Firearms Owners Against Crime

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Judge Denies Preliminary Injunctions to Block New Mexico’s Gun Ban :: 10/12/2023

A District Court Judge in New Mexico denied a preliminary injunction to stop the current version of Governor Michelle Lujan Grisham’s public health order that banned guns in Bernalillo County public parks and playgrounds.

New Mexico’s original public health order banned the carrying of all guns in Albuquerque and the surrounding areas. This order was in direct contradiction to the Supreme Court’s Bruen decision.

Gov. Lujan Grisham claimed that she had the ability to violate Constitutional rights if it was in the interest of public health. Almost all legal scholars disagreed with the Governor. The Bernalillo County Sheriff’s Department and the Albuquerque Police Department (APD) refused to enforce the ban because of Constitutional concerns.

The ban would cause multiple gun rights organizations to file suit, asking for a temporary restraining order (TRO) and a preliminary injunction (PI) against the Governor’s public health order.

New Mexico Attorney General Raúl Torrez refused to defend the Governor and her public health order because he believed the order was Constitutionally dubious. The Governor would push ahead with the order anyway.

All the cases challenging the order were heard in front of District Court Judge David Urias simultaneously. The Judge would issue a TRO while considering a preliminary injunction, temporarily putting the public health order on hold. The Governor would modify her order to only apply to public parks and “public areas provided for children to play in.” Most believe that the Governor was trying to moot the cases. The plaintiffs would continue to move forward with their cases.

At the preliminary injunction hearing, the Judge asked if the plaintiffs still had a case since the Governor changed her order. All the plaintiffs wanted to continue, insisting their cases were not moot. The defendants also told the court that the Governor was planning to extend the public health order. Judge Urias would extend the TRO while considering the PI.

Shortly after the hearing, the Governor would once again modify the order. The order still forbids firearms in parks and playgrounds but removed “public areas provided for children to play in.” This change seems to be in response to the Judge’s doubts about the clarity of banning guns in public areas where children play.

The Judge has now decided on the motion for a preliminary injunction. The Judge ruled that the plaintiffs were not likely to succeed on the merits of the case, which is the most critical requirement for obtaining a PI.

Bruen said that any gun regulation must be consistent with the text, tradition, and history of the Second Amendment. No historical analog exists for a gun ban in parks and playgrounds from 1791 when the Second Amendment was ratified.

He reasoned that the founding era was not the ratification date of the Second Amendment. He claimed the founding era was started in 1868 during the reconstruction era when the Fourteenth Amendment was ratified. At that time, gun laws were being passed in the South to prevent formerly enslaved people from obtaining firearms. These racist gun laws are the ones that Judge Urias used in his decision.

“In Antonyuk, Koons, and Maryland Shall Issue, each of these district courts discussed, to varying extents, the historical evidence of gun restrictions at public parks during the time of the ratification of the Fourteenth Amendment. In Antonyuk, the court observed two state laws, one from Texas in 1870 and one from Missouri in 1883, and city laws and regulations from New York City, N.Y., Philadelphia, Pa., Chicago, Ill., St. Louis, Mo. and St. Paul, Minn., which restricted the Case carrying of firearms in public parks during and after the ratification of the Fourteenth Amendment,” the Judge wrote.

This is not the first time we have seen the courts use the 1868 date to get around the Bruen test. The Eleventh Circuit Court of Appeals has adopted this date as the founding era. It might take another Supreme Court case to force anti-gun judges to use the ratification date of the Second Amendment instead of an era of Jim Crow laws.

Most, if not all, parties expect to appeal the District Court’s decision.

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