Last week, 11-year old Froylan Villegas was fatally shot outside a minor-league baseball stadium in Albuquerque, New Mexico. A month earlier, five-year-old Galilea Samaniego died after she was struck by a bullet while lying in bed in an Albuquerque trailer park. Two weeks before Samaniego’s death, 13-year-old Amber Archuleta was shot and killed in Questa, a small town about 150 miles north of Albuquerque.
The spate of violence spurred the Democratic governor of New Mexico, Michelle Lujan Grisham, to take drastic and controversial action. On Friday, the governor announced the immediate implementation of a 30-day ban on carrying firearms in public spaces or on state property in Albuquerque and the surrounding Bernalillo county, declaring gun violence to be a public health emergency.
“The time for standard measures has passed,” Lujan Grisham said on Friday. “And when New Mexicans are afraid to be in crowds, to take their kids to school, to leave a baseball game – when their very right to exist is threatened by the prospect of violence at every turn – something is very wrong.”
The ban marks a distinct departure from New Mexico’s existing gun laws, which allow residents to openly carry loaded firearms without a license. Residents who receive a state-issued license may also carry a concealed, loaded firearm.
Lujan Grisham’s allies defended her order as a dramatic but necessary measure to address gun violence, which has become the leading cause of death for children in the US. But Lujan Grisham faced immediate blowback from both Republicans and Democrats, who attacked the governor’s policy as an unconstitutional overreach of executive authority. The 30-day ban is now the target of multiple lawsuits, and a judge granted a temporary restraining order against the policy on Tuesday, blocking its enforcement.
Legal experts say the episode underscores the many hurdles in implementing gun regulations given the supreme court’s newly expanded definition of second amendment rights.
The legal trouble for Lujan Grisham’s order began immediately. Just one day after the governor announced the ban, the National Association for Gun Rights filed a lawsuit seeking to block its enforcement. The suit argued Lujan Grisham’s policy was “presumptively unconstitutional” because it ignored the rights of lawful gun owners. In addition to the 30-day ban on the open and concealed carry of firearms, the order imposed fines of up to $5,000 for violating the policy. Gun owners could only possess their weapons on private property, with exceptions for law enforcement officers and security guards.
“The Carry Prohibition infringes the rights of the people, including Plaintiffs, to keep and bear arms as protected by the Second Amendment,” the National Association for Gun Rights argued in its lawsuit.
In the past week, several more lawsuits have been filed objecting to Lujan Grisham’s order, and two Republican state legislators, Stefani Lord and John Block, have called for the governor’s impeachment over the policy.
“This is an abhorrent attempt to impose a radical, progressive agenda on an unwilling [populace],” Lord said. “Rather than addressing crime at its core, Governor Grisham is restricting the rights of law-abiding gun owners.”
Criticism of Lujan Grisham’s order has extended far beyond the governor’s Republican adversaries and gun rights activists. The Bernalillo county sheriff’s office, the Albuquerque police department and the Bernalillo county district attorney, Sam Bregman, a Democrat appointed by Grisham, all said they would not enforce the policy. New Mexico’s Democratic attorney general, Raúl Torrez, indicated he would not defend the order in court.
The heated debate over the order even stretched into the halls of Congress, as the Democratic congressman Ted Lieu of California weighed in with concerns over the policy’s constitutionality.
“I support gun safety laws,” Lieu wrote on X, formerly known as Twitter, on Saturday. “However, this order from the Governor of New Mexico violates the US Constitution. No state in the union can suspend the federal Constitution. There is no such thing as a state public health emergency exception to the US Constitution.”
Lujan Grisham sharply rejected Lieu’s criticism, going so far as to suggest a new line of work for the congressman. “Hey Ted, conceal and open carry are state laws that I have jurisdiction over,” Grisham said on Twitter. “If you’re really interested in helping curb gun violence, I’d welcome you to join our next police academy class.”
But the governor’s efforts to legally defend the order have been significantly complicated by the supreme court’s decision in New York State Rifle & Pistol Association v Bruen. The ruling, delivered last year by the court’s six conservative justices, struck down a New York law regulating the public carry of handguns and imposed a new test to determine the validity of firearm laws.
In its lawsuit, the National Association for Gun Rights quoted the new standard established by Bruen, which reads, “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.”
With the Bruen test in place, Grisham’s order was unlikely to withstand legal scrutiny, experts said.
[The Bruen ruling] does leave governors and legislators in a hard spot when they’re facing crises of gun violence
“Pre-Bruen, a law like this might be upheld, but the absurd new standard that Bruen established completely scrambled second amendment law,” said Ciara Malone, legal director for the gun safety group March for Our Lives. “It demolished the previous means-ends scrutiny standard, under which the government has an ability to pass narrowly tailored laws that protect both public interest and the constitutional right, and replaced it with a preposterous historical analogue standard that requires that judges act as judges of historical record and search for precedent at the time of the nation’s founding for gun safety laws.”
Gun safety advocates like Lujan Grisham can attempt to find historical examples of gun regulation to justify the policy, said Jacob Charles, a professor at Pepperdine University’s Caruso School of Law and a constitutional law scholar focusing on the second amendment. For example, in the late 19th century, western frontier towns like Tombstone, Arizona, required visitors to disarm upon arrival. But, as Charles acknowledged, such historical arguments have generally failed in the courts so far.
“As a practical matter, I think the Bruen test certainly does make it harder for the government to sustain regulations today, more than it did under the prior framework,” Charles said. “It does leave governors and legislators in a hard spot when they’re facing crises of gun violence.”
Despite the many challenges ahead, Malone emphasized that legislators in New Mexico and across the country need to take more aggressive action to combat gun violence.
“I can understand the urgency the governor feels behind making the order that she did,” Malone said. “We need bold leaders who will take aggressive action, no matter the cost – because gun violence is relentless, and it’s killing us.”
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