A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases:

(1) in the person's residence or on real property belonging to him as owner, lessee, tenant or licensee;

(2) in a private automobile or other private means of conveyance, for lawful protection of the person's or another's person or property;

(3) by a peace officer in accordance with the policies of his law enforcement agency who is certified pursuant to the Law Enforcement Training Act [Chapter 29, Article 7 NMSA 1978];

(4) by a peace officer in accordance with the policies of his law enforcement agency who is employed on a temporary basis by that agency and who has successfully completed a course of firearms instruction prescribed by the New Mexico law enforcement academy or provided by a certified firearms instructor who is employed on a permanent basis by a law enforcement agency; or

(5) by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act [Chapter 29, Article 19 NMSA 1978].

B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.

C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-7-2, enacted by Laws 1963, ch. 303, § 7-2; 1975, ch. 134, § 1; 1985, ch. 174, § 1; 2001, ch. 219, § 13.

Cross references. — For right of people to bear nonconcealed arms, see N.M. Const., art. II, § 6.

For the department of public safety, see 9-19-4 NMSA 1978.

For right of sheriffs to carry concealed arms, see 4-41-10, 4-41-10.1 NMSA 1978.

For sentencing for misdemeanors, see 31-19-1 NMSA 1978.

The 2001 amendment, effective July 1, 2001, inserted Paragraph A(5).

The 1985 amendment substituted "in accordance with the policies of his law enforcement agency who is certified pursuant to the Law Enforcement Training Act; or" for "in the lawful discharge of his duties" in Subsection A(3) and added Subsection A(4).

Pocketknife. — An ordinary pocketknife is not a per se deadly weapon, without regard to its actual or intended use. State v. Nick R., 2009-NMSC-050, 147 N.M. 182, 218 P.3d 868.

Intended use of weapon. — Where the child worked in the child's father's furniture store; the father supplied all employees with pocketknives for opening boxes at work; one day at school, the child felt something in the child's pocket and pulled it out to look at it; and the object was a pocketknife the child had been using at work the day before when the child had been wearing the same pair of pants, the child was entitled to a jury determination of whether the child intended to carry the pocketknife as a deadly weapon. State v. Nick R., 2009-NMSC-050, 147 N.M. 182, 218 P.3d 868.

Constitutionality. — This section does not violate equal protection on the basis that it impermissibly distinguishes between rich and poor, in that homeowners and vehicle owners may properly conceal weapons whereas poor people do not own a residence or vehicle in which to conceal a weapon. State v. McDuffie, 1987-NMCA-077, 106 N.M. 120, 739 P.2d 989.

Legislative intent of Subsection A(2) — The legislature, in enacting Subsection A(2) of this section, was aware of the inherent characteristics of firearms, but nevertheless concluded that lawfully carried firearms do not present an unreasonable risk of harm to persons in the vicinity of the firearm. State v. Garcia, 2004-NMCA-066, 135 N.M. 595, 92 P.3d 41, cert. granted, 135 N.M. 566, 92 P.3d 12, rev'd on other grounds, 2005-NMSC-017, 138 N.M. 1, 116 P.3d 72.

When object "deadly weapon". — Under this section, any object, even if manufactured for an innocent, nonviolent purpose, may be a deadly weapon, if it has a potential violent use and if, under the surrounding circumstances, the purpose of carrying the object was for use as a weapon. State v. Blea, 1983-NMCA-089, 100 N.M. 237, 668 P.2d 1114.

Peace officers. — None of the officers named in Laws 1891, ch. 63, § 3 (former 40-17-9, 1953 Comp.), providing when peace officers might carry weapons, had any more right to carry weapons than a private citizen, except when the same was done in the proper and necessary discharge of official duties. Guyse v. Territory, 1893-NMSC-022, 7 N.M. 228, 34 P. 295 (decided under prior law).

Carrying arms while traveling. — The word "travelers" in Laws 1887, ch. 30, § 9 (former 40-17-8, 1953 Comp.), providing that arms might be carried while traveling, did not include a ranch owner who made daily trips of less than ten miles to his ranch; nor could it have included one who had reached his objective before the homicide. State v. Sedillo, 1918-NMSC-105, 24 N.M. 549, 174 P. 985 (decided under prior law).

Fugitive from justice was not a "person traveling" under Laws 1887, ch. 30, § 9 (former 40-17-8, 1953 Comp.), and was therefore not permitted to carry arms. State v. Starr, 1917-NMSC-092, 24 N.M. 180, 173 P. 674, writ of error dismissed, 254 U.S. 611, 41 S. Ct. 61, 65 L. Ed. 437 (1920) (decided under prior law).

Statute inapplicable to murder case. — Statute pertaining to carrying weapon upon one's "landed estate" had no bearing in a murder case where accused pleaded self-defense, and testimony thereunder was properly excluded. State v. Martinez, 1929-NMSC-040, 34 N.M. 112, 278 P. 210.

Exception added by Concealed Handgun Act. — Under this section, the Concealed Handgun Carry Act does no more than add another exception to the general prohibition against carrying concealed weapons: carrying with a concealed handgun license. State ex rel. New Mexico Voices for Children, Inc. v. Denko, 2004-NMSC-011, 135 N.M. 439, 90 P.3d 458.

