Grisham’s Gun Ban Gets its Day in Court

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There was some consternation on the part of gun owners when U.S. District Judge David Urias scheduled and then unscheduled the first hearing in a lawsuit challenging New Mexico Gov. Michelle Lujan Grisham’s “emergency” ban on bearing arms in the city of Albuquerque and Bernalillo County, but it looks like the delay was based more on allowing all the plaintiffs in the now half-dozen lawsuits to have a seat at the table than an attempt on the part of the judge to delay a ruling as long as possible. On Tuesday afternoon, not long after the original hearing in Donk v. Grisham was supposed to take place, Urias issued a new order in that case and the other lawsuits that have been filed alerting the parties to a new hearing date: today at 1 p.m. Mountain Time.

With New Mexico Attorney General Raul Torrez refusing to defend the governor’s order, it’s still unclear who will be on hand to represent Grisham in federal court this afternoon, but whoever it is will be facing a bevy of plaintiffs attorneys with the same message for Urias: put Grisham’s order on ice because it’s violating the Second Amendment rights of their clients.  From the initial complaint in Donk:

If Defendants’ contempt for the Constitution was not clear on the face of the EO and PHO, Governor Lujan Grisham’s further comments provide all the confirmation this Court needs. At the press conference announcing the Governor’s suspension of the Second Amendment and her usurpation of queenlike powers, she stated, “if there’s an emergency, and I’ve declared an emergency for a temporary amount of time, I can invoke additional powers. No constitutional right, in my view, including my oath, is intended to be absolute.

As incredible proof of these executive actions’ pretextual nature, the Governor even admitted that “she doesn’t expect criminals to follow the order.” And yet the Governor also knows that “[r]esponsible gun owners are certainly not our problem — have never been our problem,” because she said so herself.

Of course, the Governor’s paradoxical statements beg the question — if law-abiding gun owners are not the problem, and criminals carrying guns will not obey the PHO, then what is the purpose of the Governor’s actions? The answer is evident. The EO and PHO serve no purpose other than to implement a radical political agenda to punish law-abiding gun owners for exercising their enumerated rights to carry arms in public for self-defense.

As attorneys Mark Caruso and Stephen Stamboulieh argue, the question before Urias is simple: does Grisham have the authority to completely negate the right to bear arms, even “temporarily”, under the guise of a public health emergency? The answer is just as simple as the question: no, she does not.

Simply put, there is absolutely no broad and enduring historical tradition of entirely banning the carrying of arms in public in an entire city or county. But one not need take Plaintiffs’ word for it.

There is no need for this Court to investigate whether there were any isolated Foundingera restrictions on firearms carry, much less whether any such post-Ratification era laws existed in sufficient duration, quantity, and breadth to establish a “historical tradition.” Bruen has already performed the analysis, which is complete, and binding on this Court as to the question presented here. As the Court in Bruen explained, “there is little evidence of an early American practice of regulating public carry by the general public.”

As for Ratification-era laws, Bruen recounted that, “[i]n the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons.” But far from supporting Defendants’ actions here, the Court explained that “these antebellum state-court decisions” in fact “evince a consensus view that States could not altogether prohibit the public carry of ‘arms’ protected by the Second Amendment.” Indeed, the Court concluded that “history reveals a consensus that States could not ban public carry altogether” as Defendants have done here.

Finally, Bruen explicitly warned against using its “sensitive places” doctrine to “effectively declare” entire jurisdictions of limits for firearms carry. Yet that is precisely what Defendants have done here, declaring an entire city and county almost entirely off-limits to the public carry of firearms.

As the Court succinctly summarized, “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”

That single statement is enough to resolve this case.

Defendants’ actions are definitively foreclosed not only by plain text of the Second Amendment and the four corners of the Bruen opinion, but also by any required historical analysis that the Court already has performed and decided against Defendants.

The only step that remains, then, is to enjoin and restrain Defendants’ patently unconstitutional actions and edicts.

Grisham maintains that the state’s emergency powers law gives her the authority to suspend the right to bear arms without question, but as the plaintiffs have pointed out, the Supreme Court has already taken the position that broad prohibitions on carrying or expansive “sensitive places” designations do not comport with the text, history, or tradition of the right to keep and bear arms. And even though it shouldn’t have any bearing on Urias’s decision, the rationale for Grisham’s emergency order simply doesn’t make sense. The governor admits that criminals aren’t going to stop carrying guns just because she says they can’t, which means the only folks who’ll be impacted are those lawful gun owners who want to carry a firearm on the streets of Albquerque to protect themselves from the high rates of violent crime that Grisham and her Democratic allies have been unable or unwilling to effectively combat.

Urias could issue a decision from the bench at the conclusion of today’s hearing, but it’s more likely that he’ll take a day or two to consider the arguments from both sides before handing down his ruling on the request for a restraining order. Either way, I’d say there’s a very good chance that by the end of the week Grisham’s carry ban will be put on hold and she’ll be complaining about the Supreme Court’s supposed radicalism standing in the way of her “common sense” violations of a fundamental right.

 

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