Update: On September 13, a federal judge blocked part of New Mexico’s public health order. District Judge David Urias, an appointee of President Joe Biden, granted a temporary restraining order putting the ban on public carry in Albuquerque and Bernalillo County on hold until a hearing is held in October. The rest of the public health order remains intact.

On September 7, New Mexico Governor Michelle Lujan Grisham declared gun violence a public health emergency, a step that several governors have taken in recent years. But Lujan Grisham and her cabinet took the declaration a step further the next day, when they ordered a 30-day ban on carrying firearms on public and state property in the state’s most populous city, Albuquerque, and surrounding Bernalillo County.

The gun carry ban, which is largely but not entirely without precedent, was immediately met with pushback from Republicans and gun rights advocates — and even some Democrats and gun reform proponents, who said it violated the Constitution.

There is some limited evidence that such an approach could curtail gun violence. More permissive concealed carry laws are associated with higher rates of gun violence, according to the RAND Corporation, which conducted a comprehensive meta-analysis of gun violence research. But there hasn’t been an opportunity for researchers to study the effects of prohibiting public carry altogether, since the approach is new. 

But the more immediate question is whether the temporary gun carry ban is enforceable and likely to survive court challenges. Lujan Grisham expected lawsuits — and gun rights groups filed two within 24 hours of the announcement. 

Here’s our guide to what exactly the order does and how likely it is to be upheld. And if this won’t work, what might?

What does the emergency order do?

In addition to banning gun carry on public and state property in Albuquerque and Bernalillo County for 30 days, the emergency order requires the New Mexico Department of Health to compile a report on firearm-related emergency room admissions in the state; orders the state licensing department to conduct monthly state inspections of licensed gun dealers; and provides a free trigger lock for every gun owner.

“The time for standard measures has passed,” Lujan Grisham said in a statement. “And when New Mexicans are afraid to be in crowds, to take their kids to school, to leave a baseball game — when their very right to exist is threatened by the prospect of violence at every turn — something is very wrong.”

Those who violate the gun carry ban could face civil penalties and fines up to $5,000. But the ban, which took effect immediately, is to be enforced by state police, Lujan Grisham said. And so far they don’t seem to be doing it: Armed gun rights advocates held a rally in Albuquerque on Sunday, and police did not cite anyone for publicly carrying guns.

What prompted the order?

The governor cited the recent shooting deaths of young children in Albuquerque: an 11-year-old boy killed outside a minor league baseball stadium on September 6; a 5-year-old girl killed while sleeping in her home on August 13; and a 13-year-old girl killed in the village of Questa on July 28. She also cited two mass shootings: a May 15 rampage in Farmington that left 3 dead and 6 wounded, and a May 27 shootout tied to a motorcycle rally in Red River that left 3 dead and 4 wounded. Neither were in Bernalillo County.

New Mexico has long experienced some of the highest rates of gun violence in the country. It is the only state that’s in the top five for both gun homicide and gun suicide rates, according to the Centers for Disease Control and Prevention. And the state has had a rate of mass shootings higher than the national average over the last decade, according to a Trace analysis of Gun Violence Archive data. However, Albuquerque is among several cities that have seen a decline in fatal shootings in 2023, with homicides down roughly 18 percent so far this year.

Does the governor have the authority to temporarily suspend public carry?

Looking strictly at state law, the governor and her cabinet have the express authority to limit the public carry of firearms under a state of emergency. Under New Mexico’s longstanding All Hazard Emergency Management Act, the governor can prohibit “the possession of firearms or any other deadly weapon by a person in any place other than his place of residence or business” during a state of emergency.

State law, however, is not the only relevant authority. Courts will also look to the U.S. Constitution, which according to the Supreme Court in Bruen, holds that individuals have a right not only to possess firearms in their home, but carry them in public for self defense. While courts have in the past allowed for some limiting of constitutional rights during emergencies, it remains to be seen whether this strategy will work.

“You’re talking about the clash of a state power versus a federal right,” Maryam Ahranjani, a professor of law at the University of New Mexico School of Law, told The Trace. “We see those come into conflict with some regularity, and so there isn’t necessarily a 100 percent correct answer.”

