GRISHAM FLEXES HER GUNS: HOW TO FIRE BACK AT STATE EXECUTIVE ACTION

By: Sam Black, Volume 108 Staff Member

On Friday, September 8th, New Mexico Governor Michelle Lujan Grisham issued an emergency order suspending the right to carry firearms in public across Albuquerque and the surrounding county for at least thirty days in response to a spate of gun violence.[1] The state has one of the highest rates of gun violence in the nation.[2] Under the order, citizens with carry permits will still be allowed to possess their weapons on private property such as gun ranges and gun stores if the firearm is transported in a locked box or a trigger lock or if another mechanism is used to render the gun incapable of being fired.[3] The decision was met with sharp criticism[4] and was quickly blocked by a federal judge.[5]

Governor Lujan Grisham issued the order using her delegated authority under the Emergency Public Health Response Act.[6] During the pandemic, Governor Lujan Grisham used these same powers to invoke certain public health restrictions.[7] Such a delegation of substantial discretion and authority to the executive branch (including state or local health boards) to respond to public health emergencies has long been a part of United States history.[8] The Supreme Court has “distinctly recognized the authority of a State to enact . . . ‘health laws of every description,’” so long as these laws face no Commerce Clause violations or otherwise impact the activity of other states.[9]

The Supreme Court recognizes that individual States may employ reasonable regulations to protect public health and safety.[10] The manner in which a governor might go about enacting these regulations is within the state’s discretion, as long as it does not contravene the Constitution of the United States.[11] In this order’s context, the bar to clear this constitutional wall is “incredibly high,”[12] but not impassable, as much of the dialogue surrounding this topic suggests.[13] While the Constitution securely provides certain liberties, it does not import an “absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.”[14] An emergency Act like Lujan Grisham’s must yield to fundamental rights like those enumerated under the Second Amendment if it ”has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion” of those rights.[15] By this standard, an argument interpreting this rule to bar Lujan Grisham’s Act could likely be successful—but it is not a foregone conclusion and must be proven in court.

Ultimately, the voices challenging the Governor’s Act are not without merit, as a strong executive hand can impose real dangers.[16] However, basing criticism of an executive’s actions on strictly constitutional grounds can be misleading, confusing, and ineffective.[17] If not because those arguments might not be entirely true, then perhaps because they neglect to advertise the more ground level impacts of an Executive Act’s threats on a constitutional liberty. Following the Supreme Court’s decision in Bruen, attention on firearm restrictions that disproportionately criminalize poor Americans of color, particularly how their selective enforcement contributes to mass incarceration, increased.[18] By solely reporting that the gun laws targeted in Bruen are “unconstitutional,” pundits, journalists, and lawmakers alike are failing to adequately communicate to and advocate for the American people.[19] Reporting a general constitutional violation to a mass audience is confusing and overly broad. Modern political lawyering recognizes the effectiveness of an integrated advocacy approach appending constitutional criticisms with community organizing, direct action, media strategies, and social justice education.[20] While many Americans are not deeply familiar with the text of the Constitution, we can all recognize the liberties it provides us in our daily lives, particularly when those liberties are stripped.[21] Sources that lead with the effects of a constitutional violation rather than with the existence of a constitutional violation itself much more effectively communicate with a broader audience.[22] The ACLU of New Mexico adopted this approach in a recent statement, focusing not on Lujan Grisham’s potential breach of the Constitution, but rather arguing that her “approach leads to the over policing of our communities, racial profiling, and increased misery in the lives of already marginalized people.”[23]

The constitutionality of Governor Michelle Lujan Grisham’s use of emergency powers has been validly called into question, but the real question remains largely unanswered: why does this matter? While pending litigation will debate whether the Governor’s order violates the Second Amendment, in the meantime, lawyers and other parties concerned over the Governor’s actions should focus on messaging and advocacy that highlights the concrete effects a constitutional infringement might have on individual Americans, especially the marginalized.

 

[1] N.M. DEP’T OF HEALTH, PUBLIC HEALTH EMERGENCY ORDER IMPOSING TEMPORARY FIREARM RESTRICTIONS, DRUG MONITORING AND OTHER PUBLIC SAFETY MEASURES (Sept. 8, 2023) [hereinafter Emergency Order].

[2] Firearm Mortality by State, Ctrs. For Disease Control & Prevention (2021), https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm [https://perma.cc/5CYN-A9XZ].

[3] Executive Order, supra note 1.

[4] See e.g., Memorandum Opinion and Order at 6, Fort v. Lujan Grisham, No. 1:2023cv00778 (D.N.M. Sept. 11, 2023) (alleging the order violates both the second and fourteenth amendments); Zoë Richards, New Mexico Governor’s Gun Ban Draws Bipartisan Backlash, NBC News (Sept. 11, 2023), https://www.nbcnews.com/politics/politics-news/new-mexico-governor-grishams-gun-ban-draws-bipartisan-backlash-rcna104500 [https://perma.cc/V32J-6ZGH] (highlighting the bipartisan nature of the critiques of Governor Lujan Grisham’s order) [hereinafter Backlash].

