N.M. Concealed Carry Law in Danger

The New Mexico law permitting concealed carry of handguns is in danger of being struck down by a federal judge.

And here’s an ironic twist:

The threat to the concealed carry law is an unintended result of a lawsuit filed by a gun-rights group, the Second Amendment Foundation, which is based in the state of Washington but active nationwide on gun issues.

In the lawsuit, filed in April in U.S. District Court in Albuquerque, the foundation is challenging a provision in New Mexico’s concealed carry law that restricts concealed carry permits to U.S. citizens.

The foundation only wants that citizenship provision declared unconstitutional, but Judge Christina Armijo has raised the issue of whether she can do that without tossing out the entire concealed carry law.

At a hearing this week, Armijo set a Jan. 4 deadline for attorneys for the foundation and the state Attorney General’s Office to submit legal arguments on the issue.

David Sigale, a Chicago-area lawyer representing the foundation, said he doesn’t believe it’s necessary or proper to strike down the entire concealed carry law while declaring the citizenship requirement unconstitutional.

“This is purely one small issue we believe can be corrected,” Sigale said in a telephone interview.

John W. Jackson of Rio Rancho, a citizen of Australia who obtained permanent resident status in 2008, is also a plaintiff in the lawsuit.

The Attorney General’s Office said the judge has the discretion to strike down the entire concealed carry law but that it is working closely with the Governor’s Office to defend the statute.

The state’s concealed carry law, enacted in 2003, provides for permits after handgun training and background checks.

Applicants must provide proof of U.S. citizenship.

The lawsuit argues that prohibiting resident legal aliens from carrying concealed weapons is unconstitutional under the Second Amendment and the equal protection clause of the 14th Amendment of the U.S. Constitution.

Even if the lawsuit is successful in getting the citizenship requirement removed from the concealed carry law, firearms possession by illegal immigrants will still be unlawful.

Federal law prohibits that.

Defendants in the lawsuit are Gary King, in his capacity as state attorney general, and Bill Hubbard, in his role as director of the Special Investigations Division of the state Department of Public Safety.

Hubbard’s agency administers New Mexico’s Concealed Handgun Carry Act.

The Attorney General’s Office has argued in the case that there is no Second Amendment right to carry a concealed handgun.

The AG’s Office also has noted that state law allows open carrying of firearms and allows concealed carry without a permit under some circumstances.

“Between the ability to openly carry a firearm and the ability to carry concealed when on one’s own property or in one’s vehicle, plaintiffs and their alleged class are not denied the ability to protect themselves,” the AG’s Office argued in a court filing.

In March, in a similar case brought by the Second Amendment Foundation in Massachusetts, a federal judge struck down a citizenship requirement in that state’s concealed carry law.

U.S. District Judge Douglas Woodlock ruled Massachusetts couldn’t deny a concealed carry permit solely on the basis of someone being a permanent resident alien.

“The Massachusetts firearms regulatory regime … contravenes the Second Amendment,” Woodlock wrote.

While opposing the Second Amendment Foundation in New Mexico, King has sided with the group in its court challenge to a Maryland law that says a person must have “good and substantial reason” to get a permit to carry a concealed handgun.

A federal judge in Baltimore struck down the Maryland requirement in March, saying, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights.”

A federal appeals court in Richmond, Va., now has the case, and King and several other state attorneys general have asked the court to uphold the judge’s ruling.

A King spokesman has said there is no conflict between the AG siding with the Second Amendment Foundation in the Maryland case while being sued by it in New Mexico.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to www.ABQjournal.com/letters/new to submit a letter to the editor.
— This article appeared on page A1 of the Albuquerque Journal