NRA, Gov. Grisham Make Their Cases Before New Mexico’s Top Court in Gun Ban Lawsuit

(from New Mexico Gov. Michelle Lujan Grisham speaks in Albuquerque, N.M., on Nov. 3, 2022. (Saul Loeb/AFP via Getty Images)

The New Mexico State Supreme Court heard oral arguments today over a controversial set of public health and executive orders issued on Sept. 7, 2023, by Gov. Michelle Lujan Grisham and Department of Health Secretary Patrick Allen to stem violent crimes committed with firearms.

In the executive order, Ms. Grisham wrote that the ban on public carry of firearms in Bernalillo County and other areas was necessary to protect children. It named gun violence in Albuquerque a public health emergency and banned carrying firearms in public for 30 days, drawing criticism from across the political spectrum.

Law enforcement officials, Second Amendment advocates, and even gun control activists have publicly said the order crossed the line.

“It’s unconstitutional, so there’s no way we can enforce that order,” Bernalillo County Sheriff John Allen said during a news conference. “This ban does nothing to curb gun violence.”

The National Rifle Association joined the Republican Party of New Mexico, the Libertarian Party of New Mexico, and several members of the New Mexico legislature, among others, in suing the governor. In a statement posted on its website, the NRA called the order a “power grab in violation of the state Constitution, which vests legislative authority in the legislature.”

“Guns are the leading cause of death among children and teens in New Mexico and have led to the deaths of a thirteen-year-old girl on July 28, a five-year-old girl on August 14, and an eleven-year-old boy on September 6,” the order reads. The outcry to that order led her to amend the order to only cover parks and playgrounds.

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Chief Justice C. Shannon Bacon said that while there may be legal issues to wrangle, the overarching question was simple: was this a problem for the legislature or the governor to address?

“Who’s the bad guy here?” she asked.

According to attorney Jessica Hernandez, who represents the plaintiffs, the fact that those orders have been extended four times and are still in effect, proves there is no “emergency.” Instead, it shows the governor has overstepped the authority granted by the legislature in state law.

“Because this is such a quintessentially legislative area, public safety, that when we get to the plain language of the statute ... it is very clear that this was never what the legislature intended as far as ... the delegation of emergency powers to the executive,” she told the justices.

“The constitution and the statutes are very clear that it is the legislature that has the police power.”

She said Ms. Grisham presented 13 years of data to justify her orders. She contended that 13 years indicates the problems are ongoing and not an emergency under the law. Which means it is an issue the legislature should address.

“If this court decides that this executive is allowed to take 13 years of data and subjectively decide that these public safety issues have reached what I deem to be a public health emergency, completely unilaterally ... that opens the door to every future executive to make those same kinds of judgments on the same kind of data on any number of public safety issues,” she said.

Legal Counsel Holly Agajanian, representing Ms. Grisham and Mr. Allen, said the governor was within her rights under the law. She said that since the legislature meets only part-time, the governor often has to make decisions based on her understanding of the law in consultation with policy experts. That is what she claimed Ms. Grisham did in this case. She pointed out that the legislature can address the question.

Arnold Gallegos, owner of ABQ Guns in Albuquerque, N.M., and a Jemez Springs Police Officer, is seen in his shop on Sept. 12, 2023.  (Allan Stein/The Epoch Times)

“They are free to amend the statute,” Ms. Agajanian said.

Justice David K. Thomson asked Ms. Hernandez how the court should decide what constitutes an “imminent threat.” He pointed out that they had been presented with more than a decade’s worth of data to back up the governor’s decision.

“Is it a fact-finding? Is there an administrative process? How can that work? Or do we just decide?” he asked.

Ms. Hernandez responded that the question before the court was a matter of law.

Separation of Powers Is the Issue

“I think that because of the separation of powers issues, this is not fact-finding. I think the court should weigh in on this,” she said.

Ms. Bacon asked Ms. Agajanian how a governor would know the limits of his or her authority. The lawyer said the governor is expected to subject each decision on emergency orders to a “rational basis” test.

According to the Cornell School of Law website, “To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.”

Ms. Bacon said the standard was a bit broad. She pointed out that drunk driving could be deemed a public health issue, and a governor could issue an order to stop all driving in the state.

“I could conceive of almost anything being a public health emergency,” she said.

In response to Ms. Agajanian’s suggestion that the court could set the limits on executive power, Justice Michael Vigil said that was not the court’s job.

“It’s not us doing anything,” he said. “It’s the language of the statute.”

Ms. Bacon said the court would render its decision “as time allows.”