A Blatantly Unconstitutional Gun Edict Highlights the Hazards of Emergency Powers

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Opinion

When New Mexico Gov. Michelle Lujan Grisham issued “a public health emergency order” that purportedly suspended the right to bear arms in Albuquerque and surrounding Bernalillo County last week, her justification was seemingly straightforward. “I have emergency powers,” she told The New York Times. “Gun violence is an epidemic. Therefore, it’s an emergency.”

Grisham’s stunt was widely condemned as blatantly unconstitutional, even by some leading supporters of gun control.

But her legal rationale also underlined the perils posed by the sweeping emergency powers that legislators in many states have granted governors — a problem that was abundantly clear during the COVID-19 pandemic.

Grisham, a Democrat, laid the ground for her ban on public possession of operable firearms last Thursday, when she declared that gun violence in New Mexico “constitutes a statewide public health emergency of unknown duration” under the state’s Public Health Emergency Response Act. That law defines a “public health emergency” as “an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm.”

Grisham also invoked New Mexico’s All Hazard Emergency Management Act, saying gun violence “constitutes a man-made disaster causing or threatening widespread physical or economic harm that is beyond local control.” In her gun order, which she issued the next day, Grisham asserted that violent crime is also “a condition of public health importance,” which New Mexico’s Public Health Act defines as “an infection, a disease, a syndrome, a symptom, an injury or other threat that is identifiable on an individual or community level and can reasonably be expected to lead to adverse health effects in the community.”

Those labels were meant to trigger the “emergency powers” that Grisham is claiming. The All Hazard Emergency Management Act, for example, says the governor may issue “necessary orders” to carry out its provisions, and it specifically authorizes the governor to “prohibit” the “possession of firearms or any other deadly weapon by a person in any place other than his place of residence or business, except for peace officers.”

Grisham relied heavily on these laws during the pandemic, when she issued many scientifically dubious edicts.

In November 2020, for example, she banned outdoor activities and required New Mexicans to wear masks whenever they left their homes, which she said they should not do “unless it’s an emergency or for an essential need like food and water.”

Unlike gun violence, COVID-19 was a literal epidemic. But Grisham thinks both threats empower her to act like a dictator for however long she deems necessary.

She repeatedly renewed her COVID-19 emergency orders, and she is threatening to do the same with her gun decree, which initially lasts for 30 days but can be renewed indefinitely.

It seems unlikely that the persistent, omnipresent threat of violent crime constitutes the sort of “emergency” that New Mexico legislators had in mind. But the more important point, repeatedly confirmed by state and federal courts, is that even properly defined emergencies do not nullify constitutional rights.

Two gun rights groups immediately challenged Grisham’s order in federal court, noting that it defies last year’s Supreme Court decision upholding the Second Amendment right to possess guns in public for self-defense. Albuquerque Police Chief Harold Medina and Bernalillo County Sheriff John Allen said they would not enforce the order, and two Republican state legislators said it was grounds for impeachment.

“I support gun safety laws,” Rep. Ted Lieu (D-Calif.) said, but Grisham’s order “violates the U.S. Constitution,” and “there is no such thing as a state public health emergency exception to the U.S. Constitution.” Gun control activist David Hogg concurred.

Grisham admitted that her order was unlikely to pass legal muster and, even if it did, would not affect the behavior of criminals. But if it encourages legislators to reconsider the wisdom of letting governors rule by decree based on open-ended emergencies that they themselves declare, it will have served a useful purpose.

About Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. During two decades in journalism, he has relentlessly skewered authoritarians of the left and the right, making the case for shrinking the realm of politics and expanding the realm of individual choice. Jacobs’ work appears here at AmmoLand News through a license with Creators Syndicate.

Jacob Sullum
Jacob Sullum
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Darkman

As I have said many times before on this site and others. Liberal/Progressive democrats, with their zealots in the AMA American Medical Association have long been working to the point of using mental health along with public health emergencies as their next tactic to attack the 2nd A. The use of emergency declarations by the current administration, as well as Governors all over the country to subvert Constitutional Rights has become the new Tyranny. Supposedly all in the name of our own good. Which has been a long game tactic of Liberal for decades. As long as the ideologies of… Read more »

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Beowulf

Something that doesn’t exist is a public health emergency?. She should be removed from office and put behind bars. You don’t put the brakes on any part of the Constitution.

5
Roland T. Gunner

Dried up, dusty, cobwebby old cootch.

4
TGP389

“Liberal Agends” – Make arrest for crimes unlikely by defunding the police. Make prosecution of criminals unlikely by electing prosecutors who won’t prosecute. Make sentencing to prison unlikely by electing or appointing (depending on level and jurisdiction) judges who are Charmin-soft on crime. When the resulting, inescapable c ime wave hits, outlaw firearms or order them away by fiat as “health hazards.” Then, in response to an unarmed populace enduring unending crime, switch to a police state.

3
G-man

none of these power hungry people deserve the right to do anything to subvert the rights of the people they are supposed to represent . These public servants shouldn’t have any emergency powers cause they can’t be trusted with any kind of power of that magnitude ,they always abuse it ,look at covid ,it tells the whole story. She should be removed and put on trial for her crimes against the oath she took, probably had her fingers crossed like the demented child she is. Good-bye and good riddance to another power hungry commie

2
musicman44mag

Her actions are exactly what governess Kate Brown tried to pull here in Oregoneistan. The new governess Tina Kotex is trying to make by decree that she will have the same powers but for now is having problems. Of course, none of this will happen until the new covid has taken over, the state capital will be closed for open session and will be limited to video only and the controllers of whomever gets to speak will make sure there is more in favor than opposed like before and again when opposers speak there will be technical difficulties like in… Read more »

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Boz

Burn tyranny DOWN to the ground!

1
HLB

A history of emergency powers would be in order here. None of them have the authority to block the national and state Constitutions.

Here is what happened to us in Mississippi in 2020:
https://www.clarionledger.com/story/news/2020/04/26/jackson-mayor-suspends-open-carry-laws-covid-19-measures-continue/3029740001/
“The mayor of Mississippi’s largest city is suspending the open carry of firearms in Jackson during the coronavirus pandemic.”

How many times has this sort of thing happened? Why does it keep happening?

HLB

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