There are other legal issues at play, including: What constitutes an emergency? The courts might not agree that gun violence does, and may not find that banning open carry balances individual rights with the need to protect the public during an emergency. Bruen says you can’t take public safety or government interest into account when weighing the constitutionality of gun laws. Instead, states need to show that the restriction has a historical analog — a similar law that is well-established in American history.

“It’s important that people know that they’re competing interests,” Ahranjani said. “None of our rights operate in a vacuum. They are limited within reasonable bounds and what those reasonable bounds are depends on the circumstances and who’s making the decision.”

There’s also the possibility that Lujan Grisham might have chosen to issue a bold policy simply as a way to push the debate forward.

“We’re having these conversations that we wouldn’t necessarily have had if this order hadn’t been executed,” Ahranjani said. “It has provided some opportunity for New Mexicans and others to become aware of the seriousness of the gravity of gun violence.”

Is there precedent for such an approach?

Lujan Grisham’s order isn’t entirely without precedent. In January 2020, then-Virginia Governor Ralph Northam declared a temporary state of emergency and banned guns on state Capitol grounds for four days ahead of a gun rights rally tied to the state’s annual “Lobby Day.” A court upheld the ban.

And in 2021, New York’s then-governor, Andrew Cuomo, declared gun violence a public health emergency and signed an executive order that directed $139 million towards gun violence intervention programs. The same year, Illinois Governor J.B. Pritzker declared gun violence a public health crisis, and pledged $250 million in investments in the hardest-hit communities. Neither emergency declaration attempted to limit the public carry of firearms.

How is the gun carry ban being received?

Gun rights groups quickly crafted legal challenges.

The National Association for Gun Rights and Gun Owners of America filed federal district court lawsuits on September 9, arguing that the carry ban doesn’t satisfy the test set forth in Bruen. Both groups are seeking a preliminary injunction to halt the order.

National gun reform groups have remained silent on the New Mexico order, which hasn’t been well-received by some gun violence prevention advocates. U.S. Representative Ted Lieu of California and Parkland survivor David Hogg, both ardent gun reform advocates, came out against it, each tweeting that the Constitution has no “public health emergency exception.” But a state gun reform group, New Mexicans to Prevent Gun Violence, tweeted in support of the carry ban.

Bernalillo County Sheriff John Allen called the ban “unconstitutional,” saying it “does nothing to curb gun violence.” Republican state Representatives Stefani Lord and John Block called for Lujan Grisham’s impeachment.

New Mexico state Senator Antoinette Sedillo Lopez, a Democrat who represents part of Bernalillo County, told The Trace: “The Governor moved the conversation along faster than it was moving. Now her order is in the hands of the judiciary.”

What other policies might work instead?

New Mexico could pursue other policies that are less controversial, have precedent in other states, and are more likely to be upheld as constitutional.

Universal crime gun tracing: A statewide requirement to trace all crime guns could go a long way toward understanding how guns get diverted into the criminal market and which gun stores might be responsible. As The Trace has previously reported, tracing is often the only way for law enforcement to identify the first legal owner of a firearm and who sold it, information that can connect the weapon to shooting suspects or trafficking rings. New Mexico, like most states, does not currently require law enforcement agencies to trace all crime guns. Fewer than a quarter of New Mexico’s nearly 150 law enforcement agencies participate in eTrace, a national system for tracking the provenance of crime guns, a rate far below the national average, according to a recent report by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Funding violence prevention: At least seven states have established Offices of Violence Prevention to serve as central hubs that further a public health approach to reducing gun violence. Among other things, these offices typically provide funding and support to community-based violence intervention programs. New Mexico hasn’t established such an office. And while New Mexico’s public health order contains $750,000 in emergency funding, the funding appears to be targeting law enforcement and local governments, not violence intervention programs.

Waiting periods: Ten states and the District of Columbia have required waiting periods that apply to at least some types of firearm purchases, ranging from 72 hours in Illinois to 14 days in Hawaii. Research has shown that waiting periods may reduce homicides and firearm suicides. New Mexico currently doesn’t have required waiting periods.