New Mexico Governor Michelle Lujan Grisham simply took the unprecedented step of banning open and hid carry in components of the state underneath the guise of a public health order. “However doesn’t that fly immediately within the face of the 2022 Supreme Court docket case New York State Rifle & Pistol Affiliation v. Bruen?” you may ask. Effectively sure, it very plainly does. Let’s unpack the place this order got here from and the place it’ll go.
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Disclaimer: I’m not licensed to observe regulation in New Mexico, and this text is for information, schooling and leisure functions solely. Don’t make any choices based mostly on what I write right here. If you’re personally affected by these occasions, you need to communicate to a reliable legal professional about your particular person circumstances and what dangers you face. This text doesn’t create an legal professional/consumer relationship between us.
What Occurred
This story broke on Friday, September eighth. Most information retailers reported that the Governor immediately issued the order, but it surely is a bit more bureaucratic than that. The Governor issued two govt orders, 2023-130 and 2023-132, concerning gun violence and drug abuse. As an apart, 2023-131 established the “Route 66 Centennial Coordination Group” which looks as if an odd factor to do in between these two different govt orders, however I digress.
As soon as the twin emergencies had been in place, New Mexico Division of Well being Secretary Patrick Allen issued the precise public health order. He signed the order on September eighth, 2023, and it lasts for 30 days like different public well being orders in that state. This order solely applies in areas the place particular crime price and gunshot damage price thresholds are met. The consensus is that solely the town of Albuquerque and Bernalillo County are topic to the order right now. Nonetheless, if these charges change, the order might apply in different areas as properly.
How Will This Be Enforced?
That may be a little foggy. This order is the authorized equal of “performing out of pocket,” as the children would say, and it does probably not make sense. Governor Lujan Grisham said within the press convention that native police wouldn’t be capable of implement the order. The Albuquerque Police Division additionally posted on X (Twitter) that they’d not be implementing the order. State regulation enforcement will probably be implementing the ban.
Whereas the state police could plan on implementing this order, it isn’t clear what penalties connect for violating it. The order doesn’t include any inside language about potential penalties for violations apart from “civil administrative fines.” Violation of some New Mexico public health orders can result in a $5,000 administrative fine, however it isn’t clear to me if that penalty quantity is relevant to this explicit order or if there may be another quantity. The Governor additionally said it was “probably a misdemeanor” to violate the order within the press convention, however I’ve not discovered something suggesting that in my transient analysis this morning. It is a good spot to remind you that you need to communicate with a lawyer if you’re in New Mexico and could also be topic to this order and you shouldn’t depend on my cursory analysis throughout breakfast.
What Is Banned?
The ban purports to forestall hid and open-carry inside the cities and counties that meet the violent crime and gun violence statistics described above. There isn’t a exception for folks with hid carry licenses. It additionally particularly applies to public property like parks.
Are There Exceptions?
Sure. The ban doesn’t apply to carrying a gun by yourself non-public property, or on non-public property with specific permission from the property proprietor. It additionally doesn’t apply in gun shops, gunsmithing amenities, or capturing ranges. How would the gun get to these locations with out being carried? The ban additionally permits for journey to these places if the firearm is locked in a container or is made inoperable with a lock. Historical past could not repeat but it surely usually rhymes, and that is similar to the scenario in D.C. which led to the Heller case.
One other attention-grabbing exception is its applicability to licensed safety guards. They aren’t topic to the ban. It additionally appears to exempt them so broadly that they are able to carry weapons whereas off responsibility, however that’s one other query {that a} New Mexico legal professional ought to take a look at.
What Occurs Subsequent
That is the portion the place I had speculated on what would occur within the ensuing lawsuits. However earlier than I might end this text, the National Association for Gun Rights dropped a court docket problem to the ban. They filed in federal district court docket looking for a preliminary and everlasting injunction, and looking for their attorneys’ charges and prices underneath 42 USC § 1988. That’s what I guessed would occur, however you’ll simply should belief me on that.
If they’re profitable, this lawsuit will enjoin New Mexico from implementing the ban through the lawsuit. That is named a preliminary injunction. If the case goes in NAGR’s favor, the court docket will enter a everlasting injunction prohibiting New Mexico from implementing this order at any level sooner or later. No choose has been assigned as of writing so we are able to’t speculate on what a specific choose could do. I’m assured that if the preliminary injunction shouldn’t be granted then NAGR will file an interlocutory enchantment to have the Court docket of Appeals deal with the injunction.
It’s value noting that the order incorporates a severability clause. That implies that if parts of the order are discovered unconstitutional, however others will not be, these different sections will stay in power. I might anticipate that some components may survive, such because the portion providing free gun locks to all gun homeowners, or the supply that the order should be made out there in Spanish.
I will probably be conserving an in depth eye on this case, keep tuned for updates.
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