A coalition of Second Amendment organizations, including the Second Amendment Foundation, National Rifle Association, and Firearms Policy Coalition are suing New Mexico Gov. Michelle Lujan Grisham over her recent emergency order mandating the closure of lawful firearms retailers and gun ranges during the coronavirus pandemic.
The lawsuit filed in federal court is known as Aragon v. Grisham, and it lays out a powerful argument that Gov. Grisham and the New Mexico Department of Health are violating the Second Amendment rights of residents with the order that forced gun shops and ranges across the state to shut down, starting with the fact that the federal government considers gun stores (and the entire firearms industry) to be a critical part of the nation’s workforce.
The closure of licensed firearms dealers under Executive Order 2020- 004 and the Public Health Emergency Order exceeds the scope of power authorized under New Mexico Law and violates the Second and Fourteenth Amendments to the United States Constitution.
Notably, on March 28, 2020, the Department of Homeland Security, Cyber-Infrastructure Division (“CISA”), issued an updated “ADVISORY MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING COVID-19 RESPONSE,” under its Web page for “Guidance on the Essential Critical Infrastructure Workforce” during the COVID-19 pandemic.
While the CISA’s guidance is advisory in nature, its findings and conclusions are inherently entitled to great weight in this context, particularly since they were “developed, in collaboration with other federal agencies, State and local governments, and the private sector” for the specific purpose of “help[ing] State, local, tribal and territorial officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.” To that very end, CISA specifically determined that “[w]orkers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” fall squarely within the “critical infrastructure workforce.” (emphasis added).
If that were the only argument, Grisham’s order might be upheld. After all, as the lawsuit notes, the CISA guidance is just that; guidance, not a mandate. However, the suit also points out that while the state’s Hazard Emergency Management Act empowers the governor to prohibit “the possession of firearms or any other deadly weapon by a person in any place other than his place of residence or business, except for peace officers,” (which also raises huge constitutional concerns) the law says nothing about prohibiting individuals from lawfully obtaining a firearm for self-defense.
What’s more, the state’s Public Health Emergency Response Act specifically states that one of the purposes of the law is “provid[ing] the state of New Mexico with the ability to manage public health emergencies in a manner that protects civil rights and the liberties of individual person.”
So far, we haven’t seen Gov. Grisham try to suspend the lawful carrying of firearms as the Hazard Emergency Management Act empowers her to do, though if she did, I suspect we’d see another court challenge to that provision of the law as well. In the meantime, there’s nothing in New Mexico law that specifically allows Grisham to order gun stores and ranges shut down, and plenty of evidence on the books that the governor is actually not empowered to take that step, either in New Mexico law or the U.S. Constitution.
The plaintiffs are seeking a temporary injunction blocking any enforcement of the governor’s order as it applies to gun stores and ranges while the case is winding its way through the legal system, and we could see a ruling on that request sometime next week.