We previously discussed New Mexico Gov. Michelle Lujan Grisham’s effort to effectively ban guns (both open carry and concealed) with a flagrantly unconstitutional public health emergency order last year. After triggering a court fight, Grisham backed down and scaled down her order to ban concealed weapons in parks and playgrounds. The park ban was enjoined by U.S. District Kea W. Riggs as presumptively unconstitutional, leaving only a small fraction of Grisham’s original effort. Now, the United States Court of Appeals for the Tenth Circuit has rejected her bid to lift that injunction in a key decision on appeal.
The demands for injunctive relief are based on a substantial likelihood that a party will prevail on the merits. While the gun rights advocates were clearly able to establish that before Judge Riggs, Gov. Grisham had no success before the Tenth Circuit in dislodging that presumptive finding. The rejection of the challenge to the injunction suggests that the appellate court is equally unimpressed by the legal and historical arguments put forward by the state.
Grisham argued that the park ban was well-founded in historical precedent. Primarily focusing on the Reconstruction period as the relevant measure, Grisham offered a record of “more than one hundred historical restrictions on firearms in parks and a separate compilation of historical prohibitions on firearms in public gathering places.”
While the Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), found few such examples, Grisham maintained that it was common to bar guns from places like parks.
That argument did not go down well with Judge Riggs who held in the district court:
In sum, Defendants provide no evidence illuminating the scope of the SecondAmendment before or around the time it was adopted. As to the time of the enactment of the Fourteenth Amendment, Defendants presented insufficient evidence illuminating such understanding. The majority of Defendants’ citations come at least 20 years after the enactment of the Fourteenth Amendment, which the Bruen decision gave less weight, and considered to the extent it was consistent with earlier law. Under the circumstances of this case, Defendants’ citation primarily to historical analogues from the late 19th century and early 20th century is insufficient to establish a historical tradition of firearm regulation in relevant historical analogues.
The New Mexico litigation follows a pattern of blue states creating bad precedent in ill-considered cases. Grisham’s original plan was designed for maximum political impact, but little chance of legal success. She is still doubling down and increasing the losses in the courts.
We have seen how Democratic strongholds have proven the greatest assets for gun-rights advocates.
Major Democratic cities are delivering lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.
In 2008, the District of Columbia brought us District of Columbia v. Heller, the watershed decision declaring that the Second Amendment protects the individual right of gun possession.
In 2010, Chicago brought us McDonald v. City of Chicago, in which the Court declared that that right is incorporated against state and local government.
Of course, no state has done more for the Second Amendment than New York. The state has been a fountain of unconstitutional laws — and the basis for a series of wins for Second Amendment advocates.
This effort is particularly important because it follows an early strategy out of New York to effectively ban guns by declaring everywhere a “sensitive place.”
New York Democratic Gov. Kathy Hochul promised such legislation within an hour of the release of Bruen. The Concealed Carry Improvement Act passed 43-20. While I noted that the law “has some elements likely to pass constitutional muster,” it followed the same pattern of past laws in creating an easy target for gun rights advocates.
After Bruen was handed down recognizing that limits in some sensitive places could be constitutionally permissible, Hochul went on television to say in a mocking tone that they would just come up with a long list of sensitive places. At the time I remarked that it was a rather foolish statement since that clip will be cited by challengers to show a clear attempt to undermine the ruling with yet another transparent loophole argument.The list covered most areas outside of the home, including government buildings; any location providing health, behavioral health or chemical dependence care or services; any place of worship or religious observation; libraries; public playgrounds; public parks; zoos; the location of any state funded or licensed programs; educational institutions both in elementary and higher education; any vehicle used for public transportation; all public transit including airports and bus terminals; bars and restaurants; entertainment, gaming and sporting events and venues; polling places; any public sidewalk or public area restricted for a special event; and protests or rallies.
Neither Hochul nor Grisham has been successful in maintaining their sweeping original bans. As previously suggested, more modest original proposals would have had a greater chance of success while reducing the potential cost for the Second Amendment precedent. However, their legal losses met with political success. Even though courts have found that they are violating the Constitution and these cases only expand countervailing precedent against gun controls, such measures remain popular in their states.
The case will now go forward with the injunction in place as the judges prepare to rule on the final merits.