Last week, the governor of New Mexico confronted what she claimed was a health crisis, and her solution was to deny law-abiding folks the right to bear arms.
The health crisis she identified was an uptick in the murder rate in the city of Albuquerque. And her solution was to turn off the personal liberty of all persons there.
She purported to do this by issuing an executive decree that prescribed the penalties for doing what was perfectly lawful the day before the decree — openly carrying a registered handgun.
She did this notwithstanding the expressly guaranteed right in the U.S. Constitution to keep and bear arms, notwithstanding the Supreme Court's most recent interpretations of the constitutional guarantee, notwithstanding the natural right to self-defense and notwithstanding comparable guarantees in the New Mexico Constitution and laws.
Stated differently, the governor took the law into her own hands and defied and perverted it. Can this possibly be legal? In a word: No.
Here is the backstory.
In 1939, the Supreme Court heard an appeal in U.S. v. Miller, a case in which the defendant had been convicted of carrying a rifle across state lines that was too short, according to federal statutes. The statutes were based on the power of Congress to regulate commerce between the states.
Even though Miller was not engaged in commercial activity, and even though no lawyer appeared or presented an argument for him in the Supreme Court, the court upheld his conviction.
From and after that case, the feds and the states began aggressively regulating the possession, sale and movement of weapons.
The big-government types in both political parties regularly either enacted laws or gave the power to bureaucrats to promulgate and enforce regulations that severely impaired the right to keep and bear arms. Their view was that their governments would keep them safe, so why does anyone need arms?
This attitude prevailed until 2008, when a retired District of Columbia police officer applied for a permit to own and possess a handgun in his own home, and his application was denied.
The Supreme Court reversed that denial, and an opinion called District of Columbia v. Heller, authored by the late Justice Antonin Scalia, held that the right to keep and bear arms is personal and pre-political; meaning, it is possessed by individual persons and it does not derive from the government. It is the modern mechanical extension of the natural right to self-defense.
Justice Scalia reasoned that the Second Amendment does not grant the right to keep and bear arms; rather, it restrains the government from interfering with it.
As if to defy the Supreme Court, liberal states, begrudgingly recognizing the right to own a gun, made it nearly impossible to carry or use a gun, since Heller only addressed ownership and use in one's home.
Then, last year, the Supreme Court addressed the issue of carrying guns in public places. In an opinion written by Justice Clarence Thomas, the court overruled Miller and reaffirmed Heller, and ruled for the first time that the Second Amendment means today what it meant to those who wrote and ratified it in 1791.
Thus, the original public understanding of the right to keep and bear arms — which is the right to use guns to protect life, liberty and property from bad guys and tyrants — is the governing principle of all gun laws today.
Add to this the basic constitutional principle of the separation of powers, and one can easily see just how wrong and dangerous the behavior of the Governor of New Mexico is. Under the separation of powers, only the legislature can write laws, and only the executive can enforce them, and only the judiciary can say what they mean.
Since governors are in the executive branch, they are not constitutionally competent to write laws; they can only enforce those that the legislature has already written. Thus, when the Supreme Court has defined the right to keep and bear arms as a personal, individual, natural right, no gubernatorial decree can interfere with it.
What about emergencies? The Supreme Court has also ruled consistently that there are no emergency exceptions to the fundamental rights guaranteed from infringement in the Bill of Rights.
Moreover, the governor of New Mexico has violated federal law by issuing her decree. Federal civil rights laws expressly prohibit all government officials from using government power to infringe upon individual fundamental liberties.
But there is more here about which to be weary.
Many of us who monitor the government's lack of fidelity to constitutional norms firmly believe that its so-called lockdowns and other mandates, issued under the guise of health regulations three years ago, were profoundly unconstitutional.
All violated the separation of powers, as these unlawful commands were issued by governors and bureaucrats, not enacted by legislatures. And all infringed upon natural human rights, like worship, speech, assembly and travel, none of which can be impaired without proving fault or guilt at a jury trial.
Surely, the governor of New Mexico knows this. She has taken an oath to preserve, protect and defend the U.S. Constitution and the Constitution of New Mexico.
Her oaths are to the values underlying government, not just to the pieces of paper on which those values are articulated. The values that she violated — perhaps as a dry run for future gubernatorial aberrations — recognize that our rights are natural to our humanity. As such they cannot be interfered with by a decree or even by a popular majority.
Paraphrasing John Stuart Mill, because modern-day self-defense is a natural right, if all America but one were of the view that self-defense by guns is unlawful, the government would no more be justified in seizing the guns of the one than would he, if he had the power, be justified in seizing the guns of the government.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitano's Reports — More Here.
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