New Mexico Gov. Michelle Lynn Lujan Grisham’s “emergency” order banning the carrying of firearms in Albuquerque and Bernalillo County is a violation of the natural rights of the people, and likely a violation of the state constitution as well.
Natural Right of Self-Defense
This should be obvious — but the Bill of Rights doesn’t give you rights. The Second Amendment is not your “gun permit.” The fact that you exist serves as your gun permit. As John Dickinson (the Penman of the American Revolution) put it, “Our liberties do not come from charters; for these are only the declaration of pre-existing rights.”
I can’t emphasize this enough – your rights don’t come from government.
As Supreme Court Justice James Wilson wrote in his 1791 Lectures on Law, “The defense of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.” [Emphasis added.]
He was echoing the words of Mercy Otis Warren in her Observations on the New Constitutions and on the Federal and State Conventions (1788).
“Self defense is a primary law of nature, which no subsequent law of society can abolish.” [Emphasis added.]
St. George Tucker, the author of the first systematic commentary on the U.S. Constitution, made a very similar assertion.
“The right of self defence is the first law of nature.“
In other words, your right to defend yourself is the first among many natural rights that exist whether government acknowledges it or not.
Tucker went on with a poignant warning.
“In most governments, it has been the study of rulers to confine this right within the narrowest limits possible.”
Gov. Grisham is the latest among many government people to do just that.
An Illegal Order
Grisham’s order not only violates the natural rights of every person living in Bernalillo County, but it as Brion McClanahan noted in a recent podcast, it also likely violates the New Mexico state constitution.
The governor banned the carrying of firearms in Albuquerque for 30 days under the auspices of “an emergency public health order.” In effect, she is using COVID-era powers to ban firearms. While the New Mexico legislature did give sweeping powers to the governor to make rules during a health emergency, using that power to ban guns clearly stretches the law beyond its intent.
Furthermore, the emergency COVID authority granted to the governor arguably violated the separation of powers clause (Art. 3 Sec. 1) of the state constitution. It does not authorize the legislature to transfer legislative powers to the executive branch.
More fundamentally, Article 2 Section 6 protects the right to keep and bear arms in New Mexico.
“No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.”
In 2004, the New Mexico Supreme Court held that the state constitution neither forbids nor grants the right to keep and bear arms in a concealed manner. Grisham could theoretically ban concealed carry, but she cannot ban open carry. By doing so, she clearly violated the New Mexico constitution.
The Second Amendment
While there is plenty of ammunition in the New Mexico state constitution to oppose Grisham’s tyrannical order, very few people are talking about that. Instead, they are pointing to the Second Amendment and making it a federal case.
But contrary to conventional wisdom, making it a 2A issue and relying on federal courts to solve this in favor of liberty is likely to be a pyrrhic victory, at best.
This is a dangerous strategy.
Trying to make this a Second Amendment issue is a double-edged sword – as it could further limit your right to keep and bear arms rather than enhance it — whether you live in New Mexico or not.
It’s important to understand that the Bill of Rights, including the Second Amendment, was not originally intended to apply to the states.
The fact of the matter is the Bill of Rights was poorly named. It should have called it the Bill of Restrictions. It places specific restrictions on government – a specific government – the federal government. The preamble of the Bill of Rights makes this clear.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. [Emphasis added]
The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the powers delegated to “the government” — the federal government — created by the Constitution. Notice the word government is not plural. The Bill of Rights makes no mention of state governments. In fact, the state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions with bills of rights to do that job.
The indisputable fact is that the Bill of Rights was not originally intended to apply to state governments. This isn’t debatable. In fact, James Madison’s original proposal for amendments that became the Bill of Rights applied several to the states. This was rejected.
The Incorporation Doctrine – A Trojan Horse
The only way the Bill of Rights was ever considered to restrict the actions of state governments was due to the incorporation doctrine through the 14th Amendment. The Supreme Court invented this legal doctrine out of thin air some 50 years after the 14th was ratified. (And it is dubious based on the original intent of the amendment.)
Most liberty-minded people love the incorporation doctrine because they think that it “protects their rights.” But it serves as a trojan horse that centralizes power in the federal government and gives nine politically connected federal lawyers an unprecedented amount of authority to determine the extent of your rights and just how far every government in America can go to violate them. I get the appeal, but this is only a good idea if you believe federal judges will consistently side with your individual rights over government power.
They almost always don’t.
Just consider the Heller case – one of the ones 2A people love to point to as a success. While Judge Antonin Scalia did affirm the right to keep and bear arms as an individual right (good), he also said that it isn’t absolute. This gives plenty of wiggle room for a federal judge to uphold Grisham’s “emergency” order.
Just recently, a federal district judge denied a motion for a temporary injunction on a Washington state law banning firearms defined as “assault weapons,” U.S. District Court Judge Robert J.Bryan argued that the existence of state laws limiting firearms in the early years of the United States proves the Second Amendment allows for bans on certain firearms. (Yes, there have always been state laws restricting firearms.) If it weren’t for the incorporation doctrine bleeding into 2A jurisprudence, he couldn’t make this dumb argument.
Of course, we all know that government courts are going to undermine our rights to some degree. All of them. The problem with the incorporation doctrine is that it turns every local issue into a federal case and one bad decision effectively becomes the law of the land. Every once in a while, the SCOTUS might get something right. Yay. But in the vast majority of cases, it erodes away individual rights, and that becomes the “national” standard. I can give you countless examples where the Supreme Court stepped into local issues and created horrible standards that are now nationalized – particularly when it comes to the Fourth Amendment. If people realized how badly the federal courts have eviscerated 4A, they’d probably be less keen on letting them make decisions about guns. (Here’s just one example.)
So, if the federal courts uphold Grisham’s order (and I think there is a fair chance they will because courts are keen to recognize “emergency powers”) this will become the standard for every state. Or it’s possible federal courts will strike Grisham’s order down arguing that there wasn’t an actual emergency, but they’ll go on to say if there was a legitimate emergency, Grisham’s order would be fine. This scenario might be even worse because everybody will read the headline and call it a win.
If this happens, “emergency orders” usurping the right to keep and bear arms will become the de facto law of the land.
Conversely, if the case was handled in New Mexico (as I think it should be) and there was a bad decision, it would only impact New Mexico. That’s bad for New Mexicans, of course. But the beauty of decentralization is it contains such tyranny to smaller jurisdictions.
If they insist on going the court route, people in New Mexico would be much better off fighting this through the state constitution.
A BETTER STRATEGY
Suing in government courts isn’t generally a path to liberty. Resistance and refusing to comply with the order would be a much better strategy.
That was exactly what James Iredell, one of the first Supreme Court justices – told us to do.
“The only resource against usurpation is the inherent right of the people to prevent its exercise. And the people will resist if the government usurp powers not delegated to it.” [Emphasis added]
Notice he didn’t consider resistance a mere “good idea,” or a potential solution to be used later after suing in federal court. He considered it essential — the “only resource” in response to usurpation.
I know I’m pretty much shouting at the clouds. Liberty-minded people can’t seem to resist government centralization for liberty. They imagine that they can use the federal courts as some kind of “liberty enforcement squad.” But they would be much better served to listen to the warnings of Patrick Henry who said “Consolidation (the founding era term for centralization) must end in the destruction of our liberties.”