Assessing New Mexico’s Emergency Public-Carry Ban

  • Date:
  • September 27, 2023

On September 8, New Mexico Governor Michelle Lujan Grisham issued a Public Health Emergency Order that prohibits the carrying of firearms on public property in certain New Mexico counties.  Governor Grisham’s order has already been challenged in court and enjoined by a federal judge.  The order highlights the role of Western territorial restrictions under Bruen’s test and the interplay between the old two-part framework for Second Amendment cases and the text, history, and tradition method.

The New Mexico order begins by declaring gun violence and drug abuse “statewide public health emergencies.”  The public carry ban applies to counties that meet certain threshold gun violence metrics (based on the recent rate of violent crime and firearm-related emergency room visits).  While guns may be possessed and carried on private property, they must be transported to and from such locations with a trigger lock or other disabling device.  The order further bans the possession of a firearm “on state property, [and in] public schools, and public parks.”  The order directs state agencies to inspect licensed firearm dealers to ensure compliance with legal requirements and directs the department of health to create “a comprehensive report on gunshot victims presenting at hospitals in New Mexico.”  Those who violate the order are subject to “civil administrative penalties.”  The initial order would have lasted for 30 days and was renewable by the Governor if she determined that the relevant state of emergency still existed.  

The New Mexico order—which the Governor enacted in response to a series of high-profile shootings including some involving children—prompted quick reactions and backlash.  At least two lawsuits have been filed in New Mexico federal court challenging the order on Second Amendment grounds.  Some New Mexico law enforcement officers asserted that they will not enforce the order, with Bernalillo County[1] Sheriff John Allen stating that “[i]t’s unconstitutional, so there’s no way we can enforce” it.  The New Mexico attorney general registered his opposition to the ban and stated that he “do[es] not believe it passes constitutional muster.”  And nationwide, notable proponents of gun regulation spoke out against the order—including California Democratic representative Ted Lieu and March For Our Lives founder David Hogg.

On September 13, Judge David Urias of the District of New Mexico temporarily enjoined enforcement of the order’s public carry ban after holding a consolidated hearing on several legal challenges to the order (collectively captioned NAGR v. Grisham).  Judge Urias performed an initial assessment of how Bruen applies to the public carry ban, and he found that the plaintiffs had shown a likelihood of success on their Second Amendment claims.  The judge quoted the Court’s determination in Bruen that, “[a]part from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”  The judge further found that the plaintiffs would suffer irreparable harm absent an injunction because they will be denied a fundamental constitutional right, and that the balance of the equities favored entering the injunction.  Therefore, Judge Urias enjoined the public carry ban (but not other provisions of the order, such as the locational restrictions) pending a decision on the plaintiffs' motion for a preliminary injunction.  The judge set a preliminary injunction motion hearing for October 3.  On September 15, Governor Grisham amended the public carry ban to apply only to parks and playgrounds. 

There is little analysis of the state’s initial legal defense of the order in the NAGR v. Grisham opinion, so it remains to be seen whether and how New Mexico chooses to defend the remaining portions of the order in court given additional time.  Under Bruen, the closest historical analogues for a blanket public carry ban in a specific county are likely laws from Western territories during the Civil War and Reconstruction eras.  The New Mexico territory enacted a law immediately prior to the Civil War that broadly prohibited “any person [from] carry[ing] about his person, either concealed or otherwise, any deadly weapon of the class and description mentioned [including pistols . . . or any other deadly weapon” (emphasis added).  The law, which is notable for purporting to cover both concealed and open carry (as Governor Grisham’s order does) was raised in Bruen as a potential analogue for New York’s may-issue licensing law.  The Supreme Court, however, roundly rejected the idea that the New Mexico ban supported New York’s law:

This extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court. Its value in discerning the original meaning of the Second Amendment is insubstantial. Moreover, like many other stringent carry restrictions that were localized in the Western Territories, New Mexico’s prohibition ended when the Territory entered the Union as a State in 1911 and guaranteed in its State Constitution that “[t]he 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.”

The Bruen majority broadly discards territorial laws—including other late-19th-century territorial regulations that banned public carry entirely in densely populated areas—as “exceptional” and “improvisational.”  As I’ve written previously, the Court’s treatment of territorial regulations is puzzling because the federal Second Amendment always applied directly in the territories[2] and because the Court has appeared to credit territorial history in other areas of constitutional law.  I have an article-length analysis of these issues that was published in the Washington University Law Review earlier this week.

To be clear, I think the New Mexico order is patently unconstitutional under Bruen because the Court forcefully rejects the idea that late-19th-century territorial laws can ever constitute a historical tradition of regulation to support a modern gun law.  That appears to be Judge Urias’ conclusion as well in NAGR v. Grisham.  But I believe the legal challenges to New Mexico’s order illustrate some oddities with Bruen’s approach.  Rather than tackling the more difficult question of why a law such as New Mexico’s 1860 territorial ban is substantively not an analogue for a modern public carry ban, the Court chooses to dismiss all such laws based on factors unconnected to substance (the laws were “improvisations,” they covered only a small percentage of the nation’s population, they weren’t challenged in court, and some of them were amended or repealed after statehood).  Instead of setting clear guardrails for the analogical inquiry, this simply shows how malleable the Bruen test is.  Almost any historical law can be explained away by some socio-demographic rationale; it’s more difficult to explain why a law is different in terms of how and why the law burdened the right to armed self-defense.

I am not arguing that late-19th-century territorial laws and ordinances alone should support a modern emergency order like New Mexico’s, even under a different application of Bruen.  For one, the fact that these historical prohibitions were approved by territorial legislatures (whereas the New Mexico order was issued unilaterally by the Governor) may be enough to render them non-analogous.  Historical territorial public carry bans might be too late in time to shed light on the meaning of the Second Amendment (even though New Mexico’s law was in force in 1868, when the Fourteenth Amendment was ratified).  Or a court might perform a more detailed analysis into why such historical bans were passed and find that the reasons differed from those offered by Governor Grisham in important ways.  Any of these avenues, I think, would be more satisfying than the Court’s approach in Bruen.

What’s more, it’s not at all clear to me that the New Mexico order is constitutional under Heller and McDonald.  Illinois banned both concealed and open carry until 2012, when the Seventh Circuit struck down the state’s concealed carry ban.  In Moore v. Madigan, the circuit court held that

a blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.

The court found that Illinois failed to provide a compelling legislative rationale for the ban and that it was therefore unconstitutional under Heller.  Illinois initially considered appealing that decision to the Supreme Court but ultimately did not, instead enacting a shall-issue permitting law over then-Governor Pat Quinn’s veto. 

Thus, I don’t necessarily think Bruen changed anything with regard to the constitutionality of the New Mexico order.  A flat ban on public carry should have triggered strict scrutiny under the old two-part test.  Or, perhaps, a court might have found that there was no rational or substantial state interest in such a ban (as the Seventh Circuit held in Moore).  It may even be more straightforward for a court to strike down a broad public carry ban under a two-part analysis including means-end scrutiny, because the court would not need to grapple specifically with broad territorial bans from the mid-to-late-1800s. 

[1] Bernalillo County, the most populous county in the state which includes the city of Albuquerque, appears to be the primary target of the order (although, by its terms, the order is not limited to Bernalillo County and could apply to other counties if they reach the relevant gun violence thresholds).

[2] For this reason, it’s unclear why the Court attributes such significance to the enactment of New Mexico’s state constitutional protection of the right to keep and bear arms in 1911.  The territory was subject to the federal Second Amendment from its establishment in 1850 all the way up to 1911.