It will be interesting to see how this all turns out. We have some councilors and a mayor who apparently believe that they are much bigger fish than they are.
My councilor sent me a copy of a letter that was written to him by a person who I believe is an attorney. I have removed the name of the author from this, but this is a verbatim copy otherwise.
To: Corrales Village Mayor and Councilors
From: XXXXXXXXXXXXX: Village Resident
Subject: Proposed Resolution Banning Open Carry of Firearms on Village Property on the August 14, 2012 Council Agenda
I am sending each of you my thoughts on the proposed Resolution because 3 minutes is not enough time to explain why this resolution is not only a violation of the state constitution and laws, but also a very bad idea. I don’t think any of you should be put in the position of having to vote on this resolution without the chance to understand why this proposal should be defeated. This e-mail also puts you on notice of legal liabilities if you pass this Resolution.
I don’t know what legal analysis you have been provided. I am not giving you a legal analysis as the question is not that hard to figure out. Consider this:
Section 6 of the New Mexico Constitution states:
RIGHT TO BEAR ARMS
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms. (Emphasis added)
Now that is very clear. Case law which I assume your lawyer has provided you makes it even clearer that this language means exactly what it says.
How can anyone say that this proposed resolution does not violate the state constitution?
This resolution is also a very bad idea regardless of its illegality.
Because a few paranoid people have an irrational fear of firearms Pandora’s Box has been opened.
In doing so, attention has been given to people who have an agenda of confrontation. That is their right, but ignoring the exercise of their right to open carry could have avoided some confrontations. Merely carrying a gun openly is not a crime or a threat but confronting those who do simply inflames a side show. It is now too late to let sleeping dogs lie. But the best way out of this drama is to recognize the rights people have to free speech and to carry firearms, and to gracefully move on without any more ill advised confrontations.
I understand that this is not being proposed as an ordinance. Therefore, it may be argued that this is not a regulation of the right to keep and bear arms. I find this argument specious.
The Municipal league states that the difference between a resolution and an ordinance is that a resolution “does not have the force of law…” but is instead a “formal declaration of the governing body concerning a certain subject which it cannot or does not wish to control by ordinance” The language of the so called proposed resolution actually prohibits and by application makes criminal the open carrying of firearms on village property. This still boils down to regulating, unconstitutionally and illegally, the open carry rights guaranteed by the New Mexico Constitution.
This resolution seems to be an ordinance cloaked in a façade of a resolution. In so doing it denies the public the right of three hearings and their input required for any ordinance. Why is this ordinance cloaked as a resolution?
This so called resolution actually proclaims prohibited conduct. Such prohibitions then become laws the violations of which ultimately lead to criminal arrests. It is wrong to propose this newly created criminal conduct as a mere resolution when it will operate as an ordinance making otherwise constitutionally protected actions illegal.
A regulation of the right to keep and bear arms which prohibits otherwise protected conduct is by any other name still unconstitutional.
In addition, the ‘Whereas’ clauses either state the obvious without supporting the proposed regulation or state facts that are not true.
The fourth ‘Whereas’ states the fact that the right is not absolute and can be regulated but misses the point that the regulation cannot be done by this body. It can only be done by the state legislature for the entire state. Furthermore such regulation must have some compelling state interest and public good or welfare to overcome the right to keep and bear arms. In this case the irrational fears of a person do not provide a rational reason to regulate this right.
The fifth ‘Whereas’ regarding the right to post lands ignores the fact that this applies to private, not public lands. Access cannot be denied to public lands when that access is guaranteed by the constitution. Access cannot be denied to people on the basis of race, or color. Nor can access be denied to someone who openly carries a firearm in compliance with state law and constitutional rights. This premise is fundamentally flawed.
The sixth ‘Whereas’ is legally insufficient. I would even say it is irrelevant. As pointed out by Mr. Ron Reder in a letter in the Corrales comment, …“I think it is well over the line for government to limit innocent, law abiding citizens rights just to make other people feel more comfortable; to assuage their irrational fears.” I could not say this any better.
