Sheriff in New Mexico’s most populous county rejects governor’s gun ban, calling it unconstitutional

But this isnt something put into law by the judicial process. It was an EO that appears to at least possibly violate 2A.

 

I can understand why this would cause trouble. Questions like who polices the police are thorny as they come.

 

Come on now, not allowing “open carry” and carry into govt buildings and public parks doesn’t inherently violate the constitution.

It’s more of a separation of powers issue, and I don’t mean that in the same sense as our federal constitution - it’s what type of powers does the NM state constitution grant the governor. If someone violates the “order”, but there’s no crime on the books at a state or local level, how is that even enforced? Question like that. The interesting thing is NM has large dem majorities in their state legislature. So that the Governor went out on her own seems like a stunt. There’s no reason they couldn’t pass sensible gun reform at a state level with those majorities. Though my understanding is this is actually targeted at one city where gun crimes have been at issue, it’s not even statewide. In that case it should have been done by city ordinance or with the cooperation of the city. Just dropping an executive order isn’t the way to go, but as I said it’s probably designed as more of a stunt so the Governor can say “look at me, I’m doooing something”.

 

State legislatures routinely pass things you could say are unconstitutional (drag bans are pretty clearly violations of the 1st amendment/free expression), and often are later ruled as such. State courts make rulings that are challenged as unconstitutional. As always, it comes down to "can it be enforced." You can literally sign any EO you want, rule something constitutional or pass any bill you want, its "constitutionality" comes down to its enforceability.

 

The sheriff thinks he has the power... He's elected too. She'd have to sue him and that would bring up her "right" to suspend their Constitutional rights. I don't think she want's to drag this into the courts becasue the people don't want their Constitutional rights abridged or suspended. I wouldn't, and I doubt many of New Mexico's citizen residents would want her to have that kind of power.

I'm just glad they have someone to stand up to her. She is a national test case for this type of power grab/overreach, and she and her financial handlers (special interest groups) know it.

 

Nah, it’s a facial Second Amendment violation under existing precedent. The order is here: https://www.governor.state.nm.us/wp-content/uploads/2023/09/090823-PHO-guns-and-drug-abuse.pdf

It prevents any private person from possessing a gun anywhere other than their own private property, private property of someone who has given them express permission to have a gun, a licensed gun store, a licensed shooting range, or in a locked container while driving to one of those places.

When there’s SCOTUS precedent expressly saying the Second Amendment protects the right to carry a handgun in public for self-defense, that’s not a terribly hard constitutional question, at least in the lower courts.

I guess they could try to argue that she has found the entire city of Albuquerque to be a “sensitive place” under Bruen, but that would also seem to be a frivolous argument given that the Court expressly rejected the argument that the entire island of Manhattan could be a “sensitive place.”

 

It’s an interesting question in closer cases where there’s a good faith argument for constitutionality.

Somewhat less so in a case like this where pretty much any lawyer you ask would tell you it’s in fairly direct conflict with a U.S. Supreme Court decision from 15 months ago, and that there’s a non-zero chance you may get sanctioned if you try to defend its legality in court.

 

Key word from my post... "Possibly".

 

This is very true. However, I’m not sure it fundamentally changes my argument. If we agree that governors have the authority to draft executive orders for some valid reasons, is it up to the sheriff to decide whether this is an invalid reason?

 

The bolded part is the key. Otherwise it's plainly Constitutional under any good faith argument

 

No question it creates questions, but this seems so obviously unconditional based on Ben's post upthread, that I'm not sure a Sheriff is left with much choice.

 

Disagree, but this is the joy of Second Amendment interpretation - both sides are absolutely convinced the other side is completely ignoring fully half of the amendment.

You’ll tell me it only authorizes the national guard, and I’ll tell you the words “bear arms” are absolutely meaningless if all it means is that I can buy a gun at the gun store and then drive it to my house never to leave there ever again.

 

It's a bit more complex than that, but not much more. Not really a close call

 

I appreciate Ben’s argument. Of course, I’m always a little uneasy when we can’t produce an exact definition to determine when a law is obviously not in good faith (which unfortunately is basically always).

It does seem that Tampa also has a point, since the DC v Heller case made all the way to the USSC not that long ago.

So what is the next step to solve this standoff, the governor sues the sheriff?

 

Don't. Comply.

 

I think it is reasonable to see this as two elected officials who each think they have the right to overrule the other. And I know you don’t like using the courts to decide this kind of matter, but that is why the judiciary exists. I think we should always pay more heed to process rather than outcomes. If the rules of the game are fair, the outcome must be fair.

 

The jump back and forth between textualism and originalism to avoid the obvious illogic

Here are some prior musings rather than re-type

How the NRA Rewrote the Second Amendment: The Founders never intended to create an unregulated indiv

How the NRA Rewrote the Second Amendment: The Founders never intended to create an unregulated indiv

Looks my first long type has cycled off and no longer available

https://www.gatorcountry.com/swampg...-school-shooting.547393/page-21#post-13855731

Without retyping all, it's plain that the Constitution and the Second Amendment were drafted to avoid a standing army. If you think the 2A means what they say it means, you think the US Army as constituted in unconstitutional.

VA also covers it a bit here
How the NRA Rewrote the Second Amendment: The Founders never intended to create an unregulated indiv

 

Just another emergency powers trial balloon...gotta nail down how much they can push the plebs post covid.

 

That's not true. The sheriff is fully able to let a person sue and a court rule. Is that the right approach? I struggle with that question. But it's certainly a valid option, and it's actually the expectation we have for public officials.