NEW MEXICO GOVERNOR MICHELLE GRISHAM’S SEPTEMBER 8, 2023 PUBLIC HEALTH ORDER IS NOT ONLY INCONSISTENT WITH THE U.S. CONSTITUTION AND THE BRUEN RULINGS BUT ALSO INCOMPATIBLE WITH ITS OWN STATE STATUTES

PART ONE

The unilateral action by New Mexico Governor Michelle Lujan Grisham declaring a ban on civilian possession of a firearm, whether open or concealed, in public “to remain in effect for the duration of the public health emergencies. . .” is unconstitutional, unconscionable, and illegal.

See the Governor’s Press Release as issued from her Office.

Since the issuance of the Order on September 8, 2023, the number of articles coming out on this is legion. John Crump’s recent article, which appears in Ammoland Shooting Sports News is insightful. He points out that,

“The order will almost certainly be challenged on Constitutional grounds. The move seems to run afoul of the Bruen Decision, which said individuals have the right to carry firearms outside the home. The Supreme Court did not make any exceptions for ‘public health.’”

He continued, a challenge came swiftly. The case is  National Association for Gun Rights v. Grisham.

See also Article in “Reason,” posted by “The Volokh Conspiracy,” citing the case filed in the U.S. District Court of New Mexico.

The Nat’l Ass’n for Gun Rights moved for a Temporary Restraining Order to enjoin enforcement of Grisham’s Order, on September 9, 2023, just one day after the Governor signed the Order.

Citing Bruen, the Plaintiff Challenger laid out the legal framework supporting the TRO:

Bruen states that the appropriate test for applying the Second Amendment is: ‘[1] When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. [2] The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.’ Id., 142 S. Ct. at 2129-30 (internal citation and quotation omitted).

In Bruen, the Court wrote: ‘We therefore turn to whether the plain text of the Second Amendment protects [plaintiffs’] proposed course of conduct – carrying handguns publicly for self-defense. We have little difficulty concluding that it does.’ 142 S. Ct. at 2134. The [New Mexico] Carry Prohibition flatly prohibits Plaintiffs from carrying handguns (or any other firearm) in public for self-defense. Therefore, Plaintiffs’ burden under step one of the Bruen analysis is easily met for the same reason it was met in Bruen. Hence, the Constitution presumptively protects Plaintiffs’ Proposed Conduct. Another way of saying the same thing is that the Carry Prohibition is presumptively unconstitutional. C. The Government Cannot Carry its Burden Under Bruen.’

But, apart from the illegality of Grisham’s Public Health Order on Second Amendment grounds and on U.S. Supreme Court’s Bruen rulings, the Order runs contrary to Mexico’s own Statutes.

This latter matter has not yet been discussed. We do so here. But, to get a handle on this, we must do some unpacking of concepts.

We begin with the phrase, “Gun Violence,” which appears in the Governor’s Public Health Order.

For the longest time, the Anti-Second Amendment establishment has raged over this thing, “Gun Violence.” 

Both the Arbalest Quarrel and others have written about the fallacy connected with this expression.

Ammoland Shooting Sports News has published articles on this. See one by Dean Weingarten, published on November 29, 2022, and a second by Roger Katz, published on September 11, 2019.

The idea implicit in ‘Gun Violence,’ if one insists on the expression, is that of ‘Criminal Violence’ where a criminal uses “a gun” in the commission of a crime.

In that commonsensical view the phrase ‘Gun Violence’ simply denotes criminal use of guns, nothing more.

So why not eschew talk of Gun Violence for the appropriate expression, ‘Criminal Violence’?

Doing so would drive public policy where it belongs, on crime and criminals and away from the mechanism criminals sometimes employ, although not invariably, to do their horrible misdeeds.

But Democrats and Progressives don’t want to talk about crime and criminals. They don’t even want to talk about criminal use of guns.

They only want to talk about guns and reducing the number of them, and that creates a real problem.

For, who is it that owns and possesses most of those “guns?”

The answer is tens of millions of innocent, rational, responsible, law-abiding citizens.

And why do tens of millions of Americans wish to keep and bear guns?

Well, they do so for many reasons, all lawful, and one of which stands out as predominant, self-defense. 

