Gunning for Trouble

By Nick Catoggio

Monday, September 11, 2023

 

On an episode of The Remnant last week, Jonah Goldberg and Tom Nichols had a friendly argument.

 

Why is it, Jonah asked, that a subset of anti-Trump conservatives have embraced the Democratic agenda whole cloth? Nicolle Wallace, Jennifer Rubin—you know the type. They made their names as right-wingers yet now side with liberals so reliably in any dispute with the GOP as to be indistinguishable from the “Resistance” leftists they’re aligned with.

 

Nichols isn’t part of that group (he wrote critically of Joe Biden’s preposterous student debt forgiveness plan, he reminded Jonah) but he’s a fellow traveler insofar as he’s committed to voting for Biden over Trump next year. The threat Trump poses to America’s institutions is so dire, Nicholas reasoned, that as a patriot he has no choice but to support the one party capable of defeating it.

 

Okay, Jonah replied, but why not use the leverage you’ve gained as a member of the Democratic coalition to drag it toward the center? If anti-Trump conservatives still prefer right-wing policies on balance to left-wing ones, they should press their new party to adopt some of those policies as it evolves.

 

I don’t recall Nichols answering that objection directly, but there is an answer. The more concessions center-right Biden voters extract from the White House, the greater the risk that members of the progressive base will balk and stay home next year. Perhaps that’s wrong; a Manchin-esque Biden might earn more votes in the middle than he loses on his flank. But it’s a momentous gamble. And a moderate Democratic coalition that ends up losing to Donald Trump would … not be a good outcome for anti-Trump conservatives.

 

At the root of the disagreement between the two was this question: Is there anything Democrats could plausibly do that would risk the support of the Wallaces, Rubins, and Nicholses? Or do liberals now have carte blanche to enact their agenda without fear of losing votes from Never Trump conservatives?

 

Nichols can speak for himself, but I think there’s an answer to that too. Policy disputes between the left and the anti-Trump right must be set aside until the authoritarian threat has passed. But if Democrats started behaving in a glaringly authoritarian manner themselves, the logic for preferring them to Trump’s Republican Party would begin to collapse.

 

If you’re going to be the Party of Norms, you have to, you know, be the party of norms.

 

I was thinking about that this weekend when news broke that New Mexico’s Democratic governor, Michelle Lujan Grisham, has become a dictator.

 

On one very contentious issue, at least.

 

***

 

If I were a soulless anti-anti-Trumper forever grasping for new ways to justify supporting Republicans, this is where I’d announce that Grisham’s power grab has sadly left me no choice but to withdraw my support from Biden and vote for Donald Trump next year.

 

Because I’m a Never Trumper, I’m able to retain some moral perspective. One Democratic governor’s civic failure doesn’t quite balance the scales with a coup attempt, two impeachments, four indictments, and a deepening enchantment with illiberalism across the American right.

 

But Grisham did fail spectacularly here. And she’s been so comically villainous about it that I find myself wondering if there’s some ulterior motive that I can’t sniff out.

 

On Friday, she announced a 30-day ban on carrying firearms in public areas and on state property in Albuquerque and its surrounding county. New Mexico has seen a number of horrendous shootings recently that left children dead—a 5-year-old while she was sleeping, an 11-year-old outside a baseball stadium, a 13-year-old shot by her 14-year-old friend.

 

No more, the governor declared. From now on, anytime a county averages more than 1,000 violent crimes per 100,000 residents—plus a certain number of hospital visits for gunshot wounds—a 30-day moratorium on gun possession in public spaces will take effect. Which law grants her the power to institute such a rule, you might ask?

 

The law of Because I Said So, That’s Why. Better known as “emergency powers.”

If you missed the exchange at the end, Grisham was asked point blank whether she believes her royal decree will stop criminals from carrying guns in public places in Albuquerque—the only reason a policy like this might conceivably be justified. “No,” she replied. She’s just hoping to send a “message.” Or something.

 

Conservatives have spent decades insisting that if guns are outlawed, only outlaws will have guns. It’s weird to find a liberal agreeing with them, let alone agreeing with them while trying to justify a policy of outlawing guns.

