Publication Date
12-1-2024
Abstract
For many decades, gun control advocates, hoping to shift the terms of the debate to more favorable terrain, have argued that gun violence should be viewed primarily through the lens of public health. In September 2023, New Mexico Governor Michelle Lujan Grisham and New Mexico Secretary of Health Patrick Allen pushed that rationale to its extreme and beyond. Under the auspices of the state’s public health emergency laws, they issued an executive order and agency directive that effectively eliminated the right of ordinary citizens to bear arms in public in the state’s most populous county. That attempt to circumvent the Second Amendment by wrapping itself in the flag of a public health emergency suffers from a host of statutory and constitutional defects. In the ongoing battle to reframe gun violence as a public health emergency, the governor’s order offers litigants and courts an important opportunity to start unveiling any new and hoped-for national tradition of restricting Second Amendment rights based on the declaration of a public emergency—health or otherwise. In the end, loose applications of Bruen’s history-based test might offer governments in times of acute crisis, widespread disorder, and violent crime a fair—but not unlimited—amount of authority to impose temporary albeit severe restrictions on core aspects of the right to bear arms in public. But whatever the outcome might be in other cases, not even these loose applications of historical analogues would be sufficient to save Governor Grisham’s order and her secretary’s directive from a Second Amendment challenge.
First Page
327
Recommended Citation
Amy Swearer & Paul J. Larkin, Public Health Emergencies and the Second Amendment, 102 Denv. L. Rev. 327 (Winter 2025).