Albuquerque Mayor Tim Keller issued a new administrative order on Monday barring the possession of firearms from all city-owned parks and recreation facilities, though the order would appear to directly conflict with language in the New Mexico state constitution.
The new order comes days after a shooting at an Albuquerque protest in the city’s Old Town, where a man shot a protester who was attacking him. 31-year old Steven Ray Baca is facing charges of carrying a firearm without a license, but for now anyway he’s not facing any charges over the shooting itself. While that investigation continues, Mayor Keller is citing the incident as reason to issue the ban, though his take on the legality of the new order leaves a lot to be desired.
The order references the shooting near Tiguex Park. “With the Albuquerque Police Department recovering a large number of firearms and ammunition, that incident had the potential to be much more violent than it was,” it reads. “The City of Albuquerque has the police power to protect its inhabitants and preserve peace and order under NMSA 1978, 3-18-1, and desires to exercise this authority to prevent future incidents like the shooting on June 15, 2020.”
“In declaring the Second Amendment’s individual right to bear arms in District of Columbia v. Heller,” the order goes on, “the United States Supreme Court recognized the legitimacy of prohibitions on carrying firearms in ‘sensitive places.’” It says the high court in that case specifically noted schools and government buildings as sensitive places, but didn’t provide an exhaustive list.
It’s true that the New Mexico statutes say that municipalities may “protect generally the property of its municipality and its inhabitants” as well as “preserve peace and order within the municipality,” but that doesn’t give cities carte blanche to do whatever mayors want in order to preserve the peace or protect property. They still have to remain within the bounds of both the U.S. and New Mexico constitutions.
Keller’s order references Heller in trying to claim that parks and recreation centers are now suddenly “sensitive places” in the eyes of city officials, but it only briefly mentions Article II, Section 6 of the New Mexico constitution, which clearly contradicts Keller’s authority to issue any such order at all.
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.
Keller is claiming that his order is lawful doesn’t violate the preemption language in the state constitution, but he’s relying on a misreading of the state statute barring the carrying of firearms on school grounds in order to make his legal case. The mayor claims that, because parks and recreation centers are used for some public school activities, that means that they’re considered school grounds for the purposes of banning firearms. The mayor’s problem is biggest problem is that the state statutes actually proscribe specific limits on when those places may be off limits to legal firearms carrying.
The statutes says that the ban on carrying firearms can take place at “any other public buildings or grounds, including playing fields and parking areas that are not public school property, in or on which public school-related and sanctioned activities are being performed” (emphasis mine).
Are being performed, not “can be performed.” Keller’s order bars firearm possession at parks and recreation centers, the city’s Convention Center (because graduations are performed there), Civic Plaza (because there’s playground equipment there and sometimes a nearby school uses the playground for P.E.), and “any other City of Albuquerque property public school-related and sanctioned activities are performed.”
Notice the difference? In this case, one word makes a big difference. State law does not allow Albuquerque to ban guns from the Civic Center just because it hosts graduations a few days a year. Similarly, they can’t ban guns from local parks or recreation areas unless they are actually in use by a local school. As soon as the soccer practice ends, so does the prohibition on carrying.
I’m not even an attorney and I can see how bad the mayor’s legal claim to authority is here. Keller’s order is in clear violation of the state constitution, and he’s completely misreading the state statutes about possession of firearms on school premises. I’ve spoken with representatives from several Second Amendment groups that are already looking at filing a lawsuit over the city’s new gun ordinance, and it should be a slam dunk victory. Mayor Keller may not be able to keep his city under control, but that’s no excuse for his attempt to circumvent the state’s constitution and the rights of Albuquerque gun owners.