SAF sues New Mexico over legal resident alien CCW permits

[Frank Ettin]

Originally Posted by zincwarrior

...With all respect to your opinion, I could care less than nothing if they are not citizens. I will bow to the requirements of the 14th Amendment, however, but I am nt going to act like I care a whit.

In any case, your opinion, which you're entitled to, is meaningless in the real world. What counts is the opinion of the courts, and they have not adopted your view of things.

The opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinion on such matters and $2.00 will get you a cup of coffee at Starbucks.

[KyJim]

Getting back on topic --- The weakness in the argument is that nobody has declared the right to carry concealed protected by the 2A and I'm sure the state will point this out. I'm not versed enough in Equal Protection law to know if the classification of citizen vs. legal resident aliens is sufficient where a constitutional right is not involved (yes, I'm assuming the 2A does not protect concealed carry if open carry is legal).

[zincwarrior]

In any case, your opinion, which you're entitled to, is meaningless in the real world. What counts is the opinion of the courts, and they have not adopted your view of things.

The opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinion on such matters and $2.00 will get you a cup of coffee at Starbucks.

I never said otherwise. Of course, all our opinions are actually meaningless. Only the courts and who gets elected count.

[Al Norris]

Here's a very brief recap of the docket:

03/30/2013 41 MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo granting 28[RECAP] Motion to Dismiss (cab) (Entered: 04/01/2013)

03/30/2013 42 MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo granting 18[RECAP] Motion for Preliminary Injunction (cab) (Entered: 04/01/2013)

Doc #41 and #42 should show up in a short time. The Docket is here: Internet Archive

Briefly, Mr. King was dismissed as a defendant (doc 41) but the overall injunction was granted.

[Aguila Blanca]

Seems to be a well-reasoned decision.

[maestro pistolero]

But wait, I thought there was no right to carry a concealed weapon per Heller.

[1-DAB]

relevant part:

IT IS THEREFORE HEREBY ORDERED that Plaintiffs’ Motion for
Preliminary Injunction is GRANTED and Defendant Hubbard is preliminarily enjoined
from enforcing the citizenship provision in Section 29-19-14(A)(1) of the Concealed
Handgun Carry Act pending resolution of this action.
SO ORDERED this 30th day of March, 2013 in Albuquerque, New Mexico.

[KyJim]

But wait, I thought there was no right to carry a concealed weapon per Heller.

The court here did not rely upon the Second Amendment. In fact, it cited the 10th Circuit Peterson case and held:

Pursuant to Peterson, the Second Amendment does not confer a right to carry concealed weapons. Accordingly, Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their Second Amendment claim.

Opinion at p. 13.

The court based its ruling on the Equal Protection Clause of the 14th Amendment. It applied strict scrutiny:

Although New Mexico’s Concealed Handgun Carry Act does not burden a fundamental right, it nonetheless may be subject to strict scrutiny if it targets a suspect class. . . . Alienage is a suspect classification and state statutes that discriminate on the basis of alienage are subject to strict scrutiny. . . . New Mexico’s Concealed Handgun Carry Act discriminates on the basis of alienage and, therefore, strict scrutiny is the applicable standard.

Opinion at p. 14 (citations omitted).

The court relied on the Kachalsky opinion from the 2nd Circuit and held that their was a compelling state in protecting “the public from concealed carry of firearms because of the inherent danger that unregulated concealed weapons pose to the public.” Opinion at 17. It concluded, however, that the legislation was not narrowly tailored to serve that interest:

Defendant Hubbard has failed to demonstrate a close fit between the means chosen and the state’s compelling interest. There is no argument made, much less any evidence proffered, that a permanent resident alien, such as Mr. Jackson, who resides in this country legally, poses a greater danger by virtue of his or her status alone, when carrying a concealed loaded firearm, than do United States citizens"

Opinion at p. 18.

That was the heart of the decision and again illustrates why the standard of review is so darned important.

[press1280]

Sort of odd that alienage discrimination gets a CCW(in a gold star open carry state), while Gray Peterson as a Washington resident can't get one in a place where open carry isn't available. But at least the equal protection argument was understood by the court. Someone ought to tell the 10th Circuit

[kcbrown]

It took 8 months to go from filing the motion for preliminary injunction to actual grant of the injunction.

It took nearly a year for the same to occur in Ezell.

It should now be clear to all concerned that preliminary injunctions are useless for preventing infringement of rights in the face of legislatures which are determined to infringe upon those rights. While PI action is indeed faster than the normal judicial approach, that is small comfort given the sheer amount of time it takes for even a PI to be had, because the end result is that the legislature will be able to infringe upon the rights of the citizenry for at least 2/3 of the time in any given year (8 months is 2/3 of a year).


I cannot regard that as an effective defense. Hence, it seems to me that the rights-infringing legislatures will win in the end, since they have no legal liability for their infringement efforts.

[Al Norris]

I don't think I've welcomed you to my end of the interwebs, KC! Welcome aboard.

I gotta warn ya, though... Your brand of optimistic pessimism (or is that pessimistic optimism?) will be less accepted here than at CGN. I know that this won't mean much, but if you get some flack over it, at least you will know why.

I didn't expect the 2A argument to go over. But it was nice to see the Judge understood the EP argument and gave it the proper scrutiny. It may not be over, especially if the State appeals this to the CA10.

[kcbrown]

Originally Posted by Al Norris

I don't think I've welcomed you to my end of the interwebs, KC! Welcome aboard.

Thank you sir!

I gotta warn ya, though... Your brand of optimistic pessimism (or is that pessimistic optimism?) will be less accepted here than at CGN. I know that this won't mean much, but if you get some flack over it, at least you will know why.

Heh. It's confusing to some as to where I am on that scale, because my goal is to land squarely between pessimism and optimism, at the point of realism, but to err on the side of pessimism if I have to err at all (it is far better to be happily surprised than unhappily surprised, for the latter can get you killed in some circumstances). If I wind up being wrong about something, I do my best to adjust my views to account for that.

Some believe my views to be overly cynical. I cannot help that. The real world is a hostile and unforgiving place, and evil is baked into the very fabric of the universe (else entropy would not be a fundamental law of the universe, and death would not be the inevitability that it is). My views are a direct reflection of that.

[armoredman]

Where is CGN? Always looking for a new forum to annoy...er "join".

[Tom Servo]

He's referring to Calguns, California's most effective gun-rights group. Gene Hoffman is their lead attorney, and Gray Peterson works with them.

[Al Norris]

Close but no cookie, Tom.

CGN is CalGuns.net. A very popular CA gun board (perhaps the largest such board in CA). This is not to be confused with CGF, CalGuns Foundation, of which Gene Hoffman is (at the very least) a Board member (and founder).

While CGN and CGF are not related, most members of the CGF Board are members of the CGN gun board. A lot of what the CalGuns Foundation does, can be seen and commented upon at CalGuns.net.

CGF supports CA gun rights through litigation, education, and outreach initiatives.

[armoredman]

I've heard of them, a very effective group. Kudos to them for fighting in a very difficult battleground.

[Al Norris]

I should have also clarified, Gene is not an attorney. A very astute businessman, yes.