Analysis of New Mexico Gun Ban Bill Predicts Widespread Defiance

New Mexico Gov. Michelle Lujan Grisham’s proposed ban on gas-operated semi-automatic firearms gets its first committee hearing today with the House Consumer and Public Affairs Committee set to consider HB 137, and the bill is already drawing some red flags from the New Mexico Attorney General’s office as well as the Law Offices of the Public Defender.

A fiscal impact report prepared by the Legislative Finance Committee released on Wednesday details some of the concerns over the bill, including the prediction from both the AG’s office and the Administrative Office of the Courts that the bill would be subject to a costly legal challenge if it’s signed into law. According to the Legislative Finance Committee, taxpayers can be expected to fork over almost half a million dollars for Attorney General Raul Torrez to defend the law in court, though it’s unclear if the LFC is  accounting for the cost of lawsuits filed in both federal and state court. In addition to the legal bills, the fiscal analysis estimates it will take at least $200,000 each year for the Attorney General to enforce the measure if it takes effect.

NMAG advises, to perform the tasks HB137 assigns to it, it will need highly specialized technical staff to ensure its listing of applicable weapons is up to date, given constant updates to firearms and accessories. It will require a ballistics and firearms expert on staff to handle its responsibilities under the act and to coordinate with DPS and the U.S. Bureau of Alcohol, Firearms and Explosives, at approximately $115 thousand per year, plus benefits, plus an investigator at approximately $85 thousand per year, plus benefits.

The Law Offices of the Public Defender (LOPD) expresses concern over potential widespread noncompliance should HB137 be enacted, leading to an unquantifiable increase in workload and expenses. LFC staff estimates this potential cost as indeterminate but minimal, which likely can be absorbed within its current budget.

While the public defender’s office may be able to absorb the cost of defending individuals charged with violating Grisham’s gun ban, the LFC predicts that the measure will also lead to a little more spending on incarceration if it’s enacted.

Incarceration drives costs in the criminal justice system, so any changes in the number of individuals in prison and jail and the length of time served in prison and jail that might result from this bill could have significant fiscal impacts. The creation of any new crime, increase of felony degree, or increase of sentencing penalties will likely increase the population of New Mexico’s prisons and jails, consequently increasing long-term costs to state and county general funds. NMCD reports the average cost to incarcerate a single inmate in FY22 was $54.9 thousand; however, due to the high fixed costs of the state’s prison facilities and administrative overhead, LFC estimates a marginal cost (the cost per each additional inmate) of $26.6 thousand per year across all facilities. LFC estimates a marginal cost (the cost per each additional inmate) of $19.2 thousand per county jail inmate per year, based on incarceration costs at the Metropolitan Detention Center. HB137 is anticipated to increase the number of incarcerated individuals.

This analysis estimates HB137 will increase annual incarceration costs by at least $26.6 thousand to the state, which costs remain constant over the next two years. The impact on counties is estimated to be $38.4 thousand per year, which cost also remains constant over the next two years. Without additional available data, this analysis assumes the new crime of misdemeanor violation of the Act will result in at least two additional people being admitted to county jail for that offense each year and at least one person being admitted to NMCD facilities for the fourth degree felony violation.

The public defender’s office is anticipating widespread defiance, while the LFC predicts just a handful of people would be put behind bars for violating the law, which suggests a distinct lack of enforceability. A single individual incarcerated for possessing one of the most commonly-owned firearms in the country is too many, however, so even if the bill as written is practically impossible to enforce in practice it still goes much too far in treading on our fundamental rights.

The AG’s office didn’t predict the outcome of any legal challenge to HB 137, though it did note that the state would likely have to show the sweeping gun ban is “consistent with this Nation’s historical tradition of firearm regulation” if it’s going to stand up to legal scrutiny.

Further, AOC reports the National Shooting Sports Foundation asserts the federal version of HB137 is clearly unconstitutional, citing a 2008 U.S. Supreme Court decision in District of Columbia v. Heller that entire classes of firearms cannot be banned from legal sale and possession by law-abiding citizens. LOPD also cites the Heller decision as the basis for critics’ challenges to the federal version of this bill. Additionally, NMAG comments that while similar statutes have been upheld in other states under their constitutional provisions governing firearms, the language of those provisions differs from that found in Article 2, Section 6, of New Mexico Constitution, which may require the application of a different analysis.

On the other hand, DPS (Department of Public Safety) contends, “By focusing on particularly dangerous weapons, this bill does not run afoul of the Second Amendment.” It cites recent litigation over a similar bill enacted in Illinois, in which the 7th U.S. Circuit of Appeals concluded that bill has a “strong likelihood” of being found constitutional, after which the U.S. Supreme Court declined to preliminarily enjoin the law, which may be interpreted as support for the lower court conclusion.

Go figure that the agency most closely connected to Grisham’s office is the one offering a bullish prediction about the constitutionality of the governor’s gun ban. While that agency contends that HB 137 doesn’t infringe on anyone’s right to keep or bear arms because it’s focused on supposedly “particularly dangerous weapons”, the Supreme Court has previously stated that the Second Amendment extends, prima facie, to all arms that are not “dangerous and unusual.” Every firearm, from a .22LR rimfire rifle to a .50 BMG is a dangerous weapon. The question that will ultimately be before the courts is whether gas-operated semi-automatic rifles, which constitute the vast majority of all semi-automatic long guns, are unusual.

The answer is pretty clearly “no”, and I wouldn’t place a lot of stock in the Supreme Court siding with the Seventh Circuit’s assertion that semi-automatic rifles like the AR-15 aren’t protected by the Second Amendment because they’re “like” fully-automatic machine guns. And as Torrez’s office pointed out, if HB 137 is signed into law it probably won’t just be challenged in federal court. New Mexico’s state constitution provides that “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”.

It’s hard to argue with a straight face that banning the manufacture, sale, transfer, and possession (in most cases) of most semi-automatic long guns in existence doesn’t abridge or curtail the right to keep and bear arms for all lawful purposes that’s protected in Article 2, Section 6 of the state constitution.

The fiscal impact report offers a damning look at the damage HB 137 would do to the civil rights of New Mexico residents, and should give even Grisham’s most devoted sycophants in the legislature cause for concern. We’ll see if any Democrat on the House Consumer and Public Affairs Committee dare to cross the governor and vote against HB 137, but the Legislative Finance Committee has given gun owners in the state ample arguments to use when they contact their lawmakers and urge them to oppose Grisham’s gun ban if and when the bill moves forward.