From the motion for a temporary restraining order in Nat’l Ass’n for Gun Rights v. Grishamfiled yesterday in New Mexico federal court (paragraph numbering removed).
Governor Grisham issued Executive Order 2023-130 (the “Executive Order”) on September 7, 2023…. In the Executive Order, Governor Grisham declared that New Mexico is under a state of emergency due to gun violence.
Based on the executive order, [N.M. Secretary of the Department of Health Patrick Allen issued “Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures” dated September 8, 2023 (the “PHE Order”)[:] …
 No person, other than a law enforcement officer or an authorized public safety officer, may possess a firearm… whether openly or concealed, in cities or counties that have an average of 1,000 or more violent crimes per 100,000 residents per year as of 2021 according to the Federal Bureau of Investigation’s Uniform Crime Reporting Investigation Program AND more than 90 firearm-related emergency room visits per 100,000 residents from July 2022 to June 2023 according to the New Mexico Department of Public Health [which, according to news accounts, includes only Bernalillo County, where Albuquerque is located -EV]except:
[A] On private property owned or immediately controlled by the person;
[B.] On private property not open to the public with the express consent of the person who owns or has immediate control over such property;
[C.] While on the premises of a licensed firearms dealer or gunsmith for the purpose of lawfully transferring or repairing a firearm;
[D.] While engaged in the legal use of a firearm at a properly licensed shooting range or sport shooting venue; or
[E.] While traveling to or from a location mentioned in Paragraphs (1) [sic] to (4) [sic] of this section; provided that the firearm is in a locked container or locked with a firearm safety device that renders the firearm inoperable, such as a trigger lock….
The bridge states that the appropriate test for applying the Second Amendment is: “ When the plain text of the Second Amendment includes an individual’s conduct, the Constitution presumptively protects that conduct.  The government must then justify its regulation by demonstrating that it is consistent with the country’s historical tradition of firearms regulation. Only then can a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” …The Carry Prohibition outright prohibits plaintiffs from carrying handguns (or any other firearm) in public for self-defense. Therefore the plaintiffs’ burden under step one of the The bridge The analysis can easily be satisfied for the same reason in which it was found The bridge….
In The bridge, New York State has granted a general right to public transportation. Instead, New York argued that the Second Amendment allows a state to condition the carrying of firearms in certain areas based on demonstrating a “need” for self-defense in those areas. The Court ruled that to “support that claim, it is the responsibility of respondents to show that New York’s requirement for good cause is consistent with this nation’s historical tradition of firearms regulation .” After an extensive analysis of the relevant historical tradition, the Court found that New York failed to demonstrate that its law was consistent with the nation’s historical tradition of firearms regulation.
If New York’s “good reason” requirement for public transportation failed Bruen’s In the second step, New Mexico’s outright ban on public transportation under all circumstances necessarily fails Bruen’s second step too. The Court can reach this conclusion without reviewing any of the relevant history because, by simple logic, it is not possible for New Mexico to demonstrate that an absolute ban on public transportation is consistent with history and tradition, while even a valid reason is required public transport was not….
Plaintiffs [also] the desire to enter private businesses open to the public while lawfully carrying a firearm for lawful purposes, including self-defense, without first obtaining the express permission of the person who owns the property. The Carry Prohibition prohibits that behavior. Last month, inside Wolford v. López (D. Haw. 2023), the court issued a TRO and preliminary injunction enforcing a nearly identical Hawaiian law. Hawaii argued that there was historical support for the ban on conveyance on private property without permission. After examining the historical evidence presented by the state, the court rejected his argument. It wrote:
… The State has not established that the portion of [the statute] prohibiting the carrying of firearms on private property open to the public is consistent with this country’s historic tradition of gun regulation. Because the state has failed to meet its burden, the plaintiffs are likely to succeed on their challenge [the statute] as far as [the statute] prohibits the carrying of firearms on private property open to the public.
The historical record has not changed since last month. Like Hawaii, New Mexico will not be able to demonstrate that Carry Prohibition’s ban on legally transporting firearms to private businesses in affected areas open to the public without first obtaining the express consent of the person who owns the property well, in accordance with the historical situation of this country. tradition of gun regulation. There is no such historical tradition. Therefore, the state cannot bear its burden.
I plan to blog the other side’s argument as soon as it becomes available. (You can read the full order, which is in effect until October 6, here.) In the meantime, here is the relevant part of the right to bear arms in the New Mexico Constitution (enacted in 1971):
No law should limit the right of a citizen to keep and bear arms for safety
defense, for lawful hunting and recreational use, and for other lawful purposes, but nothing herein shall authorize the carrying of concealed weapons.
City of Las Vegas vs. Moberg (1971) interpreted the 1912 constitutional provision on the carrying of arms (“The people shall have the right to bear arms for their security and defense, but nothing herein shall authorize the carrying of concealed weapons”) as an invalid law prohibiting both. open and concealed carrying of weapons. The argument in this federal case is not based on the state constitutional provision (probably because federal courts generally cannot issue injunctions against state governments that violate state law), but I thought it was worth mentioning since the governor of New Mexico is of course required to comply with the state constitution.
Thanks to Louis K. Bonham for the reference.