Federal Appeals Court Delivers Bad News to New Mexico's Gun-Banning Governor

AP Photo/Morgan Lee

New Mexico Gov. Michelle Lujan Grisham's bid to block lawful concealed carry in public parks in the state's most populous city and county took a major hit on Monday when the Tenth Circuit Court of Appeals rejected her request to stay a lower court injunction and allow law enforcement to start issuing civil fines to licensed concealed carry holders caught with a pistol in parks in Albuquerque and Bernalillo County. 


Originally, you will remember, Grisham tried to ban concealed carry everywhere in Albuquerque and Bernalillo County, but a federal judge shot that down fairly quickly. Grisham responded by amending her public health order to "only" ban concealed carry in parks and playgrounds, but the district court judge limited that even further by granting an injunction against enforcing her order in public parks while allowing the ban in playgrounds to remain in effect. 

In her appeal to the Tenth Circuit, Grisham and her attorneys argued that concealed carry bans in public parks are well within the national tradition of gun ownership, citing "well over a hundred laws prohibiting guns in parks" that were adopted in the latter half of the 19th century and early 20th century. According to the anti-gun governor, those ordinances were part of a broader tradition of "prohibiting guns in crowded public forums and gathering places and in schools."

That argument flies in the face of what the Supreme Court said about the right to carry in Bruen. In that case, the Court determined that "sensitive places" where guns were prohibited were few and far between in the 18th and 19th centuries, and cautioned governments like New York from attempting to turn the vast majority of publicly accessible places into "gun-free zones". 


While the Tenth Circuit panel hasn't yet issued a formal opinion explaining its decision to turn down Lujan Grisham's appeal, when U.S. District Kea W. Riggs rejected the governor's arguments and granted the partial injunction, she informed the defendants that they had failed to make the historical case for the carry ban. When the governor appealed that decision to the district court, Riggs once again explained that the state had failed to meet its burden and upheld her original injunction. 

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.

Considering the evidence before the Court at the time the preliminary injunction was issued, the Court concludes that it did not err in concluding that Defendants failed to carry their burden to establish a historical tradition of firearm regulations in public parks. Therefore, the Court concludes that (1) Defendants have not shown an error warranting reconsideration and (2) Defendants have not demonstrated they are likely to succeed on the merits of an appeal warranting a stay of the preliminary injunction.


If the Tenth Circuit panel believed that a ban on concealed carry in public parks was likely constitutional, the judges almost certainly would have granted the governor's request to stay the injunction. The fact that the panel rejected her argument isn't a guarantee that Second Amendment advocates are going to be victorious as the case moves forward, but it's still very good news for gun owners... and a big setback for New Mexico's gun-banning governor. I'm still hopeful that her entire public health order will come crashing down as a result of the multiple legal challenges that have been filed, but for now, at least, it remains dramatically scaled back from both its original and amended form. 

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