So far, two lawsuits have been filed challenging New Mexico Governor Grisham’s wacky executive order suspending the Second Amendment in parts of the state, and I strongly suspect more will be filed today. The complaints and motions for TRO/preliminary injunction (linked in this post) are very short and self explanatory, and I encourage people to read them.
Executive summary of both: Under the Supreme Court’s Bruen decision, categorical bans on public carry are clearly verboten. But that’s exactly what this dimbulb Governor is purporting to do.
Both suits correctly note that the first prong of the Bruen test — does a law restricting public carry affect Second Amendment rights? — was squarely addressed by Bruen, so that’s not even remotely in question. The second prong — government’s burden to prove historical analogues — will fall on New Mexico, but there’s no way they can satisfy it (indeed, SCOTUS disposed of this in Bruen as well).
As such great legal minds such as Ted Lieu and David Hogg have recognized, governors do not have the power to suspend the federal Constitution just because they declare an “emergency.”
As of this morning, the cases haven’t been assigned to judges yet. That’s not unusual, as this is handled by the clerk’s office, based on random assignment, which won’t be open until Monday. There are five active status district judges and one senior status judge in the Albuquerque division. Three are Bush II appointees, two are Biden appointees, and one is a Trump appointee, so the odds of drawing a good judge on at least one of these cases are pretty favorable. (There would be some karma in a case being assigned to Bush II appointee Judge James O. Browning.)
But this matter is so easy that even a Biden appointee is likely to choke on it and issue a TRO. And if somehow they don’t, the 10th Circuit or SCOTUS will certainly do so.
My over/under for issuance of a temporary restraining order blocking enforcement of the carry ban is noon Tuesday. And given the backlash and lack of support from local officials she’s gotten, I won’t be surprised if Grisham reads the room and vacates the order herself before then.
I really wish there wasn’t Eleventh Amendment immunity for punitive damage awards for section 1983 claims against state officials. You can get such awards against local officials but not state officers — for them, all you can get is prospective injunctive / declaratory relief.
If there ever were cases that justified awarding punitive damages for a deliberate, knowing, bad faith violation of constitutional rights, these cases qualify.
LKB is an attorney, a member of the Supreme Court Bar and an occasional TTAG contributor.