Preemption Statute

The police power of municipalities and counties in New Mexico is limited in the area of firearms regulation. Article II, § 6 of the Constitution of New Mexico, which provides citizens of New Mexico with the right to bear arms, was amended in 1986 to include the following: “No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.”

Exception

Local governments, have the authority to regulate “the location and construction of sport shooting ranges after July 1, 2002.”¹

Interpretation

In 2002, the Supreme Court of New Mexico had occasion to interpret article II, § 6 of the Constitution of New Mexico. In Baca v. New Mexico Dept. of Public Safety, the plaintiff challenged a provision of New Mexico’s Concealed Handgun Carry Act that provided municipalities and counties with the authority to prohibit the carrying of concealed weapons, arguing that the provision delegated to localities the power to regulate an incident of the right to keep and bear arms in violation of Article II, § 6.² The court agreed and held that the provision was unconstitutional. It found that the broad language of Article II, § 6 prohibiting municipalities and counties from regulating an incident of the right to keep and bear arms in any way indicated the intent to preclude piecemeal administration at a local level and to ensure uniformity in the regulation of firearms throughout New Mexico.³ The court also concluded that the manner in which a person bears a weapon is an “incident of the right to bear arms” under article II, § 6.⁴

As of the date this page was last updated, Giffords Law Center is aware of only one other interpretation of the preemptive effect of article II, § 6 set forth in an opinion of the Attorney General of New Mexico. The Attorney General opined that prior to the adoption of the last sentence in article II, § 6 in 1986, local governments had police power authority to enact reasonable firearms regulations, but the amended article II, § 6 removed that authority.⁵ Further, the opinion that an “incident” of the right to keep and bear arms pursuant to article II, § 6 includes the transfer of weapons.⁶

Immunity

For state laws prohibiting certain types of lawsuits against shooting ranges, see our page on Immunity Statutes in New Mexico.

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1. N.M. Stat. Ann. § 17-8-5.[↩]
2. 47 P.3d 441, 443-44 (N.M. 2002).[↩]
3. Id. at 444.[↩]
4. Id.[↩]
5. Op. Att’y Gen. No. 90-07 (1990), 1990 N.M. AG LEXIS 5 at *2,*6.[↩]
6. Id. at *4-*5.[↩]