On Friday, September 8, 2023, the governor of New Mexico, Michelle Lujan Grisham, unilaterally and unconstitutionally ordered that open and licensed concealed carry of firearms was banned in all counties above a certain threshold of violent crime. A U.S. District Court judge quickly blocked her order with a temporary restraining order, but the safe money is on the governor getting away with this attempt to curtail the liberties of the people of New Mexico with no personal consequences.
However, personal consequences absolutely should be on the table for such a blatant attempt at imposing tyranny on the people. In the same way that “ignorance of the law is no excuse” for citizens, this sort of government overreach must result in punishment, or such attempts will continue until some sympathetic court decides one is justified, and then that result will be used to justify further infringements by selective application of stare decisis.
The State and Federal Constitutions are the supreme law of the land. Any laws passed in contradiction to them are void–not when some court decides they are void, but immediately. Both the State of New Mexico’s Constitution and the United States Constitution recognize a right of the people to keep and bear arms. This right has been gradually chipped away over the last hundred years, but in the last fifteen, there have been three major Supreme Court cases: Heller, McDonald, and Bruen, that have clawed back a little bit of that usurpation.
Specifically, the right to keep and bear arms in self-defense has generally been fairly well-protected in New Mexico. Open carry is generally legal, and concealed carry is permitted, although requiring an unconstitutional license. The governor’s order punishes peaceful people and restricts their rights based on statistics unrelated to their actions, a clear violation of the principle of innocence until proof of guilt. If the governor is permitted to make such an order without repercussions, what stops her from trying to create similar orders violating other rights guaranteed by the Constitutions? Nothing.
The governor of New Mexico, and any other politician who acts in this way, must face consequences for their attempt to violate the rights of peaceful people. Anything less allows the ratchet of tyranny to abrogate all of our freedoms, one court-approved click at a time. Mere impeachment is a weak response. In fact, 18 U.S. Code Section 242 makes Deprivation of Rights Under Color of Law a criminal act, and that is exactly what the governor did. That law calls for a fine or imprisonment for up to one year. I also note that the mildest punishment at Nuremberg was a sentence to ten years imprisonment. That is not too harsh a punishment for attempting to disarm peaceful people.
In a just world, every such question would be cut and dried. These politicians would have no power beyond what their followers agreed to. In the real world, these documents that none of us agreed to are constantly reinterpreted and their meanings are shifted gradually. Therefore, in the interest of fairness, I propose three principles to guide when criminal punishment for politicians who overstep their bounds is appropriate.
First, the action must be in opposition to well-established constitutional or legal norms. This includes the curtailment of clearly guaranteed rights and actions which go against the letter of the constitution. Therefore, an order limiting free speech rights would qualify, but the imposition of a punitive tariff would not. An order calling for warrants without probable cause would qualify, but an absurdly high pay raise for Representatives would not (as long as it takes effect after the next election). This limitation allows for the possibility of good-faith misinterpretations of the law.
Second, the action must clearly not address the problem it is intended to address. In the New Mexico case, Grisham herself admitted that criminals would not follow the order. Therefore, by her own admission, the people disarmed by her order are those who are not committing violent crimes. In fact, disarming peaceful people makes them more vulnerable to predation by violent criminals. The action does not serve its intended purpose, and that means it is tyranny for tyranny’s sake, not a good-faith attempt to address a real problem. An example that would not qualify is imposition of a tax to pay for road improvements, as long as the funds gathered from the tax are earmarked for those road improvements.
Third, the response to the action must be prompt and clear. The people must immediately recognize and declare the acts to be unlawful. This is to prevent gradual cultural shifts from allowing opposing political groups to jail their opponents for policies they enacted in good faith and with general acceptance by the public in the distant past. For example, if the aforementioned road tax existed for a decade without protest and the culture shifted to one that preferred a different solution, those politicians who enacted the road tax would not be open to prosecution, even if the public suddenly became vehemently opposed to road taxes after accepting them for ten years.
I must emphasize that these three principles are more lenient that I would personally like. I would prefer to see would-be tyrants punished harshly and immediately by the people acting in justifiable self-defense. The just and moral response to a demand for your arms is to supply the bullets first, at several hundred feet per second or faster, the laws being the tyrant’s will. These principles offer politicians a great deal of wiggle room to avoid punishment, but this wiggle room seems appropriate for a Constitutional Republic to deal with good-faith mistakes, reasonable misinterpretations, and well-intentioned but flawed ideas.
However, these principles are a huge step forward from the status quo, in which politicians believe they can propose whatever tyrannical legislation and executive orders they desire with absolute impunity. By applying these three principles and making it clear that such actions will be punished, we can break the ratchet of tyranny and reverse the gradual erosion of our rights.