Last Updated March 15, 2011

Article II, § 6 of the Constitution of New Mexico provides:

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.

In State v. Rivera, the Court of Appeals of New Mexico held that regulations that are reasonably related to the public health, welfare and safety do not violate article II, § 6.1 The court found that New Mexico Statutes Annotated § 30-7-4, which criminalizes negligent use of a deadly weapon, was a reasonable use of the state’s police power and did not violate the state constitution.2

Similarly, in State v. Dees, the court of appeals rejected an article II, § 6 challenge to former section 30-7-3, prohibiting the carrying of a firearm into a licensed liquor establishment.((669 P.2d 261, 264 (N.M. Ct. App. 1983).)) The court found that section 30-7-3 is “not an infringement upon the right to bear arms.”3

Conversely, in City of Las Vegas v. Moberg, the court of appeals held that a local ordinance banning the carrying of all firearms, concealed or unconcealed, violated article II, § 6.4 In Moberg, the court distinguished between laws that merely regulate the carrying of firearms, and laws that completely prohibit the carrying of firearms.5 The court stated that a law prohibiting the carrying of concealed firearms is a permissible regulation of article II, § 6. The ordinance at issue, however, prohibited the carrying of all firearms and was therefore a violation of article II, § 6.6

See also United States v. Romero, in which the court stated, in dicta, that the right conferred under article II, § 6 is not absolute and is subject to reasonable regulation.7

In 2004, the Supreme Court of New Mexico interpreted the meaning of the last phrase of the first sentence of article II, § 6, which reads “nothing herein shall be held to permit the carrying of concealed weapons.” In State ex rel. New Mexico Voices for Children, Inc. v. Denko, the court upheld a statute allowing license holders to carry concealed handguns (N.M. Stat. Ann. §§ 29-19-1 – 29-19-13),8 rejecting the argument that the phrase prohibits the carrying of concealed weapons.9 The court held:

The [New Mexico] Constitution neither forbids nor grants the right to bear arms in a concealed manner. Article II, Section 6 is a statement of neutrality, leaving it to the Legislature to decide whether, and how, to permit and regulate the carrying of concealed weapons.10

See Local Authority to Regulate Firearms in New Mexico for a summary for cases that have analyzed the preemptive effect of art. II, § 6.

Notes
  1. 853 P.2d 126 (N.M. Ct. App. 1993). ⤴︎
  2. Rivera, 853 P.2d at 129. ⤴︎
  3. Dees, 669 P.2d at 264. ⤴︎
  4. 485 P.2d 737 (N.M. Ct. App. 1971). ⤴︎
  5. Id. at 738. ⤴︎
  6. Id. ⤴︎
  7. 484 F.2d 1324, 1327 (10th Cir. 1973). ⤴︎
  8. 2004-NMSC-11, 135 N.M. 439, 90 P.3d 458, ⤴︎
  9. Id. at ¶¶ 5-13. ⤴︎
  10. Denko, at ¶ 8. ⤴︎