 

The breezily cavalier tone in which she invoked her “emergency” authority as a trump card against constitutional rights also played like bad satire. There is, after all, no more notorious rationale for abuses of power historically than public safety. Authoritarians love “emergencies” precisely because they’re arbitrarily defined, allowing their scope and duration to be extended as needed. The state of “emergency” in Egypt that began in 1958, for instance, continued almost without interruption until—no joke—2011.

 

Go figure that Grisham has already begun to hint that her own order might expand. In an interview with the New York Times this weekend, she warned that her 30-day ban on carrying guns in Bernalillo County could last longer than 30 days—and that there might be more restrictions to come. “We’ll make adjustments, and I intend to make Albuquerque the safest place in America,” the governor said. “It’s a tall order, and I am on it.”

 

Given how effective gun control has been at reducing crime in some of America’s other violent cities, the Albuquerque state of emergency might also last 53 years.

 

The one thing Grisham got right is that no constitutional right is absolute. Even the First Amendment has its exceptions, as our friends at Fox News were recently reminded. In fact, when the Supreme Court finally recognized an individual right to bear arms under the Second Amendment in 2008, the majority took pains to clarify up front that the right isn’t unlimited. It extends to “weapons in common use,” for one thing, but not to “dangerous and unusual weapons.”

 

To say that no right is absolute, however, is different from saying that the executive branch is the one who should define its scope. That would be silly, tantamount to letting police decide whether a confession was coerced or having a prosecutor decide whether a defendant got a fair trial. If you believe in checks and balances—and you reeeeeally should if your local executive has started babbling about “emergency powers”—then you want the branch that’s most insulated from popular passions deciding when a person’s rights can and can’t be taken away.

 

It was just last year that the Supreme Court decided in the Bruen case that the Second Amendment protects the right to carry a gun in public, at least outside of “sensitive places.” That makes Grisham’s “emergency powers” order so likely to be found unconstitutional that the Democratic district attorney of Bernalillo County, appointed by the governor herself, says he won’t enforce it. Neither will the mayor and police chief of Albuquerque.

 

So why did she bother announcing it? What was the point?

 

***

 

I think Noah Rothman is right in identifying this as part of a trend among Democratic officials over the past decade or so of introducing dubiously legal policies in the belief that there’s no political downside to doing so. If the policy is challenged and you win in court, great. You won! If the policy is challenged and you lose, no sweat. You fought the good fight and will receive credit from your base for having done so. As an added bonus, the anger those voters will feel toward the (probably) conservative court decision can be harnessed to boost liberal turnout in the next election.

 

Examples include Barack Obama’s amnesty for DREAMers under the DACA program, Joe Biden’s questionable extension of Donald Trump’s COVID-era eviction moratorium, and the aforementioned preposterous student debt forgiveness gambit. Influential Democrats (including Obama and Biden themselves) initially acknowledged all three programs as exceeding a president’s constitutional authority before later changing their minds, Aaron Blake correctly notes. Their thinking seems to have been that if “emergencies” persist without solution for a long enough period of time, especially if they do so as a result of Republican obstruction, Democratic executives gain some sort of extra-legal moral right to advance solutions unilaterally.

 

By no means is that logic limited to guns, as Rothman notes:

 

Lujan Grisham did not invent the public-health rationale for muscling unconstitutional initiatives into force; she merely applied in practice the logic to which her progressive allies are prone.

 

Earlier this year, the Biden administration explored the prospects for providing resources to abortion seekers in states with more restrictive abortion regimes by declaring a public-health emergency. Also this year, the Biden White House established the Office of Climate Change and Health Equity within the Department of Health and Human Services, a program designed to operationalize the notion that Title VI of the Civil Rights Act authorizes the federal government to treat “environmental justice [as] a public health issue.” Racism isn’t just a “public health crisis” in the estimation of the medical professionals who insisted as much during the long, hot summer of 2020. Its downstream effects measured in “maternal mortality and other health inequities” also constitute “a public health crisis,” according to the administration, Democratic lawmakers, and much of the medical establishment.

