No guns in State Parks?

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Guns are prohibited in State Parks by NM Admin Code 19.5.2.20 (See at "http://www.nmcpr.state.nm.us/nmac/parts/title19/19.005.0002.htm".) What follows is my lay person summary and analysis of the code, its authority and why I believe that it exceeds the authority of the State Parks Division. (I am not an attorney.)

Then I have a question.

The statutory authority for this code is listed there as "NMSA 1978, Sections 9-1-5 (E) and 16-2-2 et seq." My understanding of this is that the State Parks Division has the authority to make these rules because of those sections of NM law.

Section 9-1-5(E) (See: "http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-h.htm&2.0") Basically says the secretary of each department shall create the rules necessary to carry out his/her duties and lays out the procedures that need to be followed.

Section 16-2 (See: "http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-h.htm&2.0") Is what creates the State Parks Division and says what it is supposed to do. It, of course has all kinds of stuff that have nothing to do with guns. Things like: park passes for disabled vets, concessions, contracts, vendors, conflict-of-interest, bonds, donations, taxes, construction and so on.

The two sections that mght have something to do with guns are: 16-2-30 "Police powers..." and 16-2-32 "Criminal offenses: penalty."

The Police Powers section (16-2-30) says that the parks division police will have general police powers in the park and police powers outside the park when under the direction of a "duly qualified full-time peace officer".

The Criminal offenses section (16-2-32) basically says that, other than as permitted by regulations, you cannnot: (A) vandalize trees or plants, (B) hunt, (C) fish, (D) vandalize signs or fences, (E) start fires, (F) place advertising or (G) violate a rule or regulation adopted by the secretary pursuant to the provisions of Chapter 16, Article 2.

So, the statutory authority does not give the State Parks Division (or the Secretary) any specific authority for regulating guns. The nearest it comes to doing so is when the law prohibits hunting that is not "approved" by regulation.

My analysis is that the NM Admin code 19.5.2.20 is overbroad and exceeds the statutory authority of the department. It also violates Article 2 Section 6 of the NM Constitution which says in full:

"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. (As amended November 2, 1971 and November 2, 1986.)"

So, first of all, the code violates the constitution when it prohibits open carry.

Second, it exceeds statutory authority when it prohibits concealed carry. If the legislature wants to prohibit concealed carry in state parks, it has the authority to do so. It has not. And it did not delegate any such authority to the State Parks Division or the Secretary of the Energy, Minerals and natural Resources Department.

It is possible that a regulation could be written that would not violate the constitution or exceed the statutory authority. For instance, it could create a presumption that a person is poaching if they have a firearm that is suitable only for hunting (such as a scoped, single-shot or bolt-action rifle). However, this regulation does not do any such thing.

NOW THE QUESTIONS: Has this been litigated in the New Mexico courts? Has there been any Attorney General opinion on the matter? An attorney friend of mine said that any citizen can request an opinion from the Attorney General if they believe that a regulation exceeds its authority. So, does anyone have any opinion on whether this should be pursued with an opinion from the Attorney General and possibly even litigation? Should this wait until after the election (hoping for a more sympathetic AG)? Should we go after this one, then go after the State Fairs regulation, and then go from there?

Note that a precedent on this might apply to things like guns in schools, open carry in restaurants, and so on, although schools would be partially covered by federal law and the restaurants, at least, would require invalidating a law and not a regulation.

Whatever the case, it seems like something to proceed cautiously on. If there is someone else who wants to jump on it and they think they have the intellectual firepower to do so, go right ahead. Otherwise, I'll probably proceed myself--after taking into account the suggestions of the smart, connected, and informed members on this board.

Thanks!


TheSavage

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Well, I haven't gotten any replies, so I guess I'll go ahead on my own. I'll write something up and run it past my friend. Then, I'll post it here and for a week or so before I send it off to the NM Attorney General.

I'm still open to suggestions, however.

TheSavage

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First, let me say I see no reason you shouldn't contact the AG for an opinion if that's your choice. At the same time, I don't see where the division has exceeded it's authority. The Admin Code you refer to is a public safety issue and as such, when it was created, it was required to be promulgated. If, like the majority of promulgation hearings I have attended relating to our firearms Statutes and Admin code, if the public simply failed to attend to object to the change at the time, the division was free to take whatever action they chose to.

The public shares a great level of responsibility in controlling what is legislated and what is set in Administrative Code. It is the public's responsibility to make their voices heard. The legislature, divisions and departments within the government of NM is wide open for the public to become involved and make their public officials respond to their wishes. You may not succeed in "getting your way" but when the government agencies take the time and spend the monies needed to have legislative sessions and hearings for the public to speak out - the public simply has to be there and do so or nothing changes from what the agencies decide.

A good example is the recent promulgation hearing in Santa Fe, regarding the change to the Concealed Carry Admin Code requested by Gov. Richardson. DPS was required to bring 6 people to Santa Fe, make a meeting hall available and hold a 2 hour hearing to approve or disapprove the change. Other than those of us that lobbied the change through our legislature, there was only a single gentleman that attended, and he didn't say one single word for the record - either for or against the change.