The citizen’s exercise of his fundamental, natural law right to secure his life and well-being and that of his family with the most effective means to do so is both a noble purpose and an essential one, especially now, since many communities across the Country have suffered an acute shortage of police officers.

But little mention of this finds its way into the public square because Democrats and a sympathetic Press won’t allow it. They don’t want it. And the reason is plain.

These anti-American interests are the cause of our societal decay and they don’t want to acknowledge that. They dare not. For it is what they want, what their agenda is all about: the dissolution of our Free Constitutional Republic?

Anti-Second Amendment elements in Government, in the Press, and in the greater society have their own uses for ‘Gun Violence.’ It is they, after all, who have coined the expression.

And that phrase is the driving force behind the New Mexico Governor’s  Public “Health” Order.

The Governor’s message as reflected in her Order, is an arrogant assault on the conscience. Boiled down to its essence, the tacit message conveyed is this:

“Guns are a virus, a virulent contagion, and like all virulent contagions, must be rooted out, quarantined, and eradicated, and I, New Mexico Governor Michelle Lujan Grisham, intend to do just that!”

The idea of Guns as a virulent contagion is not a novel idea. It goes back decades.

Back in 1995, in an Academic Article, Don Kates and others wrote about the strategy to deny one’s exercise of the natural law right of armed self-defense by viewing guns as a health menace. The writers of the article referred to this strategy as “The Public Health Agenda.”

In 1979 the American public health community adopted the ‘objective to reduce the number of handguns in private ownership,’ the initial target being a 25% reduction by the year 2000. Based on studies, and propelled by leadership from the Centers for Disease Control and Prevention (CDC), the objective has broadened so that it now includes banning and confiscation of all handguns, restrictive licensing of owners of other firearms, and eventual elimination of firearms from American life, excepting (perhaps) only a small elite of extremely wealthy collectors, hunters, or target shooters. This is the case in many European countries. . . .

In sum, health leaders see violence as a public health crisis and the firearm as something akin to an infectious disease. For example, one author characterized guns as ‘a virus that must be eradicated.’ Their views receive wide exposure because, unlike criminology and other social scientific journals, medical and health periodicals announce the appearance of their articles on firearms with press releases describing their anti-gun conclusions. This follows the health advocate sages' avowed intention to promote the idea that firearm ownership is an evil and that its elimination is a desirable and efficacious means of reducing violence.

From “Guns And Public Health: Epidemic Of Violence Or Pandemic Of Propaganda?”, 62 Tenn. L. Rev. 513, Spring, 1995, by Don B. Kates, et. al.

Viewing “Gun Violence” as a medical matter is inane. It involves tortuous use of a literary device, metaphor, as a mechanism upon which to design and implement public policy.

The metaphor is that guns are like a virus.

But the CDC and other elements that demonstrate a rabid fear and abhorrence toward firearms don’t stop with metaphor, or they fail to see that what they take to be a “reality” is only a literary device. And we are the worst for it. They argue that “guns” ARE a virus, and therefore must be treated like any other virulent plague: vigorously attacked and stamped out.

And Governor Grisham’s Order is based on the metaphor of GUNS AS VIRULENT VIRUS and she attempts to apply the metaphor to law.

The effort, absurd to begin with, is doomed to fail if one stops to observe the absurdity of it and calls her out for it.

Our free Constitutional Republic is grounded on law, not metaphor.

Nonetheless, Grisham trusts that she can skate around the Second Amendment issue and the constraints of State law by focusing on guns as a public health menace and she hopes that no one will notice the card trick she employs, the use of metaphor, to do this.

It is unfortunate that pervasive and undeniable lunacy doesn’t prevent ideological fanatics who wield immense power from thrusting their lunacy on everyone else, embroiling us all in their nightmarish reality.

So, why isn’t anyone attacking the Governor’s lunacy head-on? That is where attention should first be directed.

Grisham cites several State Statutes to support the imposition of her unprecedented, draconian Order, suspending the operation of the Second Amendment in several areas of the State. Do these Statutes offer her support? Let’s see.

The most important of the Statutes upon which she bases her Order falls within the category of Public Health because Grisham points to the Order specifically as a “Public Health Order.”