 

One law professor framed Grisham’s order to the Associated Press as an attempt to, and I quote, “move the debate.” What she meant by that scrupulously dry phrasing was that the governor was grumpy that the legislature wasn’t doing more to address gun violence in New Mexico and decided to try to prod them into action … by squelching a constitutional right. In America 2023, authoritarian power grabs are just “conversation-starters.”

 

This morning one of my Dispatch editors suggested that Biden might manufacture a “Sister Souljah moment” by publicly rebuking Grisham in hopes of endearing himself to centrists, but the trend described by Rothman suggests that might do more harm than good. Democrats have grown fond of this “emergency” nonsense, and I suspect most of their voters would be sympathetic to a member of the party who erred on the side of doing too much to try to limit gun violence rather than too little. One New Mexican anti-gun activist praised the governor’s order on grounds that “if it saves one life, then it’s worth doing,” a false and even pernicious sentiment given the sort of power abuses it might logically unleash—but probably not uncommon among Democrats.

 

A “Sistah Souljah moment” might, then, make Biden enemies on the left without any guarantee of earning him any new friends on the right. (How much Republican support has the president’s push to fund the police won him?) Which, again, would be suboptimal if your fondest political wish is seeing Trump defeated next fall.

 

But.

 

A strange and fascinating thing happened on social media this weekend after Grisham’s policy made waves: A few prominent gun-control voices got squeamish.

 

There was Rep. Ted Lieu:

And activist David Hogg:

And Ryan Busse, a senior adviser to Gabby Giffords’ organization:

In my years of writing about politics, I can’t recall a similar case of progressives pushing back against an aggressive new gun restriction by an official in their party. “Bold action” is usually the coin of the realm. Something appears to have changed.

 

What is it?

 

***

 

Maybe, like Busse, they’re thinking strategically. My editor isn’t crazy to wonder whether centrist voters might recoil from Grisham’s order, blatantly unconstitutional as it is. If they do, the governor will have given the anti-gun movement a black eye. Perhaps Lieu, Hogg, and Busse are borrowing a page from Gavin Newsom in thinking that if major change is ever to come to American gun laws, it’ll need maximum procedural legitimacy to stick.

 

Or maybe the three take the Constitution seriously enough that they earnestly believe it limits government power even when the government is acting in a cause they find virtuous. (If so, that would place them in a distinct national minority.) Grisham is making it easy for them, frankly, by being such a laughably terrible advocate in her own cause.

 

The governor is the chief law enforcement officer in the state. She has “jurisdiction” over all state laws. If her “jurisdiction” entitles her to limit constitutional rights with respect to guns, it entitles her to limit any other right as “emergencies” might require. She’s transparently trying to grant herself authority to trample on basic freedoms.

 

There may be something else to Lieu et al.’s apprehension, though.

 

As a certain would-be autocrat runs away with the Republican primary and looks no worse than a 50/50 shot to regain the presidency, some members of the Party of Norms might be more sensitive than usual to flagrant violations of norms by their own side like the one Grisham is guilty of.

 

It’s probably no coincidence, in fact, that the most prominent tweet this weekend in support of her executive order came not from a liberal but from one of the populist culture warriors at The Daily Wire.

That may seem confounding at first blush—right-wingers for gun-grabbing?—but it isn’t. Michael Knowles recognizes, and plainly relishes, that the logic of the governor’s attack on individual rights is a precedent post-liberal MAGA authoritarians can and will use in the future. “To natcons, the idea of limiting state power is mostly a farce, and politics is about using any means to impose your own values on others,” former Rep. Justin Amash correctly observed about Knowles’ tweet. If you worry about Trump 2.0, the very last thing you should want to see mainstreamed in American politics is the idea of constitutional rights being suspended “temporarily” due to some ill-defined “emergency.”

 

Knowles plays the long game. Lieu, Hogg, and Busse might be playing it too. The rest of us should be playing it as well, and that includes gun-rights supporters. After all, the ominous quote about seizing guns without due process highlighted by Max Nordau in the tweet I posted up above doesn’t come from Michelle Lujan Grisham. It comes from Donald Trump.