Apathy on the part of the public is the major problem we deal with. If public doesn't care enough to make their voices heard, then they simply take what agencies or the legislature gives them.

Having said all that - those of us working on improving the Concealed Carry/Firearms Statutes here DO have a list of issues we intend to bring to our legislature to attempt to improve the Statutes. State Park carry is one of those issues. However, we are working with a very liberal legislature. Those in powerful positions are opposed to most of the changes we want and have the power to "impede" our progress. Therefore, we have to pick and choose our battles carefully, and know when to back off one battle - to succeed with another that is more important. Unfortunately, State Park Carry is one of those battles we need to be careful of regarding when we attempt to change it. State Park Carry actually affects far fewer residents of NM than you think. Other areas of our Statutes and Admin Code affect far more residents of NM and have to take precedence in what we/when take up a challenge.

I appreciate your interest in effecting change in our Statutes and Code and would encourage you to proceed with an AG inquiry. Unlike working with the legislative process, there is nothing to lose with a public request for an AG opinion.

Steve Aikens

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Mr. Steve Aikens:

I have an inquiry..., Does New Mexican Statute trump New Mexican Administrative Code?

If so, does New Mexican Administrative Code derive its Authority from New Mexican Statute, or is this Authority conveied by a Department itself?

If not, does New Mexican Administrative Code have the force of Law, as does Statute, whereupon a Peace Officer can effect a full Arrest, or at least Tresspassing proceedings, under NMS 30-14-1?

Thank you,

aadvark

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Unfortunately, that's not just a simple question they way it is constructed.

The very simplest answer is the Legislature enacts Statutes.

Administrative agencies adopt, amend and repeal regulations [administrative codes] under the authority granted to them by statutes. It is not "connived" by any agency.

Administrative code is essentially expanded definition to specific laws/Statutes. It often clarifies what we refer to as "legislative intent" - however it always refers to a specific portion of a Statute that it derives it's power from.

The administrative code does carry the force of law, when it references the Statute it is defining.

Steve Aikens

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Steve,

Thank you for the reply. My main purpose in posting here was to avoid barging in on and hindering other work that might already be under way.

I understand your frustration with people who do not show up for the various public comment hearings and the help you could use on the legislative process. Mea culpa.

At the same time, it seems to me that if the government or some part of the government has exceeded its authority, it needs to be called on it--regardless of whether anyone from the public showed up or what anyone from the public said.

Finally, whether something might be "right" is different from whether it might be a good idea.

It seems to me that guns in State Parks is the "easy" one to go after first with this approach. The next one is guns at State Fairs--but that's going to be a more emotional issue, which may get attorneys and judges to rule regardless of the law or constitution. After that comes the various "criminal free-fire zones" (aka "gun-free zones") mandated by state law. So I suspect that these issues may come up. I think that I can deal with them while working the parks and fairs issues by saying that those have to do with laws passed by the legislature (and federal law), not administrative code. But any other ideas would be appreciated.

Thanks!

TheSavage

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Mr. Steve Aikens:

Thank you again for your reinteration of New Mexican Law.

I now understand that Administrative Codeis just an extension of Statute, based on 'Legislative Intent' inthe effort to clarify things that may otherwise be confusing.

Thank you,

aadvark

P.S.: ...Still, though, State Park Carry would be in the best interest of New Mexicans. I can imangine a circumstance, or two, involving Wild-Life that may be potentially dagerous to Humans. Coyotes and Rattlesnakes probably are a real threat in State Parks in New Mexico, especially in rural New Mexican Areas...

Guns aren't illegal in State Parks

The NMAC only prohibits loaded guns, and it defines loaded as having any cartridges in any part of the mechanism.

There are two ways to deal with the rule:

1. Carry openly with mags on your belt (or speedloaders for double-action revolvers) to quickly insert if necessary for defense. Most criminal types looking for trouble won't be able to determine that you are unloaded unless they are up close staring at the gun, and even then you can insert an empty mag to keep criminals guessing. This does really suck if all you have is a single-action revolver though.

Probably a good idea to have the statutes and admin. rules on hand in case an idiot ranger insists guns are illegal.

2. Carry concealed and unloaded. This approach is likely to have the least trouble from park rangers, as they'll never see the gun unless you have to use it. Good news is that a permit is not required if the gun is unloaded, and that makes you golden for state parks.

I'd like to see a rule change happen, but if past legislative changes are any indication, they'll only open up the state parks for loaded carry to CCW holders and not unlicensed open carriers.

It's sad that New Mexico doesn't abide by their constitution. It doesn't say anything about licensed liquor establishments, schools or universities, but they do it anyway. Part of the reason I moved to Arizona was better gun laws, but they still have a ways to go to be completely constitutional. It'd be nice to put these states' feet to the fire and make them abide by the law.