Legal professor analyzes 30-day ban on carrying guns in public

ALBUQUERQUE, N.M. – There’s more outrage and more promises of challenges in court over the temporary gun ban in place in Bernalillo County.

Democratic Gov. Michelle Lujan Grisham put the controversial order into effect Friday.

Many gun rights supporters say the backlash will include legal challenges. The governor said Friday she’s expecting that.

Republican state Sen. Greg Baca announced that party leaders are preparing a lawsuit to challenge the order, and the National Association for Gun Rights says it filed a lawsuit Saturday. They’re both arguing the temporary gun ban is illegal and unconstitutional.

KOB 4 spoke with UNM Law Professor Joshua Kastenberg. He says this a collision of authorities and rights.

On one hand he says the governor does have the authority to declare public health emergencies. However, he says Americans do have Second Amendment rights to have firearms.

Both of those are going head to head, and he says it’s a battle that will certainly play out in the courts.

“I’m sure that there are lawyers right now trying to defeat this before it gets out of the gates,” said Kastenberg. “It has facts, enough facts and data behind it to at least not have it dismissed outright in the courts. But I do suspect that there’s a strong chance that it will be if an attorney were to go and ask for an emergency appeal or an emergency stay that it would be granted.”

He says the New Mexico Constitution does allow the governor to make these decisions in an emergency and suggests the gun violence data presented in the order speaks for itself. But he says there are limitations.

“That’s not a blanket grant of power, because you have the Second Amendment in the other part of the equation that’s a fundamental right, under the Constitution,” Kastenberg said. “Their argument will be ‘I have a Second Amendment right to possess these, I have a Second Amendment right to carry them from point A to point B, and I have a Second Amendment right to protect myself, and I don’t have a criminal record, so this is an unconstitutional infringement on my rights.’” 

Kastenberg predicts any legal battles will likely play out in federal district courts. He says it’s possible the case could make it to the U.S. Supreme Court, but added the clock is already ticking.

“If nobody challenges this for an emergency stay against its implementation, then by the time the court issued a decision, the 30 days would come and go,” said Kastenberg. 

On Friday, the governor said she believes no constitutional right is absolute.

“There are restrictions on free speech, there are restrictions on my freedoms,” Gov. Michelle Lujan Grisham said during a news conference Friday.

Kastenberg agrees there are restrictions to the Second Amendment, but says it’s still a gray area. He noted the U.S. Supreme Court recently struck down a New York law that would’ve required people show a special need to carry a gun in public.

“The New York Legislature had a similar argument. ‘We’re trying to stop mass murderers. We’re trying to stop violence against children.’ And it’s all reasonable, except that the way the Constitution is being interpreted now by five or more of the justices, it’s not reasonable, because it’s an unconstitutional encroachment on a fundamental right,” Kastenberg said. 

Kastenberg expects a major showdown in the court of public opinion, but says it’s up to a judge to decide what happens next.

“When people have said, and you know, argued in the blogs and the like ‘This is tyranny, this is a dictatorship.’ No, it’s not. It’s something that’s going to end up in the courts, though, and it’s likely to have the governor, the governor is likely to have her orders stricken down,” said Kastenberg.  

Kastenberg expects we’ll see a flurry of legal activity come Monday morning, and he believes the nation is watching the state very closely right now.

He suspects if the governor’s temporary gun ban is upheld, and it does reduce gun violence, other states could follow.