New Mexico’s ban on carrying guns in public is yet another threat to the rule of law

There is a creeping lawlessness in American politics.

There have always been people who break laws, but lately, the trend has been ambivalence toward the rule of law itself. Gov. Michelle Lujan Grisham’s order to ban gun possession in public in New Mexico last week is the most extreme example yet, but it is part of a larger theme.

Keeping people safe — Lujan Grishamʼs stated goal with the gun ban — is a worthy cause. But even if you believe this policy will be effective (and I think it will not), tearing down the rule of law to do it will cause more harm than good.

Our founders built a system that was inspired by Enlightenment ideals. They knew that people were ambitious and emotional, but they hoped that the structures of the new government would temper those feelings, or else redirect them to positive ends. The separation of powers was their main way of doing this. Dividing power, they reasoned, meant that each branch would resist the encroachments of the others. Ambition would counteract ambition.

There are always people who chafe at the rule of law. Prideful and convinced of their own righteousness, they seek to bring about change in less democratic, more chaotic ways. They think they are justified because they are working toward a “good cause,” but this is why we need neutral principles — principles grounded in law rather than in personal beliefs — because, after all, everybody believes they are on the side of good. When individuals try to skirt the law in this way, we call it civil disobedience. When governments do it, it is tyranny.

In 2019, then-candidate Kamala Harris promised action on gun control — with or without Congress. “If they [Congress] fail to do it,” she said, “then I will take executive action.” Harris knows there is no “they took too long” clause in the Constitution. If there were, it would make the legislature superfluous and turn any president into a dictator. She said it anyway.

Once, that lack of respect for the rule of law would have rendered a candidate unelectable, but Joe Biden selected her as his vice president anyway. For all the talk of Biden’s normalcy, he and his predecessor shared a disdain for laws that restricted their power and ambition. Donald Trump tried to unilaterally divert funds from what Congress appropriated to what he wanted: a wall on the Mexican border. Biden went one better and tried to spend money Congress had not delegated for any purpose when he tried to forgive student loans.

These actions were all outside the law. That doesn’t feel lawless in the same way storming the U.S. Capitol or burning a police car does, but the principle (or lack thereof) is the same. It’s one person saying, “I’m right, they’re wrong, and I’m going to do whatever I want.”

Lujan Grisham went far beyond Trump’s, Biden’s, and Harris’ lawlessness when she decreed that people in her state’s most populous county would be banned from carrying guns in public, even if they had a license. Her justification for this was that violence in New Mexico cities constituted a statewide public health emergency, so the law and the Constitution no longer applied.

Civil libertarians warned during the pandemic that if we set a precedent that executive orders could override basic liberties, future governments would do it again whenever they wanted. Well, the pandemic has barely ended and one governor is already doing it. Many will not care because it does not involve any rights that they care about. But as with any assertion of executive power, we must ask ourselves, “Is this a power I’d like to see in the hands of my opponents?”

Even if there was no Second Amendment, even if New Mexico’s state constitution did not protect the right to bear arms, it would be a grave abuse of power for the governor to take this action without any law giving her that power.

This is the idea at the heart of liberal democracy: principles must be neutral. If it’s fine for Michelle Lujan Grisham to pick which laws she will ignore, then it’s fine for Ron DeSantis, Greg Abbott, or any other governor to do the same. And we would have 50 dictators, not 50 governors.

This is the idea at the heart of liberal democracy: principles must be neutral.

New Mexico Republicans opposed Lujan Grisham’s act, which was so lawless that many of her fellow Democrats have condemned it as well. New Mexico’s attorney general, Raúl Torrez, told Lujan Grisham that he did not think the order “will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster.” Some state legislators said the same. U.S. District Court Judge David Urias, a Biden appointee, blocked the order from being enforced until hearings on its constitutionality can happen.

The system held — for now. Legislators, judges, and other executives pushed back against this power grab. But each elected official’s attempt to move from law to lawlessness makes tyranny seem a little more normal. Each time they get away with it is a signal to the next executive that there will be no punishment for violating the Constitution.