Gov. Michelle Lujan Grisham’s public health order barring lawful concealed carry in parks and playgrounds in Albuquerque and Bernalillo County went under the microscope on Monday morning as the five justices on the New Mexico Supreme Court heard oral arguments in a case challenging the governor’s authority to issue a public health emergency on “gun violence” as well as the restrictions she unilaterally imposed as part of her orders.

The governor’s orders are also being litigated in federal court, but the state-level challenge, known as Amdor v. Grisham, focuses on whether the governor has the power under the state’s Public Health Emergency Response Act to declare an emergency on “gun violence”, as well as whether the specific provisions of her executive action violate the rights of New Mexico residents, whose right to keep and bear arms is protected not only by the Second Amendment of the U.S. Constitution, but also by Article 2, Section 6 of the state constitution.

There are basically three questions at the heart of the Amdor case: Does the governor have the authority to declare a public health emergency? Is this a legitimate emergency? Finally, do the governor’s actions go too far and violate the civil rights of New Mexico residents?

The justices peppered attorneys for both sides with some difficult questions, asking the plaintiffs attorney (representing the National Rifle Association, the Republican and Libertarian parties, and several individuals including members of the legislature, gun owners, law enforcement, and a gun store owner) why the courts should get involved given that the state legislature wrote the statute that can be read to give Grisham almost open-ended authority to declare anything an “emergency”.

The governor’s attorney, who insisted that Grisham’s carry ban was nothing more than an “inconvenience”, was grilled about whether Grisham’s order really does comply with the statute, which limits emergencies to ” the occurrence or imminent threat of exposure to an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm to the population of New Mexico or any portion thereof.” Is “gun violence” an imminent threat or a chronic condition? Justice David K. Thomson noted that Grisham has already renewed her orders four times, and wondered if thag isn’t a sign that Grisham is trying to impose a permanent policy through executive, not legislative action. 

Chief Justice C. Shannon Bacon also wondered just how far the governor could go if she, for instance, declared a public health emergency over drunk driving. Could Grisham suspend the right to drive in a county because of high rates of DUI? Almost anything could be a public health emergency if the court adopts the governor’s perspective, and Bacon repeatedly asked where the line should be drawn. 

Even if the state Supreme Court concludes that Grisham has the executive authority to declare a public health emergency over broad and longstanding societal concerns (as opposed to the sudden dispersal of toxic chemicals or even a pandemic), the justices may decide that the governor’s power does not extend to stripping people of their right to bear arms in places where the legislature hasn’t prohibited the practice. Concealed carry holders aren’t the ones driving violent crime in New Mexico, and the governor’s office could document any cases of concealed carry holders being arrested or charged with any act of “gun violence” in a park or playground in Albequerque or Bernalillo County, either before or after the governor issued her edict.

I don’t know how much we can read into the questions that were posed, but I didn’t get the idea that the Supreme Court was ready to rubber-stamp Grisham’s carry ban. With Chief Justice Bacon promising to deliver a verdict “as time permits”, we could be waiting a while for an answer to the questions raised in today’s oral arguments. In the meantime, the federal litigation has moved to the Tenth Circuit Court of Appeals for the time being, with the next step in We the Patriots v. Grisham and Fort v. Grisham a hearing on the plaintiff’s request for an injunction against Grisham’s current order. No hearing date has been set as of today, so gun owners in the Albuquerque area who want to lawfully carry in order to protect their kids in parks and playgrounds still run the risk of a citation and the possibility of a $5,000 fine if they’re discovered… at least for the time being.