When Governor Lujan Grisham of New Mexico issued “a public health emergency order” that purportedly suspended the right to bear arms at Albuquerque and surrounding Bernalillo County last week, her justification was seemingly straightforward. “I have emergency powers,” she told the New York Times. “Gun violence is an epidemic. Therefore, it’s an emergency.”

Ms. Lujan Grisham’s stunt was widely condemned as blatantly unconstitutional, even by some leading supporters of gun control. [A federal judge on Wednesday blocked part of her order.] Yet her legal rationale also underlined the perils posed by the sweeping emergency powers that legislators in many states have granted governors — a problem that was abundantly clear during the Covid pandemic.

The governor laid the ground for her ban on public possession of operable firearms last Thursday, when she declared that gun violence in New Mexico “constitutes a statewide public health emergency of unknown duration” under the state’s Public Health Emergency Response Act. That law defines a “public health emergency” as “an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm.”

Ms. Lujan Grisham also invoked New Mexico’s All Hazard Emergency Management Act, saying gun violence “constitutes a man-made disaster causing or threatening widespread physical or economic harm that is beyond local control.” In her gun order, which she issued the next day, Ms. Lujan Grisham asserted that violent crime is also “a condition of public health importance,” which New Mexico’s Public Health Act defines as “an infection, a disease, a syndrome, a symptom, an injury or other threat that is identifiable on an individual or community level and can reasonably be expected to lead to adverse health effects in the community.”

Those labels were meant to trigger the “emergency powers” that Ms. Lujan Grisham is claiming. The All Hazard Emergency Management Act, for example, says the governor may issue “necessary orders” to carry out its provisions, and it specifically authorizes 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.”

Ms. Lujan Grisham relied heavily on these laws during the pandemic, when she issued many scientifically dubious edicts. In November 2020, for example, she banned outdoor activities and required New Mexicans to wear masks whenever they left their homes, which she said they should not do “unless it’s an emergency or for an essential need like food and water.” 

Unlike gun violence, Covid was an epidemic. Yet Ms. Lujan Grisham thinks both threats empower her to act like a dictator for however long she deems necessary. She repeatedly renewed her Covid emergency orders, and she is threatening to do the same with her gun decree, which initially lasts for 30 days but can be renewed indefinitely.

It seems unlikely that the persistent, omnipresent threat of violent crime constitutes the sort of “emergency” that New Mexico legislators had in mind. Yet the more important point, repeatedly confirmed by state and federal courts, is that even properly defined emergencies do not nullify constitutional rights.

Two gun rights groups immediately challenged Ms. Lujan Grisham’s order in federal court, noting that it defies last year’s Supreme Court decision upholding the Second Amendment right to possess guns in public for self-defense. The Albuquerque Police Chief, Harold Medina, and the Bernalillo County Sheriff, John Allen, said they would not enforce the order, and two Republican state legislators said it was grounds for impeachment.

“I support gun safety laws,” Representative Ted Lieu said, but Ms. Lujan Grisham’s order “violates the U.S. Constitution,” and “there is no such thing as a state public health emergency exception to the U.S. Constitution.” Gun control activist David Hogg concurred.

Ms. Lujan Grisham admitted that her order was unlikely to pass legal muster and, even if it did, would not affect the behavior of criminals. Yet if it encourages legislators to reconsider the wisdom of letting governors rule by decree based on open-ended emergencies that they themselves declare, it will have served a useful purpose.

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