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SB 428

What Is An Assault Weapons Ban and Can Your Business Survive it?

SB 428 -- Direct Attack Against the NM Firearms Industry



Specifically, HB 137 bans the manufacture, sale, and transfer of gas-operated firearms with detachable magazines; magazines that are capable of holding more than 10 rounds; bans handguns with fixed magazines that can hold more than 15 rounds of ammunition and long guns with fixed magazines that can hold more than 10 rounds of ammunition; bans parts or combinations of parts from which such firearms can be assembled; and attempts to supersede federal law by banning certain NFA items outright. Current owners of any of these firearms will have to register them with the New Mexico Department of Public Safety prior to January 1, 2025, to maintain possession, or transfer them out of state or to a federal firearm licensed dealer, or face criminal charges. The future transfer of these guns would be limited to immediate family, or to an FFL or someone out of state.


NM HB 137, Gas-Operated Semiauto Firearms Exclusion Act: This is a stealth assault weapons bill: it applies to gas-operated semiautomatic firearms, machine guns/machine gun attachments, and standard capacity magazines (“large capacity ammunition feeding devices”). The specific types of “gas-operated semiautomatic firearms” that are covered as “regulated weapons” (“prohibited” weapons in Section 3) remain uncertain as these have to be designated on a list compiled by the state AG (Section 6). There is a separate “certification” provision applicable only to gas-operated semiautomatic firearms (not LCMs or machine guns/attachments), but the bill drafting on that is something of a dead end. The substantive prohibitions (possession, transfer, sale, receipt) on gas-operated semiautomatic firearms in Section 3 appear to apply to only “prohibited” firearms and parts, as listed (“regulated weapons”) but not the types of guns listed at Section 3(F); otherwise, anything else is open to being listed as a “regulated weapon.” The bill bans the manufacture, sale, transfer and receipt of any standard capacity magazine that holds over ten rounds made after July 1, 2024 as an LCM. It doesn’t ban possession of a pre-July 1st-made LCM or require surrender, but it prohibits any transfers after that date. As for “machine guns” (a wishy-washy category that is far from precise and includes certain semi-auto guns) and “machine gun attachments,” the bill’s Section 5 prohibits their import, sale, manufacture, transfer, receipt or possession, although it exempts machine guns and machine gun attachments “lawfully registered” with the ATF under the NFA. There is no certification option for these. None of these new crimes requires a “knowing” violation and, in the case of the machine gun/attachment provisions, a violation is a fourth degree felony. You have Josh’s one pager on the GOSAFE Act (S. 3369, the GOSAFE or Gas-Operated Semi-Automatic Firearms Exclusion Act). The key term is “gas-operated semiautomatic firearm” which in turn relies on two separate definitions, “gas operated” at Section 2(C), and “semiautomatic firearm” at Section 2(G). The definition of a “semiautomatic firearm” refers to any firearm that uses the energy of a fired cartridge to extract the case, chamber the next round, and reset the firing mechanism to fire again, that requires a separate pull or initiation of the trigger to fire each cartridge, and that isn’t a “machine gun,” as that is defined in the bill. “Gas operated” refers to any firearm that harnesses or traps a portion of the high-pressure gas from a fired cartridge to “cycle the action” by any of the five ways listed (all semiautomatics guns, by my reckoning). A “machine gun” is anything that falls within the federal NFA definition at 26 U.S.C. § 5845 (defining a “machinegun,” one word, as being “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person”). However, the bill (starting at page 3, line 25) also includes in the term any “semiautomatic firearm” that has been modified so as to “materially increase the rate of fire” or to “approximate the action or rate of fire of a machine gun,” which are not exact standards. The bill further augments “machine gun” by adding a definition of “machine gun attachment” (page 4, line 4), which among other things, includes just a part that attaches to a “semiautomatic firearm” so as to “materially increase the rate of fire” or to “approximate the action or rate of fire of a machine gun.” A “large capacity ammunition feeding device” at Section 2(D) means a magazine, belt, drum, feed strip, helical feeding device or similar (“including any such device joined or coupled with another in any manner”) with a capacity of more than ten rounds. It includes any such item that can be “readily restored, altered or converted to accept, more than ten rounds … and is not permanently fixed.” It does not include devices used exclusively for .22 or less caliber rimfire. These definitions do not apply across the bill because there are several exceptions, depending on the prohibition involved, and the substantive provisions can refer to several variations that aren’t necessarily part of the underlying definition (e.g., “a combination of parts…” in Section 3). The substantive provisions of this bill are a mess. Overall, I would guess that most, if not all, of this bill (with its certification requirements for lawful possession, bans of “regulated weapons,” magazines and parts, near-bans on certain sales and transfers, and restrictions on where certain semiautomatic firearms may be possessed) is invalid under the Bruen analysis. A. Gas-operated semiautomatic firearms. Section 6 requires the Attorney General to develop, after consultation with the department of public