New Mexico Firearm Preemption

New Mexico Firearm Preemption

New Mexico is one of the strongest preemption states in the country, and the preemption rule sits in the state constitution itself rather than in an ordinary statute. The practical effect is that cities and counties have almost no authority to write their own gun laws. The state legislature sets firearm policy for the whole state.

Constitutional Preemption: N.M. Const. art. II, Section 6

The controlling text is N.M. Const. art. II, Section 6 (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."

Two parts of this provision matter for preemption:

• The first sentence protects the right to keep and bear arms but expressly does not protect the carrying of concealed weapons. That is why New Mexico requires a license to carry concealed, while open carry of a loaded firearm by a person who may lawfully possess one is generally allowed without a license.
• The second sentence is the preemption clause. It bars any municipality or county from regulating "in any way" an incident of the right to keep and bear arms.

The right-to-bear-arms language was added by amendment effective November 2, 1971, and the preemption sentence was added by amendment effective November 2, 1986. (Source: N.M. Const. art. II, Section 6, "As amended November 2, 1971 and November 2, 1986.")

Scope of the Preemption Clause

The phrase "regulate, in any way, an incident of the right to keep and bear arms" is broad. By its plain terms it stops municipalities and counties from enacting local gun ordinances. In practice that means a city or county generally may not:

• Require local registration or licensing of firearms;
• Create its own permit to carry, open or concealed, on top of state law;
• Impose local waiting periods or background-check rules beyond state law;
• Ban specific firearms, magazines, or ammunition by ordinance;
• Add local restrictions on the private sale or transfer of firearms.

The preemption clause runs against municipalities and counties. It does not limit the state legislature, which retains full authority to regulate firearms subject only to the federal and state constitutions. So a restriction that a city could not adopt may still exist as a matter of state statute (for example, the place restrictions in the Concealed Handgun Carry Act and in Chapter 30, Article 7 NMSA 1978).

How Concealed Carry Fits the Preemption Picture

New Mexico does not allow permitless concealed carry. The base rule is in NMSA 1978 Section 30-7-2 (Unlawful carrying of a deadly weapon). Subsection A makes it an offense to carry a concealed loaded firearm "anywhere," except in listed situations, including:

• In your own residence or on real property you own, lease, rent, or are licensed to use (Section 30-7-2(A)(1));
• In a private automobile or other private conveyance for lawful protection of person or property (Section 30-7-2(A)(2));
• By a person holding a valid concealed handgun license issued by the Department of Public Safety under the Concealed Handgun Carry Act (Section 30-7-2(A)(5)).

Unlawful carrying of a deadly weapon under Section 30-7-2 is a petty misdemeanor (Section 30-7-2(C)). Subsection B confirms that nothing in Section 30-7-2 prevents carrying an unloaded firearm, which is consistent with the constitution's protection of open, nonconcealed carry.

The Concealed Handgun Carry Act is the statewide license framework. It is codified at NMSA 1978 Chapter 29, Article 19 and may be cited as the "Concealed Handgun Carry Act" (Section 29-19-1). The New Mexico Supreme Court has held that the Act does not violate art. II, Section 6 and that it "does no more than add another exception to the general prohibition against carrying concealed weapons" under Section 30-7-2. See State ex rel. N.M. Voices for Children, Inc. v. Denko, 2004-NMSC-011.

Because the license framework is a state statute administered by the Department of Public Safety, and because the constitution bars local regulation of an incident of the right to keep and bear arms, a city or county cannot create its own competing concealed-carry permit.

What Is Not Preempted

Preemption limits ordinance-making power. It does not erase other bodies of law that restrict where you may carry. The following are not displaced by art. II, Section 6:

• State statutory place restrictions. The legislature, not a city or county, sets these. Examples include the courthouse rule in NMSA 1978 Section 29-19-11 (a concealed handgun license is not valid in a courthouse or court facility unless the presiding judicial officer authorizes it) and the school-premises and other restrictions in Chapter 30, Article 7 NMSA 1978.
• Private property rights. A private property owner may forbid firearms on the owner's property. The Concealed Handgun Carry Act rules expressly provide authority for a private property owner to disallow the carrying of a concealed handgun on the owner's property (NMSA 1978 Section 29-19-12(C)). Ignoring a valid no-firearms instruction or posting can expose a carrier to criminal trespass under NMSA 1978 Section 30-14-1. Criminal trespass is a misdemeanor (Section 30-14-1(E)).
• Government control of its own property. A government entity managing its own buildings stands in a different posture than a city legislating for the public at large. A person who knowingly enters or remains on land owned, operated, or controlled by the state or a political subdivision after consent has been denied or withdrawn by the custodian can be charged with criminal trespass under NMSA 1978 Section 30-14-1(C).

Municipal Power Generally

The general grant of municipal authority in NMSA 1978 Section 3-18-1 (General powers) lists a municipality's corporate and police powers, such as the power to preserve peace and order and to protect property and inhabitants. It does not grant authority to regulate the right to keep and bear arms, and any attempt to use general police power for that purpose runs into the constitutional preemption clause. A municipality is a creature of statute and has only the powers the legislature gives it.

Federal Law Is Separate

State preemption controls the relationship between New Mexico and its cities and counties. It has no effect on federal law, which applies on its own terms nationwide:

• 18 U.S.C. 922 lists federal unlawful acts, including the categories of people barred from possessing firearms (felons, certain domestic-violence offenders, unlawful drug users, and others). These bars apply regardless of any New Mexico license.
• 18 U.S.C. 930 makes it a federal offense to knowingly possess a firearm or other dangerous weapon in a federal facility, with a separate and more serious offense for a federal court facility. A New Mexico concealed handgun license does not authorize carry in a federal facility.

State preemption does not displace these federal restrictions, and a New Mexico license does not override them.

Practical Compliance

• If a city or county ordinance appears to regulate firearm possession or carry beyond state law, it is likely unenforceable under N.M. Const. art. II, Section 6. The state legislature, not the local government, sets firearm policy.
• State statutory place restrictions still apply. Watch for courthouses and court facilities (Section 29-19-11) and the place restrictions in Chapter 30, Article 7 NMSA 1978.
• Honor private-property no-firearms instructions and postings. A property owner's authority to bar concealed carry is recognized in the Concealed Handgun Carry Act rules (Section 29-19-12(C)), and entering or remaining after notice can be criminal trespass under Section 30-14-1.
• If you believe you were cited under a preempted local ordinance, comply at the scene, document the citation and the ordinance text, and consult counsel about a challenge rather than arguing the law on the spot.
• Federal facilities are governed by federal law (18 U.S.C. 930), and a state license does not authorize carry there.

Statutes and Authorities Cited

• N.M. Const. art. II, Section 6 - right to bear arms and the local preemption clause.
• NMSA 1978 Section 29-19-1 - short title, "Concealed Handgun Carry Act."
• NMSA 1978 Section 29-19-11 - concealed handgun license not valid in a courthouse or court facility absent judicial authorization.
• NMSA 1978 Section 29-19-12 - rules administered by the Department of Public Safety, including private property owner authority to disallow concealed carry, and reciprocity with other states.
• NMSA 1978 Section 30-7-2 - unlawful carrying of a deadly weapon; concealed-carry exceptions, including CHL holders; petty misdemeanor.
• NMSA 1978 Section 30-14-1 - criminal trespass.
• NMSA 1978 Section 3-18-1 - general powers of municipalities.
• 18 U.S.C. 922 - federal unlawful acts and prohibited-person categories.
• 18 U.S.C. 930 - possession of firearms in federal facilities.