Did Governor Grisham Violate the Constitution?

In case you missed it, last week New Mexico Governor Michelle Lujan Grisham issued an executive order making it illegal for citizens to carry firearms in public–both open and concealed carry–for 30 days in Albuquerque and the surrounding county.

She called it a response to a “public health” emergency.

The “Constitutional conservatives” went nuts.

How dare she violate the 2nd Amendment!

In fact, a resident of Albuquerque quickly filed a lawsuit in federal court challenging the order.

Politicos on both the left and the right called the move unconstitutional, though a few openly admitted they knew it would eventually get thrown out in federal court. This was a matter of principle and an effort to stimulate conversation.

Grisham did indeed violate the Constitution.

But not the U.S. Constitution.

And her edict should never have been challenged in federal court.

Here’s why.

The 2nd Amendment folks don’t understand that the Bill of Rights as ratified only applied to the general or federal government, not the States.

Everyone knew this, even John Marshall who said as much in the majority opinion in Barron v. Baltimore in 1833.

This was the only thing Marshall ever got right.

Madison even proposed an “incorporation amendment” to Congress as part of the proposed Bill of Rights.

It was explicitly rejected.

Very few men in the founding generation wanted a federal negative of State law. John Rutledge said that alone would damn the Constitution in the 1787 Philadelphia Convention.

Every time it was proposed, it failed.

Marshall created one by “judicial review” in 1821, but it was not related to a Bill of Rights issue.

But the nationalists kept pressing,

In 1868, the Republicans illegally ratified the 14th Amendment.

Attempts to insist that it “incorporated” the Bill of Rights, meaning that the first nine amendments applied to the States, were rejected time and again, most explicitly by the Supreme Court in 1873 by a Republican controlled Supreme Court.

That all changed in the 20th century because of Hugo Black, the progressive jurist from Alabama.

Black made a great ahistorical discovery that the founding generation really wanted the Bill of Rights to apply to the States but never got their way.

Black rode to the rescue.

Over the next half century, the first eight amendments to the Constitution would be “incorporated” by the Supreme Court, history be damned.

This is why all of these “Constitutional conservatives” cried foul.

Yet, as Raoul Berger conclusively proved, the 14th Amendment was never designed to incorporate anything. This is a fabrication, and a dangerous one for those who supposedly believe in limited government.

If the States are mere administrative subdivisions of the general government, liberty is gone.

Now, Grisham’s decree is unconstitutional according to the New Mexico State Constitution.

It violates the State Bill of Rights according to the New Mexico Supreme Court.

Grisham correctly pointed out to her leftist colleagues that this was indeed a State rather than federal issue, but she omitted that she did not have the power to issue such an order, particularly when her legal justification was a fifty year old law made for public health emergencies like a viral pandemic.

This law is illegal and unconstitutional.

It would be great if American “conservatives” really believed in federalism. This whole thing could have been thrown out in New Mexico without appealing to our federal overlords.

I discuss the issue on Episode 876 of The Brion McClanahan Show.