Challenge to N.M. Governor’s Ban on Public Gun Carry in Albuquerque and Surrounding County

From the motion for a temporary restraining order in Nat’l Ass’n for Gun Rights v. Grisham, filed yesterday in New Mexico federal court (paragraph numbering removed).

Governor Grisham issued Executive Order 2023-130 (the “Executive Order”) on September 7, 2023…. In the Executive Order Governor Grisham declared that a state of emergency exists in in New Mexico due to gun violence.

Based on the Executive Order, [N.M. Secretary of the Department of Health Patrick Allen issued “Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures” dated September 8, 2023 (the “PHE Order”)[:] …

[1] No person, other than a law enforcement officer or licensed security officer, shall possess a firearm … either openly or concealed, within cities or counties averaging 1,000 or more violent crimes per 100,000 residents per year since 2021 according to Federal Bureau of Investigation’s Uniform Crime Reporting Program AND more than 90 firearm-related emergency department visits per 100,000 residents from July 2022 to June 2023 according to the New Mexico Department of Public Health [which, according to news accounts, includes only Bernalillo County, where Albuquerque is located -EV], except:

[A] On private property owned or immediately controlled by the person;

[B.] On private property that is not open to the public with the express permission of the person who owns or immediately controls such property;

[C.] While on the premises of a licensed firearms dealer or gunsmith for the purpose of lawful transfer or repair of a firearm;

[D.] While engaged in the legal use of a firearm at a properly licensed firing range or sport shooting competition venue; or

[E.] While traveling to or from a location listed in Paragraphs (1) [sic] through (4) [sic] of this section; provided that the firearm is in a locked container or locked with a firearm safety device that renders the firearm inoperable, such as a trigger lock….

Bruen states that the appropriate test for applying the Second Amendment is: “[1] When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. [2] The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” … The Carry Prohibition flatly prohibits Plaintiffs from carrying handguns (or any other firearm) in public for self-defense. Therefore, Plaintiffs’ burden under step one of the Bruen analysis is easily met for the same reason it was met in Bruen….

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. 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….

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….

Plaintiffs [also] desire to go to private businesses open to the public while lawfully carrying a firearm for lawful purposes, including self-defense, without first obtaining the express affirmative permission of the person who owns the property. The Carry Prohibition prohibits that conduct. Last month, in Wolford v. Lopez (D. Haw. 2023), the court issued a TRO and preliminary injunction enjoining a practically identical Hawaii law. Hawaii argued that there was historical support for its prohibition on carriage on private property without consent. After examining the historical record submitted by the state, the court rejected its argument. It wrote:

… The State has not established that the portion of [the statute] that prohibits carrying firearms on private property held open to the public is consistent with this Nation’s historical tradition of gun regulation. Because the State has not met its burden, Plaintiffs are likely to succeed on the merits of their challenge to [the statute] to the extent that [the statute] prohibits carrying firearms on private property held open to the public.

The historical record has not changed since last month. Like Hawaii, New Mexico will not be able to show that the Carry Prohibition’s prohibition on lawfully carrying firearms into private businesses in Affected Areas open to the public without first obtaining the express affirmative permission of the person who owns the property is consistent with this Nation’s historical tradition of gun regulation. There is no such historical tradition. Therefore, the State is unable to carry its burden….

I intend to blog the other side’s argument when it becomes available. (You can read the full order, which is written to last until Oct. 6, here.) In the meantime, here’s the relevant part of the New Mexico Constitution’s right to bear arms provision (enacted in 1971):

No law shall abridge the right of the citizen to keep and bear arms for security and
defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

City of Las Vegas v. Moberg (1971) interpreted the 1912 constitutional right to bear arms  provision (“The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons”) as indeed invalidating laws that ban both open and concealed carry of guns. The argument in this federal case doesn’t rely on the state constitutional provision (likely because federal courts generally can’t issue injunctions against state governments violating state law), but I thought it worth noting, since the New Mexico Governor is of course obligated to comply with the state constitution.

Thanks to Louis K. Bonham for the pointer.

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