconstitutional. No sane, sober, or prudent governor who has read the Constitution (or even spent five minutes reading the Cliff Notes version of Second Amendment case law) would issue such an order with any inkling of hope that it might pass constitutional muster.

As the Supreme Court made clear just over a year ago in New York State Rifle & Pistol Association v. Bruen, the Second Amendment protects the right of individuals to bear arms in public for self-defense.

It is not, as first New York officials and now Grisham claim, a privilege that can be unilaterally and arbitrarily suspended by the government.

Advocacy groups began filing lawsuits almost immediately after the order was issued, and it’s very likely that a court will ultimately vindicate the rights of peaceable concealed-carry permit holders in the state and find that the order violates their Second Amendment rights.

Grisham, a Democrat, doesn’t seem to care in the least that she’s fighting a losing battle.

Instead, she appeared to imply in her press conference that her oath to uphold the Constitution isn’t “intended to be absolute,” and that there is some sort of public health emergency exception to the Constitution when it stands in the way of her preferred gun control policies.

Rest assured, there isn’t.

2. No one except the governor wants to defend it.

Another sign of the order’s problematic nature is the complete lack of support it has received from major gun control organizations, many of whom have stayed silent on the matter when they would normally praise any public official’s attempts to “just do something.”

It’s not just that Gun Control Inc. doesn’t appear to be circling the proverbial wagons around the governor, either. Several well-known gun control advocates have gone so far as to publicly denounce the order as unconstitutional—an occurrence as rare as it is dripping with self-interest.

As of Tuesday, several fellow Democrats in the state Legislature had also called on Grisham to rescind the order, decrying it as both unconstitutional and unhelpful to “genuine reform.”

Grisham responded by implying that her “jurisdiction” over state gun laws supersedes Supreme Court decisions.

Don’t worry. It doesn’t.

3. No one except the governor wants to enforce it.

Maybe it’s principle, or maybe it’s just because New Mexico removed qualified-immunity protections that made it difficult to sue government actors for violating their civil rights, but thus far, state and local law enforcement officials have shown as little interest in enforcing the order as gun control advocates have shown in supporting it.

Albuquerque Police Chief Harold Medina expressed in a public statement that state agencies—and not his officers—were responsible for enforcing civil violations of the order. Meanwhile, in a tacit acknowledgement that the order targets the wrong people, he said the Albuquerque Police Department “will continue to focus on the enforcement of criminal laws and arresting criminals who are driving violent crime in the city.”

Bernalillo County Sheriff John Allen was more direct with his rebuke, saying in a press conference that his office won’t make any attempts to enforce the order, which he described as unconstitutional and a violation of his oath of office.

He told reporters that the “order will not do anything to curb gun violence other than punishing law-abiding citizens from their constitutional right of self-defense.”

And, adding insult to injury, Bernalillo County District Attorney Sam Bregman announced that even if local law enforcement officers were to arrest violators, his office would refuse to prosecute them.

“As an officer of the court,” he said, “I cannot and will not enforce something that is clearly unconstitutional.” Instead, he said his office would continue to “focus on criminals of any age that use guns in the commission of a crime.”

There was some hope that Grisham would back down on her insistence that state agencies enforce the order after more than 100 people openly carried firearms at an Albuquerque protest, clearly defying the order without any apparent attempt by police officers to issue citations.

Grisham, however, has since doubled down on her claims that the order will be enforced, telling the media that the protest was filmed and those caught on camera violating the order should expect to receive civil citations from the state police.  

She reminded Allen in particular of all the money given to the Sheriff’s Office and retorted that she doesn’t “need a lecture on constitutionality” from him.

It appears she absolutely does.

4. There’s no evidence of a “public health emergency.”

Perhaps if Albuquerque were in the midst of a truly unprecedented and uncontrollable crime wave, the idea of drastic gubernatorial action might be more palatable (if still equally unconstitutional). But public safety in Albuquerque has actually been trending in the right direction.

Compared with 2021 and 2022, homicide and robbery numbers are on track to be significantly lower this year. And while the city experienced a spate of high-profile homicides in recent weeks, homicide numbers in August and thus far in September are considerably lower than they were during the height of summer, which are typically the most violent months of the year in most cities.

(Curiously, the governor’s order relies on gun violence rates from June and July rather than on more current data.)

5. The order doesn’t meaningfully address a real problem.

Even tossing aside constitutional concerns and questions about whether Albuquerque is truly experiencing a crisis-level emergency, it makes little sense to target lawful public carry as a means to mitigate that crisis.

There’s no evidence that the crimes cited by the governor were perpetrated by lawful gun owners carrying in compliance with existing state laws.

Nor is such evidence likely to come to light. As a purely statistical matter, concealed-carry permit holders are overwhelmingly not responsible for violent crime in New Mexico or any other state. They are, in fact, incredibly law-abiding and peaceable as a group, which makes sense, given that people who invest a lot of time and money into carrying firearms in a lawful manner aren’t typically eager to commit actions that would see those rights stripped from them.

That’s particularly true in New Mexico, where only 0.002% of permit holders have their permits revoked for any reason, including conviction for some nonviolent misdemeanors.

Instead, the best available evidence indicates that most gun violence is carried out by individuals who are already prohibited from owning (much less publicly carrying) firearms and who are unlikely to be deterred from carrying firearms for nefarious purposes just because they might now receive an additional fine.

Meanwhile, if there truly is a public health emergency due to increasing numbers of violent victimizations, wouldn’t that mean the right to keep and bear arms in self-defense is even more important for peaceable citizens, who are now more likely to have to rely on those rights to protect themselves and others?

Grisham, meanwhile, needn’t worry herself with such concerns. Her taxpayer-funded security detail will always be there to protect her from violent criminals.

They, of course, are exempt from the public carry restrictions.

This piece originally appeared in The Daily Signal on September 13, 2023