N.M. Stat. Ann. § 12-10A-5 provides that,

A. A state of public health emergency may be declared by the governor upon the occurrence of a public health emergency. Prior to a declaration of a state of public health emergency, the governor shall consult with the secretary of health. The governor shall authorize the secretary of health, the secretary of public safety and the director to coordinate a response to the public health emergency.

BUT THE PERTINENT QUESTION HERE IS WHETHER THE MERE POSSESSION OF GUNS IN PUBLIC EQUATES WITH “GUN VIOLENCE” SUCH THAT THIS GUN POSSESSION QUA “GUN VIOLENCE” FALLS WITHIN THE LEGAL DEFINITION OF A ‘PUBLIC HEALTH EMERGENCY’ UNDER NEW MEXICO LAW.

In New Mexico, public health emergencies fall within the purview of N.M. Stat. Ann. §§ 24-1-1 — 24-1-44.

N.M. Stat. Ann. § 24-1-2 says this:

As used in the Public Health Act [Chapter 24, Article 1 NMSA 1978]:

A.  ‘condition of public health importance’ means 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; . . . .

So, then: Does “a condition of public health importance” include “Gun Violence” qua “Possessing Guns in Public” under New Mexico law?

No, it does not. This kind of thing does not fall within the purview of New Mexico’s “Public Health Act,” and therefore cannot be construed as a “Public Health Emergency” under New Mexico law.

A declaration of a Health Emergency Order must uniformly and internally follow all applicable laws.

N.M. Stat. Ann. § 12-10A-3 is the applicable “Definitions,” and Section. N.M. Stat. Ann. § 12-10A-3 (G) defines the phrase, ‘public health emergency.’

 ‘Public health emergency’ means the occurrence or imminent threat of exposure to an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm to the population of New Mexico or any portion thereof.

Does the phrase “exposure to an extremely dangerous condition” that appears in the afore-cited statutory section embrace “Gun Violence” qua “Possessing Guns in Public,” under New Mexico Law?

Such an idea would be a stretch—an impossible stretch. N.M. Stat. Ann. § 12-10A-2 explains why.

N.M. Stat. Ann. § 12-10A-2 (Purposes of the Act) says,

The purposes of the Public Health Emergency Response Act [12-10A-1 NMSA 1978] are to:

A. provide the state of New Mexico with the ability to manage public health emergencies in a manner that protects civil rights and the liberties of individual persons;

B. prepare for a public health emergency; and

C. provide access to appropriate care, if needed, for an indefinite number of infected, exposed or endangered people in the event of a public health emergency.

Paragraph “C” implies the presence of an ongoing and serious chemical, biological, or epidemiological hazard, causing illness to many people. Such a health emergency is objective and the harm caused to many is measurable and extensive.

A health emergency does not include criminological problems, sociological concerns, or matters deriving from political biases or animosities.

Paragraph “A” makes abundantly clear that any declaration of a public health emergency must be conducted in a manner that “protects civil rights and the liberties of individuals.”

The right of the people to keep and bear arms is one such fundamental right that requires protection when the New Mexico Governor declares, as here, a “Public Health Emergency.” 

BUT HOW CAN THE EXERCISE OF A FUNDAMENTAL CIVIL RIGHT, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS—THAT THE GOVERNOR IMPLIES IS THE PUBLIC HEALTH EMERGENCY (FOR THAT IS WHAT THE NEW MEXICO PUBLIC HEALTH ORDER TARGETS), AND ONE THAT MUST BE HARSHLY DEALT WITH—TRULY BE CONSIDERED A HEALTH EMERGENCY UNDER NEW MEXICO LAW WHEN THAT HEALTH EMERGENCY IS THE VERY FUNDAMENTAL CIVIL RIGHT THAT MUST, AS NEW MEXICO LAW MAKES CLEAR, BE PROTECTED DURING AN EMERGENCY?

The answer is, IT CANNOT! And that is the crux of the problem for Grisham and her “Public Health Order.”

Governor Grisham’s Order is legally incoherent, incompatible with State Statute, logically inconsistent, and, on analysis, overtly nonsensical.

The Order must be struck down because, as a matter of law, it is (1) illegal under State Statute, (2) illegal under both the United States Constitution and the Bruen rulings, and, as a matter of elementary symbolic logic, it is (3) self-contradictory.

We hope someone challenging Governor Grisham’s “Public Health Order” in Federal or State Court will make that argument.

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