We will assume that you are at least generally aware that Governor Grisham of New Mexico issued an order banning the carrying of guns in two New Mexico cities for thirty days (but if you need to catch up, this might be a good place to start). You can still carry a gun on your own property and to do things like go to the range, but if you are going to, say, a the grocery store, you have to leave your gun home, or risk being arrested.
Well, it shouldn’t surprise you that there are challenges to the order, or that the National Association for Gun Rights is behind one of them.
GOOD. https://t.co/ZCyQDRnipO
— Taxpayer1234 #🟦 (@Taxpayers1234) September 10, 2023
That Tweet links to an article at the Volokh Conspiracy, where they discuss how the National Association for Gun Rights filed suit in federal court for injunctive and declaratory relief, which means either an order merely saying that her order is unconstitutional, or an order actively prohibiting the state from enforcing it. Basically, they found a guy who wants to carry his gun in public and is not being allowed to. They also filed—probably simultaneously with the complaint opening the suit—for a Temporary Restraining Order. In federal court, that is an order that is filed without giving the other side a chance to respond and it is designed to be done quickly. Because you are not giving the other side a chance to respond, this is supposed to be done only sparingly. But we think that the Plaintiff has a decent chance to get a TRO because there aren’t likely to be many disputed facts, and the order is pretty flagrantly in violation of the Constitution. If we represented the Plaintiff, we would be very tempted to simply say "duh," as the legal argument. But their actual argument is slightly more involved, and we think these two paragraphs make the case very strongly:
In Bruen, the State of New York conceded a general right to public carry. … Instead, New York argued that that the Second Amendment permits a state to condition handgun carrying in certain areas on a showing of a ‘need’ for self-defense in those areas. Id. The Court held that to ‘support that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.’ … After an exhaustive analysis of the relevant historical tradition, the Court held that New York failed to demonstrate that its law was consistent with the Nation’s historical tradition of firearm regulation. …
The analysis regarding the first aspect of Plaintiffs’ Proposed Conduct (public carry) is extraordinarily simple. It involves a straightforward ‘a fortiori’ conclusion. If New York’s ‘proper-cause’ requirement for public carry failed Bruen’s second step, New Mexico’s flat prohibition of public carry under any circumstances necessarily fails Bruen’s second step as well. The Court can reach this conclusion without reviewing any of the relevant history, because as a matter of simple logic it is not possible for New Mexico to demonstrate that a flat prohibition on public carry is consistent with history and tradition when even a proper cause requirement for public carry was not.
(Citations omitted.) Basically, they are saying this. In New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Supreme Court struck down a requirement that you have to show a special need to defend yourself before you are allowed to carry a gun in public. This order doesn’t let you carry in public even if you have a special need. If New York’s law was unconstitutional, there’s no way the New Mexico executive order is, either.
To play devil’s advocate, we could see one argument that the state would offer: But this is temporary. ‘Thirty days to flatten the murder rate,’ or something. This shouldn’t work as an argument. The fact that they think there is too much violent crime isn’t a reason to disarm law-abiding citizens. If anything, we would be more likely to carry our gun if our governor declared a crime emergency.
But the ugly truth is it will depend very much on who gets assigned as a judge. If you get, say, an Obama or Biden appointee, you will probably at least get some foot dragging, if not a ruling upholding this unconstitutional nonsense. If you get a judge appointed by a Republican, you might get a Temporary Restraining Order. And even if the judge wouldn’t do that, the court might be able to issue a Preliminary Injunction and that could be done pretty quickly. Like it wouldn’t surprise us if the judge instead sets a hearing for Friday on the matter, deciding the issue no later than Saturday, allowing both sides to file briefs before the hearing. That’s less than ideal, but it wouldn’t surprise us if that happened.
We will note that this is not the only way to challenge the order. We wouldn’t be surprised if someone simply violates the order, openly carrying a gun when, but for this order, the act would be legal. That is a common approach, historically, to challenging unconstitutional conduct by the government. For instance, this is what happened in United States v. Eichman, 496 U.S. 310 (1990). In the previous year, in Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court held that a Texas flag burning law was unconstitutional. Congress then passed its own nationwide flag ban, and Eichman and others burned a flag to protest the law. Their plain purpose was to intentionally violate the law, so they would get arrested and then they would be able to challenge the law as a defense to the charge of unlawful flag burning. After all, the Supreme Court has said as far back as Marbury v. Madison, 5 U.S. 137 (1803), that ‘a law repugnant to the constitution is void.’ Or more expansively:
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
Norton v. Shelby County, 118 U.S. 425 (1886). Thus, the person could argue, after being charged, that the order is unconstitutional and, therefore, a nullity. That approach naturally comes with problems and risks. First, he or she is almost certainly going to be arrested and jailed at least temporarily, even if he or she eventually wins their constitutional argument. Second, if he or she loses that Constitutional argument, they might spend time in prison appealing and they might ultimately lose that appeal. Or, for that matter, the state might drop the case if they are concerned he or she might win on the constitutional argument. Obviously, the lawsuit seeking an injunction can’t be defeated that easily, and no one has to go to jail or prison. Still, we wouldn’t be surprised if we see people challenging the order by violating it.