safety, a “list of gas-operated semiautomatic firearms” that are “subject to” the bill, with a deadline of December 1, 2024. The list has to be published. This Section doesn’t refer to certified weapons or certification, and is titled “regulated weapons” (Section 3 calls the listed guns “prohibited”). Also by December 1, the AG has to publish the “manner in which gas-operated semiautomatic firearms shall be marked pursuant to Subs. E of Section 3.” Section 7 requires the Attorney General, after consultation with the department of public safety, to develop and have a certification process in place by October 1, 2024, “for certifying gas-operated semiautomatic firearms pursuant to Section 5” of the bill. As worded, this certification doesn’t apply to gas-operated semiautomatics or specific guns on the Section 6 list, because Section 5 of the bill (at page 12, line 13) doesn’t deal with gas-operated semiautomatic firearms at all. It covers exclusively machine guns or machine gun attachments, which can’t and don’t come within the definition of a “gas-operated semiautomatic firearm.” Section 7 is the only section on certification, based on references in Section 3 and Section 8. The bill isn’t clear on whether Section 6’s “regulated weapons” are the only ones that have to be certified. Even assuming there is an intelligible certification process, there is no procedure for “decertification” or correction of the AG records. Once a certified gun is “transferred” (insofar as Section 3(C) allows), the original “certifier” has no way to update the state records. The Section 7 certification also doesn’t clearly refer to the gun’s owner but the possessor, as it requires an affidavit that a “person possessed the semiautomatic firearm pursuant to Section 5 [the incorrect section] …prior to January 1, 2025,” along with make, model, serial number, caliber and the individual’s personal information. A “completed certification submitted to the attorney general by a person pursuant to this section creates a rebuttable presumption that the person is entitled to possess and transport the gas-operated semiautomatic firearm.” Section 3(A) is the substantive offenses section that criminalizes possession, transfer, sale, import, receipt and manufacture of certain gas-operated semiautomatic firearms. Based on Section 3(F) (page 9, starting at line 5) and for the purposes of Section 3 only, a “gas-operated semiautomatic firearm” excludes all of the things listed below: · any firearm that uses/designed to use exclusively .22 caliber rimfire ammunition. · any rifles that are single-shot, or breech-loading with a capacity not over two rounds; or muzzleloading or smoothbore shoulder-fired “firearms,” or that use a bolt action, lever action or pump action, or with a permanently fixed magazine “with a capacity not to exceed ten rounds of ammunition that cannot be converted or changed to accept more than ten rounds.” · any shotguns that are single-shot, or breech-loading with a capacity not over two rounds, or muzzleloading, or that use a bolt action, lever action or pump action, or are “semiautomatic or autoloading” without a detachable magazine, or with a permanently fixed magazine with a capacity not to exceed ten rounds of ammunition that cannot be converted or changed. · any single shot handgun, breech loading handgun with a capacity not over two rounds, muzzleloading or smoothbore handgun, bolt action handgun, single- or double-action revolver, or single- or double-action semiautomatic handgun that uses recoil to cycle the action, or a handgun with a permanently fixed magazine that doesn’t exceed 15 rounds and cannot converted or changed to accept more. · a breech-loading firearm capable of holding a single cartridge and a single shotgun shell simultaneously that must be reloaded after firing those rounds. Otherwise, under Section 3(A), as of January 1, 2025, it is a crime for anyone to import, sell, manufacture, transfer or receive a firearm included on the list of prohibited gas-operated semiautomatic firearms compiled by the attorney general. Section 3(B) makes possession of anything included in subs. (A) a crime, too. This includes “a modified non-prohibited firearm that, as modified, operates as a firearm included on the list,” any “combination of parts that is designed and functions to modify an otherwise non-prohibited firearm so that the firearm, as modified, operates as a gas-operated semiautomatic firearm included on the list,” or “designed to be assembled into a firearm that operates as a firearm included on the list,” or even “a combination of parts that functions to produce a gas-operated semiautomatic cycling action.” There is no requirement that any of these prohibited actions be committed “knowingly,” which exponentially increases the risk of an inadvertent violation. Absent the AG’s list, it’s not possible to predict what is going to be prohibited, although the language (modified non-prohibited firearm that operates as a firearm included on the list, and combination of parts “designed to be assembled,” and a “combination of parts that functions to produce a gas-operated semiautomatic cycling action”) is potentially overbroad and vague, requiring a determination of how many parts are required to cross the line into design and function – and not all gas-operated semiautomatic cycling actions are prohibited (a firearm that uses/designed to use exclusively .22 caliber rimfire uses a gas-operated semiautomatic cycling action but is exempt, and so its gas-operated cycling action should be as well). For firearms that are included in Section 3, exemptions to subs. (A) and (B) are listed at Section 3(C) and (D). Subs. (C) exempts “importation or manufacture by or for, sale or transfer to or possession by or under the authority of” listed government