Her gun violence plan is probably unconstitutional. This governor is doing it anyway

CNN

Analysis by Zachary B. Wolf, CNN

(CNN) — Is it better to do nothing or to do something many people are positive will be struck down by courts?

New Mexico’s Democratic governor has hatched an unorthodox plan to cut down on gun violence for the next month, but even gun control advocates say it is unconstitutional.

Public health emergencies apply to certain areas

Declaring twin public health emergencies due to gun violence and drug abuse, the governor, Michelle Lujan Grisham, cited her state’s public health laws to impose a 30-day pause on the public carrying of concealed or openly carried firearms in areas with elevated gun violence. Police officers and security guards are exempt from the order.

The order would apply to Albuquerque and surrounding Bernalillo County – areas most affected by the state’s much higher-than-average gun violence problem. Read CNN’s report.

The Supreme Court set a new standard for gun laws

The problem, which even some gun control advocates are pointing out, is that Lujan Grisham’s order would seem to violate the US Supreme Court’s increasingly expansive view of the Second Amendment.

In fact, the recent movement in courts has stemmed from gun rights advocates citing a 2022 Supreme Court case to force a wholesale reevaluation of an array of existing state gun control laws.

New Mexico does have several laws that gun safety advocates push for, including background checks and a so-called red flag law. But it does not require waiting periods for gun purchases and anyone over the age of 19 can openly carry a gun in most public places.

‘Waste of time’

Bernalillo County Sheriff John Allen said on CNN Monday that he won’t enforce the order to pare back that right.

“I’m trying to look at solutions to address the gun violence directly and not be overshadowed by a court order that is not going to be enforceable – I’m telling you that right now. It’s going to waste our time,” Allen said.

Responding Tuesday on CNN, Lujan Grisham acknowledged that no citations have yet been issued for violating the order and she emphasized its temporary nature and its focus on carrying firearms in public spaces. If gun restrictions like background checks are constitutional, she argued, then her temporary ban should be too.

Even some gun control advocates have questioned her reasoning

“I support gun safety but there is no such thing as a state public health emergency exception to the US Constitution,” said David Hogg, a survivor of the Parkland school shooting and a co-founder of the gun control group March for Our Lives, in a post social media.

Multiple lawsuits have already been filed against the governor’s order.

During her appearance on “CNN This Morning,” Lujan Grisham told CNN’s Poppy Harlow the gun violence problem is large enough to challenge the assumptions and court decisions about the Second Amendment.

“While I see that it is getting more challenging to find strategic efforts to keep everyone safe, that doesn’t mean I shouldn’t do them,” Lujan Grisham said.

A series of tragedies

In declaring the public health emergency, Lujan Grisham cited some specific examples, including that New Mexico’s gun violence rate is much higher than the rest of the country.

She also mentioned:

An 11-year-old boy was shot and killed last Wednesday during an apparent road rage incident in Albuquerque.

A 13-year-old girl was killed on July 28 and police say the shooter was 14 years old.

A 5-year-old girl was killed while she slept in a living room on August 13.

Lujan-Grisham also cited mass shootings in Farmington and Red River, both in May, which killed six people.

“The evidence bears out, over and over again, fewer guns on the streets makes everyone safer,” she said. “And I’m focused on everyone’s constitutional rights, not just those the NRA says I should be focused on.”

Does the governor think this is constitutional?

Harlow asked Lujan Grisham Tuesday if she really believes the pause on publicly carrying guns is constitutional.

“Well, we’re going to see,” the governor said. “I wouldn’t do it if I didn’t think I had the right. I have the right.”

Focus on the wrong gun owners?

Stephen Gutowski is the founder of the website The Reload, a news publication focused on firearms reporting. He pointed out to CNN’s Jake Tapper on Monday that people with gun permits may not be the ones perpetrating much of the gun crime.

“The evidence points the other way generally,” Gutowski said, arguing that in states that release crime statistics, permit holders commit crimes at lower rates than the rest of the population.

“That makes sense,” he added. “They are the people who go through the background check and get the permit in the first place so I think that’s one of the reasons you see so much agreement that this is perhaps not the right path forward.”

‘Where are you?’

During her appearance on CNN, Lujan Grisham expressed frustration with law enforcement who said they would not enforce the restriction.

“My question to law enforcement is: Where are you? Where are you?” she said.

Albuquerque was among major cities that set a record for homicides in 2021, according to a CNN review at the time. It set another record in 2022.

Firearms featured in the vast majority (83%) of the 76 homicides in Albuquerque so far this year, according to statistics maintained by the city’s police department.

When asked by Harlow about what will come after the 30 days of this pause or if, as expected, courts step in, Lujan Grisham said it’s important to push the courts.

“If you’re not going to stand up for these kids and really test as hard as you can getting fewer guns and dealing with gun violence in a meaningful way, then you’re basically saying that you won’t be responsible to protect the citizens of the state,” she said.

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