imported post
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
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