» Cities Can Regulate Super-Sized Sodas, Not Guns

In the wake of the school shooting in Newtown, Conn., Santa Fe City Councilor Patti Bushee said she was considering proposing a local ordinance to ban assault weapons and high-capacity magazines.

Bushee quickly got a lesson in New Mexico law, specifically Article II, Section 6 of the state Constitution, which reads:

“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.”

Because of that last sentence, Bushee has given up on a city ban on assault weapons; she says there still might be legal wiggle room for a prohibition on high-capacity ammunition clips for automatic and semiautomatic weapons.

While local governments can’t regulate guns, they do have expressed legal authority to regulate many other things. Here are a few:

♦ Luminarias and farolitos.

♦ “Unwholesome” businesses.

♦ “Any amusement or practice that tends to annoy persons on a street or public ground.”

♦ Store display of nudie magazines.

♦ Secondhand stores.

♦ Planting of trees, shrubs and vines.

♦ Food and drink.

Maybe we don’t allow local governments to regulate guns because guns don’t kill, super-sized sodas do.

BUSHEE: Santa Fe city councilor

The section of the state Constitution on the right to bear arms didn’t originally include the ban on local government regulation. Voters in 1986 approved an amendment to add the prohibition.

Prior to then, local governments, just like the state and federal governments, could enact reasonable restrictions on the right to bear arms.

But state legislators, in putting the issue to voters, said that they didn’t want a hodgepodge of local gun laws and that local governments often pass such laws in an “emotional state.”

They also didn’t want local governments in New Mexico following in the footsteps of Morton Grove, Ill., which in 1981 became the first town in the nation to ban the possession of handguns.

Most state constitutions guarantee the right to bear arms, but New Mexico’s is the only one that specifically prohibits any local government regulation.

According to the Law Center to Prevent Gun Violence in San Francisco, the New Mexico provision has been subject to little legal interpretation.

In an opinion in 2002, the state Supreme Court said the provision “indicates an intent to preclude piecemeal administration at a local level and to ensure uniformity in the regulation of firearms throughout the State of New Mexico.”

A 1990 opinion by the state Attorney General’s Office said the provision prohibited local governments from regulating the buying and selling of firearms.

“The ability to obtain weapons is inherent in and connected with the right to bear and keep arms,” the opinion said.

The ban on local government regulation was the second amendment to the section of the state Constitution on the right to bear arms.

The first amendment, approved by voters in 1971, added these words, “but nothing herein shall be held to permit the carrying of concealed weapons.”

The Legislature in 2003 passed a law allowing concealed carry of handguns, and the state Supreme Court later upheld it, saying the constitutional provision neither prohibited nor allowed concealed carry and left the issue for lawmakers to decide.

Given our “emotional state” over the Newtown school shooting, it seems unlikely the Legislature will ask voters whether they want to remove the constitutional ban on local regulation of the right to bear arms.

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