Guns have been a part of the culture of our place since the first Spaniards came to the new world, before there was New Mexico, and before there was a nation with a Constitution. Guns came alongside the saw and the plow in the hands of European immigrants. They used guns to hunt food and to fight the native Indians for land and water. That was then.
What do guns mean to us now in contemporary society? With many different perspectives, how do we make sense of the cacophony of urgent voices? And they are, indeed, urgent. Few topics elicit the emotions that so often accompany a discussion of guns.
This is the first of a three-part series exploring the issue of second amendment sanctuaries and gun control laws in New Mexico.
The Legislature this year, in Senate Bill 8, defined a gun as a “weapon that … is designed … to expel a projectile by the action of an explosion… and includes any handgun, rifle or shotgun.”
That same bill, signed by Gov. Michele Lujan-Grisham on March 8, establishing the legal requirement to conduct a background check when any person sells any gun to another person, will be effective July 1.
A federal law requiring background checks of purchasers of guns from licensed dealers has been in place since 1998.
The Independent will look at the various reactions to the law and to the recent efforts to establish what has been called “second amendment sanctuaries,” that is, counties and municipalities that in some fashion seek to affirm a right provided by the U.S. Constitution.
The second amendment states, in toto, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Torrance County recently passed a resolution “declaring Torrance County to be a second amendment sanctuary county.” At a town council meeting in Edgewood last week, a group of more than 100 voiced similar requests. Meanwhile Mountainair took a different course on the advice of its attorney.
A resolution passed by a county or municipality does not carry the weight of law, but expresses, according to Webster’s Unabridged Dictionary, “a formal expression of opinion, or intent.”
Of the 33 counties in New Mexico, 25 have passed a resolution stating in some way that they uphold the second amendment without restriction. The counties with the three largest cities, Santa Fe, Bernalillo and Doña Ana, have not.
With the Legislature in session, The Independent spoke at the Roundhouse with legislators representing the East Mountains.
Sen. James White, representing district 19, said, “I support the second amendment,” adding, “I don’t think the people’s voices are being heard. When counties and cities are being more vocal about it, I think that helps us get the message to the governor that the second amendment shouldn’t be more restricted than it is right now.”
Regarding SB8, White said, “Me and every republican … voted against it. They’re making everybody register whenever they transfer a firearm from anybody to anybody. They have to do a background check and register.”
SB8 contains no provision for registering a gun.
White said background checks “only affect people who are going to abide by the law.”
Regarding enforcement of the new law, White said, “Law enforcement is supposed to enforce laws, but on the other hand they have priorities and they can decide what they want to do and what they don’t do.”
“I don’t think felons ought to have weapons,” White said. “I think farmers need to have weapons, ranchers should have weapons, hobbyists can have weapons,” he said, adding, “My general opinion is to protect the second amendment rights of the people.”
The Independent caught up with Rep. Matthew McQueen, representing district 50, between a floor session and committee meeting.
Speaking about SB8, McQueen said it “closes loopholes in our existing background check system,” adding, “I’m confident that’s constitutional.”
“The more alarming thing is,” McQueen continued, “we have local jurisdictions across the state … implying they’re not going to enforce the law, and it’s their job to enforce the law. If they have an issue with the law, they need to go to court and challenge it. … That’s how our system works. It’s not just local officials deciding they’re not going to enforce duly passed state laws.”
McQueen, who voted for SB8 said, “People have been clamoring for us to close the gun show loophole and close the internet loophole, that’s what that bill does,” adding, “It’s a background check bill.”
Asked about the creation of a registry of all guns, McQueen said, “We already have a background check system, [and] we don’t have a registry of all guns.”
“This is applying to private sales not just gun dealers,” McQueen explained. “There are a lot of gun sales that happen over the internet. ‘Do you want to buy my gun? Okay. I don’t know who you are. We’re going to meet in the parking lot of Walmart. You give me the cash, I’ll give you the gun.’ This captures those transactions,” he said.
Regarding recent public comments at an Edgewood town council meeting supporting second amendment sanctuaries, McQueen said, “I’m hopeful that action is delayed until after the session,” he said, adding, “I think overall, the public at large supports background checks.”
Rep. Gregg Schmedes, representing district 22, said, “What I’m hearing from law enforcement is they’re concerned that all the firearm-related legislation … is unenforceable, saying, ‘We cannot enforce these laws.’ That’s the clearest message that I’ve heard from law enforcement.”
