New Mexico Attorney General Says He Will Not Defend Governor’s Gun Ban in Court

A man openly carries a gun in a file photograph. Loren Elliott/Reuters

New Mexico Gov. Michelle Lujan Grisham’s “public health emergency” order to suspend the right to carry a firearm in and around the populous city of Albuquerque is facing yet another pushback, this time from the state’s top lawyer.

In a letter to the Democrat governor, New Mexico Attorney General Raúl Torrez said he will not be defending the state in lawsuits challenging the “highly problematic” order, which makes it illegal to carry a gun, either openly or concealed, in Albuquerque and surrounding areas in Bernalillo County, even for those who have valid permits.

The Sept. 8 order, which came a day after Ms. Grisham declared “gun violence” a statewide public health emergency, is set to last 30 days but can be renewed. It applies to “cities or counties averaging 1,000 or more violent crimes per 100,000 residents per year since 2021,” a criterion so far met only by Bernalillo County.

“Though I recognize my statutory obligation as New Mexico’s chief legal officer to defend state officials when they are sued in their official capacity, my duty to uphold and defend the constitutional rights of every citizen takes precedence,” Mr. Torrez wrote in the Sept. 12 letter.

According to Mr. Torrez, a Democrat and Albuquerque native, this flawed order is not going to actually help curb violent crimes in his home region. Neither does he find it constitutionally sound enough for him to defend.

“Simply put, I do not believe that the emergency order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster.”

Poor Legal Foundations

Specifically, the attorney general highlighted two serious problems with the order’s legal basis.

The first, Mr. Torrez said, is its reliance on a very liberal interpretation of the state’s public health emergency response law. The law authorizes the governor to use emergency executive power to protect the public from an “immense threat of exposure to an extremely dangerous condition ... including a threatening communicable disease.”

The governor’s order “distorted the law’s meaning beyond its intended purpose,” Mr. Torrez argued, apparently saying that violence involving guns may not be considered an infectious disease.

“Second, simply rebranding gun violence as a public health emergency will not satisfy the heightened judicial standard for justifying the blanket prohibition against any citizen, regardless of criminal conduct or intent, from carrying a firearm for personal protection,” he added.

Mr. Torrez pointed to a high-profile 2022 Supreme Court case which has come to be known as the Bruen decision.

In the decisive 6-3 ruling, the nation’s highest court struck down a New York requirement that concealed carry permit applicants prove they have good cause to carry a firearm, finding that gun laws must be consistent with the United States’ historical tradition to be considered constitutional.

Under the standards set forth in Bruen, any government attempt to interfere with someone’s Second Amendment rights is “presumptively unconstitutional” unless the government can find solid historical parallels, Mr. Torrez warned, noting that this is a very narrow legal pathway that Ms. Grisham’s order is unlikely to survive.

Mr. Torrez further argued that the 30-day carry ban isn’t particularly good policy-wise, noting that it won’t stop criminals from carrying guns, but it will enrage law-biding citizens who have already lost patience with the restrictions the government placed on them in the name of public health during the COVID-19 pandemic.

“Considering the extraordinary resistance that many citizens had to certain public health restrictions during the recent COVID pandemic, I believe it is unwise to stretch the definition of a ‘public health emergency’ to encompass something that is fundamentally a public safety issue.”

More Lawsuits Roll In

As of Sept. 12, Ms. Grisham and several officials of her administration are facing at least three lawsuits. The latest legal effort to blocked the order was launched by the Second Amendment Foundation (SAF), a national advocacy group based in Washington state.

Suing on behalf of a Bernalillo County gun owner, the SAF said the “public health” order runs afoul of the Bruen decision.

“The Supreme Court has recognized that, under the Second Amendment, ‘ordinary law-abiding citizens have a ... right to carry handguns in public for self-defense,’” the complaint stated.

In addition to Ms. Grisham, the suit named New Mexico Health Secretary Patrick Allen, Public Safety Secretary Jason Bowie, and State Police Chief Troy Weisler as defendants.

“Despite her clams to the contrary, Gov. Grisham does not have the authority to ’suspend' the Second Amendment for an alleged public health emergency or any other reason. Neither do any of the other defendants, nor can they legally enforce such a suspension,” Alan Gottlieb, SAF’s founder and executive vice president, said in a statement to The Epoch Times.

Resistance Among Authorities

Several municipal and county officials have expressed at least some unwillingness to join the governor in pursuing the ban. In a statement to KOB4, a local NBC affiliate, Albuquerque Mayor Tim Keller said he would leave the decision of whether to enforce the order up to the state police.

“APD (Albuquerque Police Department) is not responsible for enforcing the governor’s ban, our officers will continue to enforce all criminal laws, combat gun violence, and push for needed justice in our city,” the mayor, a Democrat, told the outlet.

Similarly, Albuquerque Police Chief Harold Medina also told his deputies that it’s not their job to handle civil violations of the carry ban, which could result in a fine of up to $5,000.

“The governor made it clear that state law enforcement and not APD will be responsible for enforcement of civil violations of the order,” the police chief said.

Bernalillo County District Attorney Sam Bregman, whom Ms. Grisham appointed, also refused to enforce the order.

“As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional,” he told The Associated Press. “This office will continue to focus on criminals of any age that use guns in the commission of a crime.”

Bernalillo County Sheriff John Allen went further to denounce the governor’s order as not only unlawful but also meaningless.

“It’s unconstitutional, so there’s no way we can enforce that order,” the sheriff said. “This ban does nothing to curb gun violence.”