This reasoning is twisted on its face. The affected right exists specifically to help people defend themselves. Yet Lujan Grisham says increased threats of bodily harm eliminates the means that residents would use to protect their safety. Talk about Orwellian logic.
Her rationale is so tortured that even allies have condemned it. Bernalillo County Sheriff John Allen, a Democrat, would be tasked with enforcing her order, but has stated that he won’t do so because it’s unconstitutional. Other Democratic leaders in the state, including Attorney General Raúl Torrez, joined the sheriff in refusing to cooperate. Even national gun-control advocate David Hogg, who survived the 2018 mass shooting at Marjory Stoneman Douglas High School in Florida, has said the order violates the Constitution. When you’ve lost Hogg, you know you’ve lost your case.
None of this should have surprised the governor. The court’s decision in Bruen was unmistakable. It surely angered many Democrats, but respect for the rule of law demands officeholders follow even the most controversial rulings. Imagine the outcry if Alabama’s Republican governor proclaimed that her state would not follow the court’s ruling legalizing same-sex marriage. Or if a pro-life governor in the Roe v. Wade era tried to suspend a woman’s right to an abortion on the grounds that dropping birthrates created a public emergency.
Lujan Grisham, during an interview with CNN on Tuesday, dismissed arguments that her order is unconstitutional by deploying typical talking points among gun control activists. “I’m focused on everyone’s constitutional rights, not just those the [National Rifle Association] says I should be focused on,” she said.
The governor is no dummy. She has held appointed or elected office for nearly 20 years. She couldn’t possibly be so naive to think her order would be uncontroversial even among Democrats.
So what was the real intention behind her order? It could be that, like many ambitious politicians, she simply wants attention. She was said to have been on President Biden’s shortlist when he was deciding on his vice-presidential pick. Perhaps with Biden’s low approval ratings, she decided this is a good moment to raise her national profile. In that sense, she has succeeded wildly, even if her order loses in court.
But Lujan Grisham could be playing an even longer game than that. Democrats remain furious that a conservative-dominated Supreme Court is likely to strike down progressive rulings in the coming years. That means Democratic officeholders in deep-blue states will have to enforce rulings they deeply resent or hate.
Perhaps this is why she is focusing so much on the public health rationale of her order. State and local officeholders must uphold federal statutes and Supreme Court rulings under the Constitution’s supremacy clause. They cannot simply openly reject a ruling they do not like and refuse to implement it, as Southern states furious at school desegregation learned in the 1950s.
But states and localities do have constitutional authority to make decisions to protect the health and safety of their residents. That’s why governors were on the front lines of lockdowns and social-distancing measures during the coronavirus pandemic; only they and their legislatures had the legal authority to institute mandatory public health measures.
This means there is a theoretical conflict between a state’s constitutional authority to protect its citizens and the federal government’s authority to enforce rights guaranteed by the Constitution. This conflict came up frequently during the pandemic, especially in cases involving public health orders that limited the size and nature of religious services. Perhaps Lujan Grisham is using her order to show her party how to use this conflict to undermine Supreme Court decisions they disagree with.
Time will tell whether Lujan Grisham’s order is just another failed effort at political signaling or the start of a much more serious challenge to the Supreme Court’s authority. Either way, the constitutional rights of her state’s residents will suffer.
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