By Tanya Metaksa
What’s New—President Biden’s DOJ and BATFE on the Friday before Labor Day presented a new rule, docket number ATF 2022R-17 and now the proposed rule is published. 90 days to comment.California—The following bills are on their way to Gov. Newsom for his signature: AB28, a bill that adds an excise tax of 11% on all firearms, firearms precursor parts and ammunition, AB301, adding the acquisition of body armor as another basis for issuing a GVRO, gun violence restraining order, and AB1089, expanding current ban on making firearms. And there are more awaiting final actions. New Mexico: On Sept. 9 Governor Michelle Lujan Grisham declaring a public health emergency saying no constitutional right is absolute and that in an emergency, she can suspend those rights. As a result, she has banned all concealed and open carry in Albuquerque and Bernalillo Counties for the next month or possibly longer effective immediately in the state. No firearms are allowed on any state property including schools, parks and other places where children gather. The Public Health Order can be found here. On Saturday, Sept. 9, two lawsuits were filed in US District Court for the District of New Mexico.
Biden Administration
BATFE proposed rule published: new “Definition of ‘Engaged in the Business’ as a Dealer in Firearms”
NPRM 2022R-17
Using the Bipartisan Safer Communities Act of 2022 as a mandate, BATFE on Sept. 9 published the new rule. According to the press release the proposed rule would require anyone who sells firearms online, at gun shows or anywhere, even from a private collection, to obtain an FFL. Public comments may be made by mail or submitted to the Federal eRulemaking Portal: www.regulations.gov.
Legislatures/Local communities
The following states are currently in session: California, Indiana, Michigan, North Carolina, Pennsylvania, New Jersey, New York, Massachusetts, and Wisconsin. States still in session but in recess are: Alaska, Georgia, Illinois, Iowa, Maine, Minnesota, Nebraska, Kansas, New Hampshire, Oklahoma, South Carolina, and Vermont. All the rest have adjourned for 2023.
California—These bills are on their way to Gov. Newsom for his signature: AB28, a bill that adds an excise tax of 11% on all firearms, firearms precursor parts and ammunition, AB301, adding the acquisition of body armor as another basis for issuing a GVRO, gun violence restraining order, and AB1089, expanding current ban on making firearms . The following bills have been amended, passed the Senate and sent back to the Assembly for concurrence: AB97, requiring the CA DOJ to collect and report on prosecutions of misdemeanor offenses relating to unserialized firearms and AB1483, a one gun a month restriction on private party sales/transfers. The following bills are awaiting final votes in the Senate: AB455, adding pretrial diversion as another basis denying firearms possession, AB574, requiring an affidavit from prospective gun buyers that they have confirmed possession of all other guns owned within the past 30 days, AB732, expands current federal law regarding the relinquishing of firearms upon conviction of a prohibiting offense, and AB733, prevents state and local government selling surplus firearms, ammunition and body armor; are at second reading in the Senate. The following bills are on the Senate Consent Calendar and ordered to third reading in the Senate: AB301, adds the acquisition of body armor as another basis for issuing a GVRO, gun violence restraining order; and AB1598, requiring firearms dealers to provide a DoJ pamphlet with every sale. Governor Gavin Newsom’s promotion of a constitutional amendment to remove the 2nd Amendment has found fertile ground in the legislature. The Senate adopted SJR-7 and on September 7 was referred to the Assembly Public Safety Committee.
The following bill is still in the Senate Appropriations Committee: AB1133, mandating more training for carry permit applicants, was amended in the Senate, and then sent to Senate Appropriations to be held under submission on Sept. 1. The following bill is on the Senate Consent Calendar and ordered to third reading in the Senate—AB1598, requiring firearms dealers to provide a DoJ pamphlet with every sale. Bills that have passed the Senate and are on the Assembly calendar for Third Reading: SB368, A grab bag of onerous restrictions; and SB452, banning all semi-automatic handguns without micro-stamping technology.
