New Mexico Governor Michelle Lujan Grisham just took the unprecedented step of banning open and concealed carry in parts of the state under the guise of a public health order. “But doesn’t that fly directly in the face of the 2022 Supreme Court case New York State Rifle & Pistol Association v. Bruen?” you might ask. Well yes, it very plainly does. Let’s unpack where this order came from and where it is going to go. 

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Disclaimer: I am not licensed to practice law in New Mexico, and this article is for news, education and entertainment purposes only. Do not make any decisions based on what I write here. If you are personally affected by these events, you should speak to a competent attorney about your individual circumstances and what risks you face. This article does not create an attorney/client relationship between us.

What Happened

This story broke on Friday, September 8th. Most news outlets reported that the Governor directly issued the order, but it is a little more bureaucratic than that. The Governor issued two executive orders, 2023-130 and 2023-132, regarding gun violence and drug abuse. As an aside, 2023-131 established the “Route 66 Centennial Coordination Group” which seems like an odd thing to do in between those two other executive orders, but I digress.

Once the dual emergencies were in place, New Mexico Department of Health Secretary Patrick Allen issued the actual public health order. He signed the order on September 8th, 2023, and it lasts for 30 days like other public health orders in that state. This order only applies in areas where specific crime rate and gunshot injury rate thresholds are met. The consensus is that only the city of Albuquerque and Bernalillo County are subject to the order at this time. However, if those rates change, the order could apply in other areas as well.

How Will This Be Enforced?

That is a little foggy. This order is the legal equivalent of “acting out of pocket,” as the kids would say, and it does not really make sense. Governor Lujan Grisham stated in the press conference that local police would not be able to enforce the order. The Albuquerque Police Department also posted on X (Twitter) that they would not be enforcing the order. State law enforcement will be enforcing the ban.

While the state police may plan on enforcing this order, it is not clear what penalties attach for violating it. The order does not contain any internal language about possible penalties for violations other than “civil administrative fines.” Violation of some New Mexico public health orders can result in a $5,000 administrative fine, but it is not clear to me if that penalty amount is applicable to this particular order or if there is some other number. The Governor also stated it was “likely a misdemeanor” to violate the order in the press conference, but I have not found anything suggesting that in my brief research this morning. This is a great place to remind you that you should speak with a lawyer if you are in New Mexico and may be subject to this order and you should not rely on my cursory research during breakfast. 

What Is Banned?

The ban purports to prevent concealed and open-carry within the cities and counties that meet the violent crime and gun violence statistics described above. There is no exception for people with concealed carry licenses. It also specifically applies to public property like parks.

Are There Exceptions?

Yes. The ban does not apply to carrying a gun on your own private property, or on private property with express permission from the property owner. It also does not apply in gun stores, gunsmithing facilities, or shooting ranges. How would the gun get to those places without being carried? The ban also allows for travel to those locations if the firearm is locked in a container or is made inoperable with a lock. History may not repeat but it often rhymes, and this is very similar to the situation in D.C. which led to the Heller case.

Another interesting exception is its applicability to licensed security guards. They are not subject to the ban. It also seems to exempt them so broadly that they may be able to carry guns while off duty, but that is another question that a New Mexico attorney should look at.

What Happens Next

This is the portion where I had speculated on what would happen in the ensuing lawsuits. But before I could finish this article, the National Association for Gun Rights dropped a court challenge to the ban. They filed in federal district court seeking a preliminary and permanent injunction, and seeking their attorneys’ fees and costs under 42 USC § 1988. That is what I guessed would happen, but you will just have to trust me on that.

If they are successful, this lawsuit will enjoin New Mexico from enforcing the ban during the lawsuit. That is called a preliminary injunction. If the case goes in NAGR’s favor, the court will enter a permanent injunction prohibiting New Mexico from enforcing this order at any point in the future. No judge has been assigned as of writing so we can’t speculate on what a particular judge may do. I am confident that if the preliminary injunction is not granted then NAGR will file an interlocutory appeal to have the Court of Appeals address the injunction.

It is worth noting that the order contains a severability clause. That means that if portions of the order are found unconstitutional, but others are not, those other sections will remain in force. I would expect that some parts might survive, such as the portion offering free gun locks to all gun owners, or the provision that the order must be made available in Spanish.

I will be keeping a close eye on this case, stay tuned for updates.