Returning to the lawsuit, The Hill covers the case as well:
Gun rights group sues New Mexico over order banning guns in public in Albuquerque https://t.co/xTx6DKdeKD pic.twitter.com/RltXUJYlAe
— The Hill (@thehill) September 10, 2023
Some reactions:
Gov. Michelle Lujan Grisham referenced multiple recent shootings, which include an 11-year-old boy being killed, when announcing a public health emergency on Thursday and the order on Friday.
— Melissa (@Proudmimi12) September 10, 2023
As usual with people dying Republicans say, "But my guns!" https://t.co/vQSeTISj1N
Does she think that the problem is largely legal gun owners? Does she think disarming good people will stop bad people?
https://t.co/fpMCD6OZSO
— Ariel Hand (@AdajahHand) September 10, 2023
The National Association for Gun Rights, alongside Albuquerque resident Foster Haines, filed suit just one day after Grisham announced the public health order temporarily suspending concealed and open carry laws in the city.
Hope she Wins this one!
Pretty sure this District Court will do the right thing. Now, to get the recall petitions startedhttps://t.co/ZJHPh5be1J
— David Holman (@HolmanTravel) September 10, 2023
Gun rights group sues New Mexico over order banning guns in public in Albuquerque => ..way too much reliance on "historical tradition", which 'historically' has put women for instance second to men in almost everything.. History is not always right! https://t.co/lPb5lRZe7y
— Arthur Folden 🍁 (@artfudd) September 10, 2023
Yes, the feminist thing is to make it so that women have to rely purely on bodily strength to defend themselves. Where would we be without male feminists?
(Please note, we are being sarcastic.)
And here is the National Association for Gun Rights announcing their suit:
New Mexico Governor Michelle Grisham just declared a "gun violence public emergency" and BANNED the public carry of guns in Albuquerque and the surrounding county by executive order.
— National Association for Gun Rights (@NatlGunRights) September 9, 2023
Not on our watch! THAT IS WHY WE ARE SUING THE GOVERNOR OF NEW MEXICO!https://t.co/ekMRsXIu91 pic.twitter.com/kRDOt9bxZV
.@NatlGunRights, Mark W. Smith (@fourboxesdiner) highly recommends that you get more plaintiffs onboard with your lawsuit for the purpose of ensuring standing. https://t.co/ctcNfKYlUu
— KenWNichols (@KenWNichols1) September 10, 2023
Bluntly, you only need one person who lives in the relevant cities or just plans to go there. But, it never hurts to have a couple extra for backup. Like what if they found out that their current plaintiff was lying and, actually, he lives in Alaska and will never go to New Mexico? Furthermore, it might be a wise idea to get a very sympathetic plaintiff. For instance, maybe find a woman who has a restraining order on someone who doesn’t feel safe going out without her gun. But legally they have enough for standing.
SCOTUS needs to step in and assign Special Masters* to those jurisdictions that continue to intentionally violate the Constitution, with sanctions to be imposed where necessary.
— KenWNichols (@KenWNichols1) September 10, 2023
* In the law of the United States, a special master is generally a subordinate official appointed…
By definition, would she not have to declare driving a public emergency? Then revoke all CDL's and drivers' licenses?
— JMatt (@JMatt727967) September 10, 2023
DON’T GIVE HER IDEAS!!!
“The protection of the masses has in all times been the pretense of tyranny — the plea of monarchy, of aristocracy, of special privilege of every kind. The slave owners justified slavery as protecting the slaves.”
— I'm from the government and I'm here to help. (@Imfromthegover1) September 9, 2023
— Henry George
Injunction-junction, I like your function.
— The Booth Project (@defrockedSpock) September 10, 2023
Ugh, now that song is stuck in this author's mind. And since we have to suffer, so do you:
Liberty will NOT die on our watch. We just sued the NM Gov and her "Fauci" to stop their "public health gun ban." See y'all in court, tyrants. https://t.co/leA3MQMhA0
— Hannah Hill (@hannahhill_sc) September 9, 2023
Ms. Hill describes herself as ‘Executive director of @NFGR_Official, legal arm of @NatlGunRights.’
The rule should be that if you’re found to have violated civil rights as a government employee, you’re out and can never hold any elected office again. https://t.co/Xg0BOlHWyD
— Adam Lawson (@cigarsandlegs) September 9, 2023
We’d be more supportive of that proposal if the courts stopped making up rights. For instance, when the Supreme Court invented a right to abortion in Roe v. Wade, they invalidated the laws of every state in the union.
If you support the 2nd amendment, support NAGR . https://t.co/Ff3i6cJwru
— Southern Swamp Fox (@racermitsu) September 9, 2023
We can get behind that. Even if you support another pro-second-amendment organization, there’s nothing wrong with supporting more than one.
We have corrected one mention of Arizona to New Mexico. - sj
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