entities. Section 3 prohibits “import, sell, manufacture, transfer or [receipt],” and while subs. (C) exempts the government for “sale or transfer to,” the exemption will not allow the government to sell or transfer the firearms, as in the case of surplus or obsolete equipment. There is no general FFL (manufacturer, dealer) exemption here; to be exempt, the manufacture, sale, import or transfer has to be done for one of the government agencies in Section 3(C). An FFL’s “possession” is exempted only if it is “possession by or under the authority of” the government entities listed, which likely doesn’t cover the FFL (which means the possession restriction below applies). With respect to gas-operated semiautomatic firearms covered by Section 3 and individuals, subs. 3(C)(3) exempts possession, but only if, prior to January 1, 2025, the gun was manufactured, transferred by the manufacturer to another party, and “certified by the owner” under Section 7. This requirement likely means that many “homemade” firearms cannot be certified, because the “manufacturer”(owner) has to transfer the gun to another party before it may be certified. There is also the question of compelled incrimination: in order to avoid liability for the possession crime under Section 3(B), a person has to complete the certification under Section 3(C)(3) (which refers to a “lawfully” manufactured, but not “lawfully possessed,” firearm). Certification requires an affidavit in which the applicant discloses name, address, date of birth, the gun’s serial number, make, and model, and that possession predates January 1, 2025. The bill specifically states (page 15, line 20) that this information may be disclosed to “law enforcement agencies acting in the performance of their duties,” and punishes false statements as perjury (line 24). The possession crime and exemption in Section 3 don’t carve out an exception for nonresidents who move to New Mexico and come within Section 8, where firearms/parts made after July 1, 2024 (regardless of when the nonresident arrives in New Mexico) may be lawfully possessed for 60 days pending certification. As for transfers by individuals, Section 3(C)(4) and (5) allow only a couple of kinds of transfers: if the gun was lawfully possessed prior to January 1, 2025, and either (1) the transferee is an “immediate family member” (the limited class in the bill) who “immediately” certifies the gun upon taking possession, or (2) the gun has been certified and is being transferred to a licensed gun dealer or a person residing/maintaining it in another state. This subsection refers only to a “transfer” but not a “sale,” and the two terms are not synonymous (the substantive prohibition uses both). “Transfer” isn’t defined, but the existing law, NM. Stat. § 30-7-7.1 on private background checks defines a “sale” as a transaction involving “the delivery or passing of ownership, possession or control of a firearm for a fee or other consideration, but does not include temporary possession or control of a firearm provided to a customer by the proprietor of a licensed business in the conduct of that business.” Does “transfer” exclude a “sale,” and does “transfer” include “temporary possession or control” of a firearm? Another problem with the possession and transfer rules for individuals is that a certification doesn’t apply to parts; only a “firearm” may be certified. Section 3(A) and (B) criminalize transfers, sales and possession of the various “combination of parts,” but a previously lawful possessor has no option besides destruction, because possession or transfer (out-of-state or to an FFL) aren’t possible without certification. For individuals who possess a gas-operated semiautomatic firearm in compliance with the certification requirement, Section 3(D) still limits the places where these may be possessed: on private property owned or immediately controlled by the person; on private property that is not open to the public with the express permission of the person who owns or immediately controls such property; while on the premises of a licensed firearms dealer or gunsmith for the purpose of lawful transfer or repair of the firearm; while engaged in the legal use of the firearm at a properly licensed firing range or sport shooting competition venue; or while traveling to or from the locations described above, provided the gun is unloaded and enclosed in a case, shipping box or other container. There are no exemptions for anyone (concealed carry licensees, law enforcement, LEOSA, the military). The exemption for government agencies at Section 3(C) applies to possession, but that exemption is limited to subs. (A) and (B) and not (D), so this “locations” ban applies to governments and their agents and employees. There is no exemption for lawful self defense in any location that isn’t listed (as the gun has to be unloaded and cased at all times). Section 8, dealing with out-of-state individuals who are travelling and transporting a prohibited firearm /parts under Section 3(B) or a LCM “manufactured after July 1, 2024” (unclear whether this date refers to just the LCM or both, but likely both given page 17, line 12), allows the traveler to possess the items for a 24-hour period provided the person is coming from and going to a place where he or she may lawfully possess the firearm/parts or LCM, and the item is not readily accessible from the passenger compartment or is locked in a separate container. The exception expires after 24 hours. This appears to conflict with the federal interstate transportation of firearms law at 18 U.S.C. § 926A, which allows transport of firearms/ammunition (not LCMs, which aren’t regulated) without a 24-hour time limit and without a cut-off date by which the item have to be manufactured by to be lawfully transported; the federal