New Mexico: On Sept. 9 Governor Michelle Lujan Grisham, declaring a public health emergency, banned all concealed and open carry in Albuquerque and Bernalillo Counties for the next month, or possibly longer, effective immediately. In reality the measure is tied to an increase of violent crime that is currently exceeded by those two counties but could affect the entire state. The Public Health Order can be found here. No firearms are allowed on state property including parks and other places where children gather. She will review the order in 30 days to see if it needs to be continued. Of course, there are exceptions: private property, licensed firearms dealers, firing ranges or shooting competitions. If someone is going to any of these places, the firearms must be stored in a locked container. FFLs will be subject to monthly state inspections, according to the Abqjournal.com.
Additionally, as of Saturday evening Bernalillo County District Attorney Sam Bregman, Albuquerque Mayor Tim Keller and Albuquerque Police Chief Harold Medina have all announced they wouldn’t enforce the Governor’s order.
“‘As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional,’ said Bregman, the top prosecutor in the Albuquerque area.”
“There is no doubt that we are dealing with an out-of-control crime crisis in the city of Albuquerque, but this order does nothing to curb or address crime. There are countless ways the governor could address this crisis that would be impactful and meaningful. This is nothing more than a pathetic public relations stunt.”
— Shaun Willoughby, president of the Albuquerque Police Officers Association
“The governor made it clear that state law enforcement, and not APD, will be responsible for enforcement of civil violations of the order. Our officers at APD will continue to focus on the enforcement of criminal laws and arresting the criminals who are driving violent crime in the city.”— APD Chief Harold Medina in a message to officers.
“We welcome meaningful solutions and additional resources to fight crime in Albuquerque. APD is not responsible for enforcing the governor’s ban, our officers will continue to enforce all criminal laws, combat gun violence, and push for needed justice in our city.”— Albuquerque Mayor Tim Keller
“She knew her order was illegal but did it anyway, just like the lawbreakers in our state. Criminals won’t be affected by more laws since they don’t follow our laws now nor are they held responsible for breaking any of them.”— Steve Pearce, chairman of the Republican Party of New Mexico.
“I am calling on Gov. Lujan Grisham to rescind her overreach of governmental powers that suspended the rights of law-abiding citizens. The Supreme Court has declared that citizens have a constitutional right to carry firearms. The governor does not get to override neither the U.S. Constitution, New Mexico State law, nor the Supreme Court.”—Dan Lewis, Albuquerque city councilor.
In addition, Sheriff John Allen issued a statement: “However, as the elected Sheriff, I have reservations regarding this order. While I understand and appreciate the urgency, the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold. I am wary of placing my deputies in positions that could lead to civil liability conflicts, as well as the potential risks posed by prohibiting law-abiding citizens from their constitutional right to self-defense.”
There will be a Press Conference Livestream 10 a.m. (Mountain Time) on Facebook Live concerning the Public Health Order on Gun Violence.
Here come the lawsuits: On Sept. 9, two federal lawsuits were filed: 1. NAGR v. Grisham was filed US District Court for the District of New Mexico. The Plaintiffs pray that the Court enter a declaratory judgement pursuant to 28 U.S.C. § 2201 that the Carry Prohibition is unconstitutional on its face or as applied to the extent it prohibits law-abiding adults from engaging in Plaintiff’s Proposed Conduct described in paragraph 5; Enter preliminary and permanent injunctive relief enjoining Defendants … from enforcing the Carry Prohibition;” 2. DONK v. Grisham was filed in the US District Court for the District of New Mexico by Gun Owners Foundation: Plaintiffs request an immediate Temporary Restraining Order be issued on an emergency basis, followed by a preliminary and then permanent injunction.
Additionally, as of Saturday evening, Bernalillo County District Attorney Sam Bregman, Albuquerque Mayor Tim Keller and Albuquerque Police Chief Harold Medina have all announce they wouldn’t enforce the Governor’s order.
“‘As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional,’ said Bregman, the top prosecutor in the Albuquerque area.”
According to The Reload, “Republicans in both houses of the New Mexico legislature also announced they plan to file their own federal case to stop the ban. The National Rifle Association and its state affiliate implied they may file lawsuits seeking damages of up to $2 million per person affected by the order.”
The weekly Judicial update is now published on Wednesdays, as the courts have become a virtual hotbed of activity since the Bruen decision.
