State governments and enumerated rights

I am a federalist, and I am a conservative. As a federalist, I believe the U.S. Constitution defines roles for both federal and state governments, but as a conservative, I believe that the federal government often oversteps its boundaries and infringes on the rights of the states. This usually occurs through an overbroad interpretation of the Commerce Clause of the U.S. Constitution, which grants Congress the authority to regulate interstate commerce. A prime example is the Supreme Court decision in Gonzales v. Raich. Despite California's legalization of medical marijuana, the Court ruled that Congress could criminalize its production and use, even if the activity remained wholly within California's borders.

Yet, sometimes it's not the federal government but the states who overstep these bounds. This past week New Mexico Gov. Michelle Lujan Grisham unilaterally issued an order suspending the right to bear arms in public in Albuquerque (and the surrounding Bernalillo County) for at least 30 days. Grisham, a Democrat, issued the order in response to recent shootings in the Albuquerque metro area. Under the order, even those with valid New Mexico Concealed Handgun Licenses will be prohibited from carrying weapons in the county.

The right to keep and bear arms is defined in the Second Amendment to the U.S. Constitution. Part of the Bill of Rights, the Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

In District of Columbia v. Heller (2008), and further reinforced in New York state Rifle and Pistol Association Inc. v. Bruen (2022), the Supreme Court solidified the understanding that the Second Amendment guarantees the individual right to keep and bear arms, irrespective of one's participation in a well-regulated militia. It's vital to emphasize that the Second Amendment does not grant the right to keep and bear arms; rather, it recognizes and protects it. The inherent right to self-defense exists independently of any legal document. The Bill of Rights, however, makes it explicit by enumerating the right to keep and bear arms among its protections.

In the Declaration of Independence we find the following words:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

The Declaration of Independence says the purpose of government is to secure for all men their unalienable rights. Life, Liberty, and the pursuit of Happiness are not the only rights the government is charged with securing. These three are among those rights but the list is not exhaustive. We, Americans, have also charged government with securing the enumerated rights of the Bill of Rights, including the right to keep and bear arms.

What Gov. Grisham is trying to do is take away one of the enumerated rights declared in the Bill of Rights. Even local law enforcement officials are uneasy about Grisham's actions. Albuquerque's chief of police, Harold Medina, has said that he will not enforce this order.

Bernalillo County sheriff, John Allen, said, “While I understand and appreciate the urgency, the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold, I am wary of placing my deputies in positions that could lead to civil liability conflicts, as well as the potential risks posed by prohibiting law-abiding citizens from their constitutional right to self-defense.”

Since local law enforcement will not enforce her unconstitutional ban, Grisham has announced that the New Mexico State Police will enforce the order.

Grisham justifies this action by taking a page from the COVID shutdown playbook. During COVID, governors across the nation (including here in Iowa) violated the First Amendment by limiting the free exercise of religion, and denying the right of the people peaceably to assemble. Using the same logic, Grisham issued this unconstitutional order, suspending the Second Amendment, calling it “an emergency public health order.”

If our rights can be unilaterally suborned in the name of public health, are they rights at all?

David Chung is a Gazette editorial fellow. david.chung@thegazette.com