New Mexico Supreme Court hears arguments on governor's gun ban and executive orders

Jan. 8—The New Mexico Supreme Court heard arguments Monday in a high-profile case that not only challenges whether Gov. Michelle Lujan Grisham can prohibit people with legal gun ownership from carrying their weapons in public places but also questions how much power a governor should have in issuing emergency orders.

The court didn't immediately issue a ruling in the case, which challenges a public health order Lujan Grisham announced in the fall prohibiting firearms in parks and playgrounds in the Albuquerque area.

She also issued an executive order at the time declaring drug abuse an emergency.

In her initial order, Lujan Grisham suspended the right to carry open or concealed firearms in all public places in Albuquerque and Bernalillo County. The action came in response to alarming child deaths in Albuquerque, including the fatal shooting of an 11-year-old boy leaving a baseball stadium — a suspected case of misidentification — and the death of a 5-year-old girl in a drive-by shooting at home where she was sleeping.

Facing several federal lawsuits challenging the order, Lujan Grisham later amended it, limiting the ban to areas where children gather to play.

A federal judge overseeing the civil cases upheld the amended order in October. Still, gun rights advocates, including the National Rifle Association and Republican state lawmakers, filed a petition with the Supreme Court arguing state law allowing residents to carry firearms "cannot be blown up in an instant by executive fiat."

Attorney Jessica Hernandez, who represents the plaintiffs, told justices Monday the Legislature should have the sole power to declare such an order when a threat is not imminent, but constant.

The hourlong high court hearing comes as similar Second Amendment cases are making headlines around the nation, with gun control advocates and firearms enthusiasts clashing over legislation amid rising gun violence. A federal appeals court Saturday affirmed a judge's ruling that barred California from enforcing a ban on guns in most public places. The judge had found the law, set to take effect this week, was unconstitutional.

Arguments in Monday's hearing were far less focused on the Second Amendment than on the power of a New Mexico governor.

Hernandez told Supreme Court justices Lujan Grisham's "executive orders are so far outside and so contrary to the emergency statute that in their entirety they are invalid."

She said an emergency "needs to be something out of the ordinary. It can't be our constant state of being. It cannot be the public safety issues that we face each and every day and that the Legislature legislates on in every single session."

Holly Agajanian, who represents Lujan Grisham and state Health Secretary Patrick Allen in the case, countered the Legislature has long granted any governor the right to declare public health emergencies.

She said a declaration of emergency allows a governor to access emergency funding to address an issue — whether it's a need to test wastewater systems or repair roads.

Waiting for the state Legislature, which meets once a year, to deal with an emergency is "too little too late," Agajanian said.

The five justices grilled both attorneys as they tried to determine what limits are in place in the state — or should be — regarding a governor's power to issue emergency orders.

Chief Justice C. Shannon Bacon and Justice David K. Thomson asked Hernandez what standards should be applied.

Citing language in the state constitution that says emergencies should only be declared during unexpected disasters, Hernandez said there was "nothing sudden or unforeseen" about gun violence.

Bacon asked the attorneys whether it was up to her court to decide on the conflict, which seemed to be more of a tug-of-war between the Legislature and the Governor's Office.

"Who's the bad guy here? Is it the executive or the Legislature?" Bacon asked.

She also asked to what degree a governor could address an issue through an emergency order. For example, she said, if a governor declared driving while intoxicated an emergency, "could a governor suspend the ability of New Mexicans to drive in certain counties because of that emergency?"

There were no easy answers.

Justice Briana H. Zamora asked Agajanian where the boundaries lie when it comes to ensuring a governor doesn't call an emergency just to quickly access funding for a problem.

"That's a completely fair question," Agajanian responded. "I don't know where the line is."

Agajanian declined comment on Monday's hearing as she left the Supreme Court building in downtown Santa Fe.

This year's 30-day legislative session begins Jan. 16. Crime, gun violence and gun safety are likely to be on the forefront during the session, which will primarily focus on creating a state budget for fiscal year 2025.

Changes to the governor's emergency powers might also be considered.

Sen. Greg Baca, R-Belen, who serves as the Senate minority leader, said after the hearing Monday he plans to once again introduce legislation to limit the governor's powers — an initiative some Republicans and Democrats have tried unsuccessfully in the past.

"Whether our Legislature and executive have the will to look into these matters and to satisfy the questions presented by this court is another matter," said Baca, who attended the hearing.

Lujan Grisham already has called for legislation modeled after the federal Gas-Operated Semi-Automatic Firearms Exclusion Act — known as GOSAFE — that U.S. Sens. Martin Heinrich of New Mexico and Angus King of Maine introduced in Congress late in 2023. The federal legislation would regulate semi-automatic weapons to have permanently fixed magazines, limited to 10 rounds for rifles.

Rep. Andrea Romero, D-Santa Fe, said last week she plans to introduce a state bill similar to Heinrich's after she has it vetted by legal analysts.

The bill's potential effects on gun owners is unclear.

Illinois banned assault-style weapons a year ago but allowed people to keep the ones they already possessed if they registered them before Jan. 1, 2024.

A recent Chicago Sun-Times article said so far, only about 1% of the state's population had done so.