law specifically states that it overrides state law (“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof…”). Second, the Section 8 traveler provision doesn’t specifically override Section 3(B) (possession crime), and Section 3(B) has no exceptions for persons falling within Section 8. Licensed gun dealers will be required to mark, before any transfer, a gas-operated semiautomatic firearm imported or manufactured after January 1, 2025, in a manner specified by the Attorney General; Section 3(E) and Section 6(D). B. Large Capacity Ammunition Feeding Devices (LCMs). The definition of an LCM at Section 2(D) includes a device, other than for .22 caliber rimfire rounds, that “has an overall capacity of, or that can be readily restored, altered or converted to accept, more than ten rounds of ammunition; and (b) is not permanently fixed.” There is a 2020 Colorado case, Rocky Mountain Gun Owners v. Polis, 467 P.3d 314 (Colo. 2020), that looked at an LCM ban law where the language was “a device capable of accepting, or that is designed to be readily converted to accept, more than 15 rounds.” The plaintiffs claimed the definition was unconstitutional as banning practically all detachable magazines, because the very large majority of detachable box magazines contain a removable floor plate. This “inherently creates the possibility” that the magazine can be extended through commercially available extension products or readily fabricated extensions, such that nearly every magazine can be “readily converted” to exceed the 15 round limit. The court upheld the law only because it had the words “designed to be” as part of the definition, which this bill does not. While removable base pads made it possible to increase the capacity of a magazine, they were not specifically designed to be so modified or converted to LCMs. Rather, manufacturers designed magazines with base pads with the intent to facilitate cleaning, maintenance, and repair. The court at page 330 appeared to agree that without the “narrowing” reference to “designed” in the law, the argument advanced by the plaintiffs would be entirely plausible: “the legislature would have achieved the meaning Plaintiffs suggest had it entirely omitted the words ‘designed to be’ from the definition. So written, subsection (2)(a)(I) would include any ‘magazine ... capable of accepting or [being] readily converted to accept’ more than fifteen rounds.” Section 4 of the bill generally bans import, sale, manufacture, transfer or receipt of an LCM manufactured after July 1, 2024, although there is an exception for importation or manufacture by or for, sale or transfer to or possession by or under the authority of, the same government entities that are exempted with respect to “prohibited firearms.” Section 4(B) prohibits persons in possession of an LCM “manufactured and purchased or transferred before July 1, 2024” from transferring the LCM after July 1, 2024. There are no exceptions. Section 4(D) requires a person who possesses an LCM “imported or manufactured under Subsection C of this section after January 1, 2025” (the governmental possession, etc. exception) to mark it in the manner prescribed by the AG before any transfer. Section 6(D) sets out the AG’s responsibilities on marking rules. As mentioned, “transfer” isn’t defined in this bill but it must mean something other than sale. The bill also bans “receipt” of an LCM made after July 1, 2024, but there is no general marking requirement regarding date, and the crime isn’t one of a “knowing” receipt – how is a person to ascertain whether the LCM’s manufacture postdates the July 1, 2024 cut-off date? Section 4(A) appears to conflict with the provision in Section 8(C), which in turn conflicts with Section 7 (certification). Section 8(C) refers to any LCM made after July 1, 2024 “that is lawfully certified within sixty days in accordance with Subsection B of this section” (a nonresident relocating to New Mexico at any time) “in which the transferee is:(1) an immediate family member of the transferor; (2) a firearms dealer or gunsmith for the purpose of lawful transfer or repair of the firearm; or (3) a person residing in another state.” Section 8(C) frankly doesn’t make much sense at all because the certification requirement doesn’t apply to LCMs, and there is a blanket prohibition in Section 4 on LCMs made prior to July 1, 2024 being transferred after July 1, 2024. C. Machine Guns/Machine Gun Attachments. The bill (starting at page 3, line 25) defines a “machine gun” as including not just the NFA definition, but any “semiautomatic firearm” that has been modified so as to “materially increase the rate of fire” or to “approximate the action or rate of fire of a machine gun.” There is similar language at page 4, line 4 for a “machine gun attachment” (bump stocks, binary triggers and mechanical/electronic accelerators, most likely). Section 5 (page 12, line 13) deals with these items, and as of July 1, 2024, imposes an almost complete ban on the import, sale, manufacture, transfer, receipt or possession, although it exempts any machine guns and machine gun attachments lawfully registered with the ATF pursuant to the NFA. (The other exemption is the standard government agencies exception.) Unlike the other provisions of this bill, a violation is not a misdemeanor but a fourth degree felony (see page 13, line 14 and Section 19). This is big concern because none of these crimes require a knowing or intentional violation. Parts or modifications that allow guns to fire more rapidly or efficiently (including those used by competitive or disabled shooters) could be prohibited by this bill depending on how “materially increase” and “approximate the action or rate of fire of a machine gun” are applied.

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