Democratic Governor’s Ban on Carrying Guns in Public Is an Utter Disaster

Last week, New Mexico Gov. Michelle Lujan Grisham declared a public health emergency over gun violence in her state and imposed a 30-day ban on public carry in Albuquerque. Lujan Grisham’s diagnosis of the problem is surely correct; her proposed solution, however, is astoundingly misguided. The governor has leveraged an emergency health law to suspend a right protected by state statute, the state constitution, and Supreme Court precedent. Whether that right should exist is beside the point; it does exist in New Mexico today, pursuant not only to court decisions but also democratically enacted laws. By suspending it unilaterally, Lujan Grisham has claimed an alarming new power to revoke well-established individual rights by executive order. And she has done so in the most blundering way possible, ensuring a backlash that will only empower citizens, activists, and politicians who view all firearm restrictions as an existential threat to personal liberty.

Gun violence is, of course, a genuine public health crisis—one felt acutely in New Mexico, which has the third-highest firearm mortality rate of any state. Lujan Grisham took matters into her own hands following the recent killings of two children, and her desire for immediate action is surely well-intentioned. But her tactics are obviously illegal. New Mexico’s emergency health response law is broadly written, though plainly aimed at infectious diseases (as signified by a provision about “disease-reporting requirements”). It is questionable whether such a statute could allow the governor to transfer authority over firearm regulations from the Legislature to the department of health.

Still, let’s assume that the law does give Lujan Grisham expansive power to deem gun deaths a public health emergency and impose restrictions to address the crisis. Even then, nothing in the law gives the governor authority to effectively nullify a fundamental right. And in New Mexico, the right to public carry is fundamental. The state constitution safeguards citizens’ ability to bear arms for self-defense, including open carry. The Legislature has gone further, legalizing concealed carry for those who obtain a license.

There is no evidence that residents who legally carry firearms in public are contributing to the explosion in gun violence that moved Lujan Grisham to act. Yet they are the targets of her executive order, which applies to all of Bernalillo County, including Albuquerque. Licensed gun owners face civil penalties—including a $5,000 fine—for each violation of the order. Gun advocates have already filed four lawsuits against it, but they are not the only critics: The ACLU of New Mexico has also expressed grave misgivings with the ban, explaining that “this kind of approach leads to the over policing of our communities, racial profiling, and increased misery in the lives of already marginalized people.” The organization also noted that the governor’s approach “raises legitimate and pressing concerns about New Mexicans’ privacy.”

The federal law here is equally clear. In 2022, the Supreme Court established a right to “carry handguns publicly for their self-defense.” While the exact scope of the decision remains contested, Lujan Grisham’s sweeping order surely exceeds it. That’s why officeholders across the political spectrum have refused to enforce or defend it—including state Attorney General Raúl Torrez, Albuquerque Mayor Tim Keller, and Bernalillo County Sheriff John Allen. All three men are Democrats, and at least one Democratic state senator has expressed staunch opposition, as well.

There is, in fact, a very rational reason for law enforcement leaders like Allen to reject the ban: Officers who attempt to enforce it are at serious risk of civil liability. That’s because, two years ago, the New Mexico Legislature abolished qualified immunity, a doctrine that shields officers from suit under all but the most egregious circumstances. (The law was signed by Lujan Grisham.) That means a law enforcement officer who violates a person’s rights under the New Mexico Constitution may not claim immunity when they are sued; they cannot escape liability by claiming that they acted reasonably, or merely followed orders that they assumed to be lawful. Officers who enforce Lujan Grisham’s ban will therefore open themselves to civil liability in New Mexico court. And without the shield of qualified immunity, they could be on the hook for millions of dollars in damages.

Progressive resistance to the governor’s order has not tempered outrage and fury among Republicans who cite the ban as evidence that Democrats will use any pretext to grab guns from law-abiding citizens. The episode has provided great publicity to the National Rifle Association and other firearm advocates who feel vindicated by Lujan Grisham’s “shocking” attack on “the fundamental rights of law-abiding New Mexicans.” A Fox News report unsubtly spotlighted a photo of the governor campaigning alongside President Joe Biden, who is perceived as an avowed foe of the Second Amendment on the right. (The NRA has proclaimed that Biden “is coming for your guns.”)

It won’t stop there. Republicans will likely try to link Lujan Grisham’s order to the president and other Democratic politicians, smearing them by association—as if they, too, harbor a secret desire to seize “your guns.” To the GOP, the New Mexico episode looks like proof that their darkest, most paranoid fears about Democratic gun-grabbing really are just one election away from becoming reality. It also seems to vindicate conservative fears during the pandemic that governors could exploit public health laws as a pretense to suppress civil liberties through unilateral lawmaking.

Albuquerque’s sky-high homicide rate should absolutely move legislators to use every tool available in the fight against gun violence. States with weaker gun laws have more homicides, suicides, and mass shootings, while blue states with tougher restrictions have much lower death rates; New Mexico’s Democratic-controlled Legislature can look to these states for guidance on firearm regulations that do not violate anybody’s constitutional rights. To secure enduring legitimacy, these laws should be enacted by representatives of the people through the democratic process, not a lone governor who has grown impatient with the pace of reform. The nation’s gun violence problem is a tragedy, but it is also, fundamentally, a policy failure. A blatantly unconstitutional power grab will do nothing to stop it.