“I have heard from Albuquerque [law enforcement] as well as the Santa Fe sheriff who are supportive of … this legislation, but they have not described how the laws are enforceable which remains a concern to me,” Schmedes said.
Speaking about “second amendment sanctuary counties,” Schmedes said such resolutions have been passed, in some cases, with approval of Democrats and Republicans, in support of their sheriffs.
“It is my understanding that the sheriff is supposed to enforce the law,” Schmedes continued, “and if a sheriff feels like enforcing the law is unconstitutional … they have the ability to make a call … for what’s right or wrong for their county.”
“We have sanctuary cities and sanctuary states in regard to immigration,” Schmedes said, “and now we’re seeing in New Mexico sanctuary counties and sanctuary cities as it relates to the second amendment.”
Schmedes continued, “The similarity that I see is that there are local groups of people who feel like there are laws that are endangering folks, that are constitutionally wrong or morally wrong. When I see that type of divisiveness, I think the solution is to still keep the conversation going, to back off a little bit and reach some sort of better solution,” he said. “It shows me that our governmental entities are not communicating as well as they should with the public, on both issues,” he added.
“The reason I have expressed opposition to SB8 is because [it] only applies to law abiding gun owners,” Schmedes said. “Criminals make decisions based on the risk of getting caught … not the existence of the law.”
Schmedes went on to say, “No one is saying background checks are bad, no one is saying we need to be giving guns to felons, no one is saying that we need to be giving guns to people convicted of domestic violence; those are good laws, yet they’re taking guns away from people.”
SB8 does not provide for taking guns away from anyone but restricts the acquisition of guns by those who meet the criteria of the federal background check law.
“No one is saying the second amendment is an absolute right. If this was going to reduce crime, reduce gun violence or save lives you wouldn’t have opposition to it,” Schmedes said.
The Independent spoke with Randy Autio, city attorney for the town of Edgewood, and other government bodies; his firm represents Mountainair.
“A resolution, which is what’s being proposed across the state in various counties, is not law,” Autio said. “If a community wants to pass a law, they do it through an ordinance.” He said a resolution is generally considered as guidance.
“The problem with it is it’s inherently politically risky because it may be motivated by a particular group of the community without the consensus of the entire community,” Autio said. “Some counties have passed [resolutions] as opposition to proposed legislation and other counties have attached this sanctuary county notion that the sheriff is not going to enforce any laws that he believes is contrary to the United States constitution and the second amendment.”
“That gets more problematic from a legal perspective,” he said. “Only the state, in New Mexico, can legislate in regard to firearms. There’s a specific state law saying that local entities may not pass any regulations concerning weapons.”
Such selective enforcement of laws could result in a lawsuit, Autio said. “It would put the municipality or county in a very bad position if they said they weren’t going to enforce particular state laws because they would be acting outside of the state law.”
Regarding the determination of constitutionality of a law, Autio said, “That is left to the courts, that is our process,” adding, “It is left to people challenging it who believe that it is unconstitutional to test the law.”
Regarding the infringement of the second amendment by background check laws, Autio said, “For sure there’s going to be a hard argument for anyone challenging a background check law because that is one of the places the courts have routinely allowed an incursion … into second amendment rights because it isn’t limiting access to a gun, it is just regulating it.”
A recent challenge in the state of Washington to their Initiative 594, similar to New Mexico’s SB8, was heard in the 9thU. S. Circuit Court of Appeals. An October 2017 ruling unanimously upheld that law.
He continued, “Like most rights, there is no absolute,” he said, adding, “Everything is a matter of a spectrum of what the actual behavior is,” citing the classic example that free speech doesn’t allow shouting “fire” in a crowded theater.
Regarding a recent resolution in Torrance County, Autio said, “I would interpret that to mean that there would have been a decision by a court that the firearms law was unconstitutional before it applied, because I do not believe that a sheriff nor any individual within a county can decide for themselves the constitutionality of any law passed by the New Mexico legislature.”
“We are a system created to have a balance of power in government and the Legislature is checked by the courts to determine constitutionality and citizens fearing their rights have been interfered with [can] challenge those laws in court,” Autio said.
The second part of this series will present a range of perspectives on these issues from law enforcement and from within the community.