The next ‘Whereas’ recounts a so called incident to which I say, so what? The mere sight of a firearm in a holster being carried may cause apprehension to some people but that apprehension is irrational. If a firearm is worn by a plainclothes officer unknown as an officer to the viewer is it any more fearful than one worn by a law abiding citizen? Irrational fears do not get to rule this world or this village.
The next ‘Whereas’ declares this regulation does not interfere with exercising constitutional rights. Many beg to differ The law is not on the villages side.. This resolution recognizes the right of concealed carry license holder’s to carry on Corrales property while denying that right to those who carry openly. But, the right belongs to everybody, equally.
This resolution creates two classes of citizens based on the same exercise of a constitutional right. This resolution criminalizes one who carries openly but approves of and acknowledges the rights of those who carry concealed. There is no rational basis for this distinction.
The next ‘Whereas’ is unsupported. How in the world is this attempted prohibition against open carry of firearms on Corrales property necessary for the public safety? No facts are presented for this inflammatory claim. The mentioned incidents do not rise to that level, especially considering how they became inflamed.
The only conduct that is said to be a threat to public safety is that some paranoid people will become irrationally afraid if they see a gun carried in a holster. This is not a public safety issue. That may be a mental health issue.
Under paragraph 2 c this resolution actually changes and limits rights already guaranteed by state law. The resolution will prohibit keeping a loaded firearm in a person’s vehicle. However, consider NMSA1978 chapter 30, article 7, Section 2:
“Unlawful carrying of a deadly weapon.
A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm… anywhere, except in the following cases:
… in a private automobile or other private means of conveyance for lawful protection of the persons or another’s property.”
Once again this resolution rewrites and fundamentally changes state law in an obvious violation of existing rights.
Finally this resolution purports to give the village power to put up signs prohibiting firearms on public property contrary to state law. If these prohibitions are illegal or unconstitutional then the village can’t post illegal signs. Isn’t this going to set up our police into making unlawful arrests?
The people of this village cherish all of their constitutional rights. There are principals to be upheld. Whether 10 or 20 come to speak, a very diverse group of people is being stirred up. They will consume time and energy and invoke passion and disagreements. This will take time away from other more meaningful discussions.
If this resolution passes there will be substantial opposition in the community as a matter of principal.
Individuals and organizations like the NRA and the Gun Owners of America can take legal action. I have it on good authority that they are already looking at this situation. A regional rep of the NRA is planning on attending the council meeting.
They can sue civilly before anyone gets arrested. They can sue when anyone gets arrested. Those who get arrested can also sue not only to have their charges dismissed but also for damages for illegal arrest.
Why are we going to incur these great expenses? Isn’t this a waste of time, energy and a whole lot of money?
A few weeks ago I spoke in favor of the half mill tax increase. I did so to provide much needed and earned raises for the village police, fire, roads, maintenance and clerical people in our village. I did not support these taxes so this council can waste money on substantial legal fees on an issue that is limited to and driven by irrational paranoids or antagonistic individuals. Someone has to be the adult here.
How much tax payer money has already been consumed in drafting this resolution? How much more money will be wasted fighting the many lawsuits and legal challenges. How much will the village have to pay for damages for illegal arrests? And even if no damages are awarded against us, how much will it cost to just defend these suits?
And all this expense is for what? These expenses are because somebody is irrationally afraid of the sight of a firearm legally carried. Won’t these people be just as irrationally fearful at the sight of a citizen walking down the street carrying a gun, but are not in a public park? Is the village next going to attempt to prohibit legal open carry on the streets because the streets are public village property? Where does this madness end? End it now.
Enough time and energy has been wasted on this matter. As a matter of law, and as a matter of what is right, and in good common sense, you need to vote this resolution down.
As a citizen of this village I feel a duty to share my observations. I urge this village to not stray down this acrimonious and meaningless path. I share these observations in hopes that sanity will prevail and the lid for Pandora’s Box can be found and returned to its proper place.
I do not ask for any reply to these comments. I fear that if I discuss this with several councilors before the meeting, and inadvertently pass on a councilors view, I may improperly facilitate a rolling quorum.