ALBUQUERQUE, N.M. (KRQE) – A day after a federal judge temporarily blocked enforcement of the governor’s ban on open and concealed carry in Bernalillo County, UNM Law Professor Joshua Kastenberg gave News 13 a better idea of why the judge made his decision, and the governor’s fight moving forward.
Kastenberg said what the judge is telegraphing with the temporary restraining order (TRO) is that it’s very doubtful the courts will side with the governor on this issue. “The substance of the order is very unlikely to be upheld in the courts on a constitutional basis. But the court did not rule whether the governor actually had the authority to issue such an order,” Kastenberg said.
Kastenberg said gun advocates had two things to prove to get the TRO: one, that they’re likely to suffer harm from the inability to do something that is protected by the constitution; and two, that the order likely wouldn’t hold up in court.
In the order granting the TRO, Judge David Urias noted there are ‘important safety concerns’ in the Albuquerque area. However, he also states the way the governor went about fixing the issue conflicts with the constitution. “It was important to explain that even though there is this problem, the means that the governor sought to curtail it simply not tenable under the structure of our federal constitution,” Kastenberg said.
Kastenberg said the order does not address one important question, however: whether or not the governor had the power to do this in the first place. “One thing this court doesn’t answer is whether the governor exceeded her authority or not under the New Mexico State Constitution. Judge Urias is a federal judge and he stayed away from that interpretation as you’d expect a U.S. District Court Judge who’s vested really to deal with federal matters would do.”
“No one should take this decision as the governor can’t act unilaterally. It’s just that the governor can’t act unilaterally when it comes to the Second Amendment,” Kastenberg said.
The best way forward for the governor? Kastenberg says that would be for her to turn to the legislature for help. “The next best move among many that could be done is to go to our state legislature and say ‘look, I can’t do this on my own, and it’s gotta stop. We have kids getting killed in the streets.'”
Kastenberg said the success of this in the end may be getting citizens to demand the legislature do something. “I think that moving ahead is the best answer because you know at the end of the day the federal courts and this includes the Supreme Court at least has to give deference to a democratic process…Rather than an anti-democratic process of a governor just unilaterally issuing a decree.”
“And maybe the success that our governor has out of this is getting the legislature to do something, getting citizens to demand that the legislature does something,” Kastenberg said.
The next step for this case will be a preliminary injunction motion hearing at the federal court on October 3.