Instruction properly refused in burglary case. — Offense of unlawfully carrying a deadly weapon is neither a degree of burglary, nor the higher degree of aggravated burglary, and the trial court did not err in refusing to submit to the jury the offense of unlawfully carrying a deadly weapon as a lesser included offense. State v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534, 484 P.2d 754, and denial of post-conviction relief affirmed, 1971-NMCA-184, 83 N.M. 393, 492 P.2d 1010.

Evidence of crime. — Evidence tending to establish that defendant was armed with a loaded .38 caliber pistol concealed on his person was evidence tending to establish crime hereunder. State v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534, 484 P.2d 754, and denial of post-conviction relief affirmed, 1971-NMCA-184, 83 N.M. 393, 492 P.2d 1010.

Probable cause to arrest. — Sight of pistol in defendant's pocket gave arresting officer all the probable cause needed to make an arrest, regardless of whether the weapon later was found to be unloaded. Ramirez v. Rodriguez, 467 F.2d 822 (10th Cir. 1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1518, 36 L. Ed. 2d 185 (1973).

There was probable cause to arrest the defendant for carrying a concealed weapon, where his belligerent behavior had led to a police officer's request to step out of his car and the officer was justified in performing a patdown search after seeing another weapon fall out of the vehicle when defendant opened the door. United States v. Henning, 906 F.2d 1392 (10th Cir. 1990), cert. denied, 498 U.S. 1069, 111 S. Ct. 789, 112 L. Ed. 2d 852 (1991).

Reasonable grounds of belief. — Where officer was told that man who assaulted deceased had gone into building where he subsequently found defendant wearing a coat which appeared to have bloodstains on the right sleeve, and he saw butt of a pistol protruding from defendant's pants pocket which had been concealed until the coat was opened, under the circumstances the officer had reasonable grounds to believe that defendant was unlawfully carrying a deadly weapon. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986.

Tort liability of parents. — Absent knowledge on part of parent that child of 13 years was indiscreet or reckless in handling of firearms, mere keeping of a loaded gun on premises, and leaving the child there alone, did not make the parent liable for torts committed by the minor. Lopez v. Chewiwie, 1947-NMSC-061, 51 N.M. 421, 186 P.2d 512.

No duty on "Saturday night special" manufacturers not to sell. — In the area of firearm manufacture and sale, the New Mexico legislature, while imposing certain restrictions, has not seen fit to make such distribution per se unlawful and in the absence of any legislative action, or specific guidance from the New Mexico courts, the court held, in a case involving a "Saturday night special" used to kill plaintiff's husband, that it would not impose a "duty" upon manufacturers of firearms not to sell their products, merely because such products have the potential to be misused for purposes of criminal activity. Armijo v. Ex Cam, Inc., 656 F. Supp. 771 (D.N.M. 1987), aff'd, 843 F.2d 406 (10th Cir. 1988).

Demonstration of switchblade to jury held proper. — Where a defendant was charged with unlawful possession of a switchblade, the trial court did not err in permitting a demonstration of how the knife worked. The issue for the jury in this case was how the knife could be opened. Therefore, the officer's demonstration was properly allowed over the objection made at trial. State v. Riddall, 1991-NMCA-033, 112 N.M. 78, 811 P.2d 576, cert. denied, 112 N.M. 21, 810 P.2d 1241.

Sufficiency of evidence. — Where a defendant was charged with carrying a concealed deadly weapon, the prosecution was not required to prove that the knife could actually be used to inflict great bodily harm; the prosecution needed to prove only that a butterfly knife was a switchblade. There was sufficient evidence that the knife carried by defendant was a switchblade as defined in 30-7-8 NMSA 1978. State v. Riddall, 1991-NMCA-033, 112 N.M. 78, 811 P.2d 576, cert. denied, 112 N.M. 21, 810 P.2d 1241.

Applicability to school security force. — Members of a security and patrol force composed of regular full-time employees of the Albuquerque public school system to guard school buildings and property could not be properly described as peace officers and must operate in compliance with the state statutes restricting possession and use of deadly weapons. 1970 Op. Att'y Gen. No. 70-87 (unofficial opinion issued to superintendent of Albuquerque public schools).

Law reviews. — For article, "The Right (?) to Keep and Bear Arms," see 27 N.M.L. Rev. 491 (1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Weapons and Firearms §§ 8 to 20.

Firearm used as bludgeon as a deadly weapon, 8 A.L.R. 1319.

Offense of carrying weapon on person as affected by place where defendant was at the time, 73 A.L.R. 839.

Forfeiture of property for unlawful use before trial of individual offender, 3 A.L.R.2d 738.

Offense of carrying concealed weapons as affected by manner of carrying or place of concealment, 43 A.L.R.2d 492.

Scope and effect of exception in statute forbidding carrying of weapons, as to person on his own premises, 57 A.L.R.3d 938.

What constitutes "dangerous weapon" under statutes prohibiting the carrying of dangerous weapons in motor vehicle, 2 A.L.R.4th 1342.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

What constitutes a "bludgeon," "blackjack" or "billy" within meaning of criminal possession statute, 11 A.L.R.4th 1272.

Validity of state statute proscribing possession or carrying of knife, 47 A.L.R.4th 651.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Propriety of imposing consecutive sentences upon convictions, under federal statutes, of unlawful receipt, transportation, or making and possession of same firearm, 55 A.L.R. Fed. 633.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 A.L.R. Fed. 347.

94 C.J.S. Weapons §§ 3 to 23.