[5] Andrew Hay, US Judge Freezes New Mexico Governor’s Gun Ban, Reuters (Sept. 13, 2023), https://www.reuters.com/world/us/new-mexico-mayor-calls-legislative-debate-after-gun-ban-2023-09-13/ [https://perma.cc/FUV5-2RTJ].

[6] Executive Order, supra note 1; see N.M. Stat. Ann., § 12-10A-5 (1978) (granting the governor the Constitutional authority to declare a public health emergency upon the occurrence of a public health emergency).

[7] See Grisham v. Romero, 483 P.3d 545 (N.M. 2021) (finding that the Governor and Secretary were empowered under the Public Health Emergency Response Act and the Public Health Act to issue business restrictions such as the indoor dining ban at issue).

[8] Id. at 557; see, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (holding that the Massachusetts legislature could allow health boards the power to require residents of a city to receive vaccinations as deemed necessary for public health and safety).

[9] Jacobson v. Massachusetts, 197 U.S. 11, 24–25 (1905).

[10] See id. at 25.

[11] See id. (citing to holdings in Gibbons v. Ogden, 9 Wheat. 1, 203 (1824); Railroad Company v. Husen, 95 U.S. 465, 470 (1877); Beer Company v. Massachusetts, 97 U.S. 25 (1877); New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 661 (1885); Lawton v. Steele, 152 U.S. 133 (1894)).

[12] See Nicholas Lanum, New Mexico Governor’s Gun Order is ‘Blatantly Unconstitutional,’ Leaves Abuse Victims Vulnerable: Experts, Fox News (Sept. 18, 2023), https://www.foxnews.com/media/new-mexico-governors-gun-order-unconstitutional-abuse-victims-vulnerable-experts [https://perma.cc/YFT2-KU9C] (quoting Georgia College and State University Assistant Professor of Business Law Nicholas Creel).

[13] Backlash, supra note 4.

[14] Jacobson, 197 U.S. at 26.

[15] Id. at 35.

[16] See e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (holding that the President seizing private steel mills to halt a looming strike was too great an exertion of Executive powers and thereby unconstitutional).

[17] See Americans Are Poorly Informed About Basic Constitutional Provisions, Annenberg Pub. Pol’y Ctr. At The Univ. Of Pa. (Sept. 12, 2017), https://tinyurl.com/4spepj9j [https://perma.cc/E5XN-79HA] (finding that many Americans are poorly informed about basic Constitutional provisions) [hereinafter Constitution Knowledge]; cf. Most Americans Don’t Know What’s in the Constitution: “A Crisis of Civic Education”, CBS News (Jan. 19, 2021), https://www.cbsnews.com/news/constitution-americans-civics-test [https://perma.cc/H34Z-8VQ9] (“You need to understand how our government works in elections and so on. But you also need to understand why we set it up that way. And if you don’t understand both of those pieces, you are going to be in trouble.”) (quoting Raj Vinnakota, president of the Institute for Citizens & Scholars).

[18] See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (holding that New York’s public carry law, which required New York residents to demonstrate “proper cause” to obtain a concealed carry license, violates the Second Amendment); William Jacobs-Perez, Rethinking Gun Violence Prevention: Post-Bruen Policing and the Decriminalization of Minority Gun Ownership, 23 Univ. Md. L.J. Race, Religion, Gender & Class 104, 105, 131 (2023) (highlighting how mass incarceration and aggressive possession-based policing have “decimated” communities of color, and Black communities in particular); Sharone Mitchell, Jr., There’s No Second Amendment on the South Side of Chicago, The Nation (Nov. 12, 2021), https://www.thenation.com/article/politics/gun-control-supreme-court [https://perma.cc/LC2L-7RES] (“Black and brown men in New York, Chicago, and other localities around the country aren’t protected like white gun owners: We’re arrested, prosecuted, and warehoused in prisons.”).

[19] Cf. Deborah N. Archer, Political Lawyering for the 21st Century, 96 Denv. L. Rev. 399, 410 (2019) (“[P]olitical lawyers use integrated advocacy strategies, including . . . public education, media, and social-science research, assessing the efficacy and impact of each tool in service to a long-term vision of equality and solidarity.”).

[20] See id.

[21] Constitution Knowledge, supra note 17.

[22] Id. at 412 (arguing that effective communication requires lawyers to complement their legal acumen with a deeper understanding of the complexity of the problems faced by impacted communities).

[23] ACLU Concerned Governor’s Public Health Order Could Lead to Over Policing, ACLU N.M. (Sept. 11, 2023), https://www.aclu-nm.org/en/press-releases/aclu-concerned-governors-public-health-order-could-lead-over-policing [https://perma.cc/7G79-A68N].