On March 3, 2020, New York’s legislature authorized Governor Cuomo to unilaterally suspend any law or issue any directive that was necessary to deal with the COVID-19 pandemic. Importantly, that authorization expired a year later, on April 30, 2021. Law-abiding gun owners in New York should probably be thankful for that expiration clause, since Governor Cuomo has since become the first Governor in the nation to declare a “gun violence disaster emergency” in the state on July 6, 2021.
Because the broad COVID-19 emergency authorization has expired, Governor Cuomo is relying instead on a more limited state law that allows him to temporarily suspend other laws, if doing so would help him address a disaster declared by the state. Importantly, this authority comes with more limits than the COVID-19 authorization. While the Governor may temporarily suspend laws, he may not issue directives. Additionally, the suspension of any laws must be more targeted to safeguard the health and welfare of the public, and impose less of a deviation from existing law than was required under the COVID-19 authorization.
Perhaps these limitations are why Governor Cuomo’s executive order does not impose any new restrictions on gun owners in the state. Rather, the executive order suspends certain restrictions in the state’s finance laws in order to allow the Governor to direct money towards community efforts to reduce gun violence, and to enter into contracts and other written agreements meant to address gun violence.
Funding freed up under the executive order will be used to fund a variety of efforts. These efforts include community activity and summer jobs programs for at-risk youths, programs to track and provide resources to emerging gun violence hot spots, and a new state police unit to stop guns coming in from other states that are illegal under New York law. There are also initiatives meant to strengthen relationships between police and the communities they serve.
While Governor Cuomo is clearly proud of the boldness of his executive order, which he described as “the first-in-the-nation gun violence disaster emergency,” it does not come anywhere close to the brazen willingness to flout clearly established law that was exhibited by a gun-related executive order issued by Jackson Mayor Lumumba on April 25, 2020.
Mayor Lumumba’s order purported to “suspend” the right to openly carry a firearm in the City of Jackson, despite the fact that the Mississippi Constitution explicitly protects the right to open carry, and declares that the right to openly carry cannot even be regulated in our state. While the executive order invoked the COVID-19 pandemic as its justification, it did not claim that the order would reduce the transmission of COVID-19 or that gun violence that had occurred during the pandemic was caused by people exercising their right to openly carry firearms.
MCPP’s legal arm, the Mississippi Justice Institute, filed a lawsuit against Mayor Lumumba two days after he issued the executive order. The lawsuit argued that Mayor Lumumba’s order violated the Mississippi Constitution, the U.S. Constitution, and various state laws. Six weeks later, a federal court entered an order which permanently banned the City of Jackson or any of its officials from ever again issuing an order restricting the right to openly carry firearms, and provided for contempt of court proceedings against any city officials who violate the court order.
Regardless of the differences between the executive orders in New York and Jackson, one thing is clear: our executive branch officials need to stop governing by emergency. Routine public policy issues should not be decided unilaterally by dressing them up as “emergencies.” Whether emergency powers are invoked to build a border wall that Congress will not fund, or to ban guns in a state committed to gun rights, those actions erode the Rule of Law and eliminate the normal give and take that is supposed to occur in a democratic republic made up of a diverse people with many different priorities, beliefs, and values.
Even if those lofty ideals were not enough, practical concerns should dictate the same response. If we cheer on government officials who exceed their legitimate power to pursue our preferred policy outcomes, we have no recourse when other officials similarly abuse their powers for ends we disapprove of. The only way to prevent such abuses is to limit government power, no matter who is currently in charge.
Some claim that we are too polarized to govern effectively using our normal democratic processes, but our country has been through worse. We experienced deep divisions during the eras of the Founding, Reconstruction, McCarthyism, Civil Rights, and the Vietnam War, just to name a few. That we are experiencing deep divisions again today is no reason to throw away our precious inheritance of constitutionally limited government.