We hear from the Sacramento Press that, “a new law governing churches will be proposed at Tuesday’s City Council meeting, and while proponents say it will give the city a chance to vet houses of worship before they open, opponents say it undermines the First Amendment.” Anyone see a problem? . . .
“We want reasonable regulations,” (City Councilman Kevin) McCarty said. “This doesn’t even regulate them. It just regulates where they’re located.”
Except, of course, it isn’t churches they’re really talking about here. If a city council were to actually try something like this with churches, the ACLU et al. would be all over them like stink on shit white on rice. But for some reason, proposing ways to regulate where gun stores can locate isn’t a problem at all.
I think Gene Hoffman of CalGuns said it best:
“The simple question is can you place a bookstore there?” Hoffman said Thursday. “If you can place a bookstore there, you can place a gun store there. Otherwise it’s a violation of the Second Amendment.”
Or at least it will be a violation of the Second Amendment once that amendment is treated the same as the other enumerated rights instead of like a bastard at a family reunion…where everyone knows he’s there, but no one wants to talk about him.
Many communities already have ordinances that restrict where liquor stores, “adult” businesses and others can locate. This will follow in those foot steps.
The counter argument is that the 21st Amendment gives the states specific powers concerning alcohol.
“Anyone see a problem?”
I see a potential one with your picture if someone could enter that gun store and load a long gun with the ammunition stored below it. The stores I frequent separate guns from ammunition.
Otherwise, I have a “restraint of trade” type of problem with restricting the location of any commercial establishment in a commercially-zoned area. (The poll attached to the article, while not scientific, is running over 95% pro gun store, which is a good sign.) Mr. Hoffman also addresses the point well.
Neutral zoning laws can restrict where churches are located. Same with gun stores. Even the highest levels of scrutiny allow that.
For example, if your zoning law says that no building can be built in the zone that has a large parking lot, or has a certain occupancy, this would pass constitutional muster. They can’t say you’re not allowed to pray there, but they can limit the size and design of the building. Likewise, they can enforce building codes.
It is perfectly reasonable to say that a business cannot be located in an area. They can also limit the nature of the business. For instance, if the shop includes a range, they can say the noise and pollutants are excessive for the area.
The courts have not ruled on how government can limit the second amendment. I doubt that this would be disallowed.
The controlling case is Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). It gives a lot of leeway to zoning authorities. Like Skyler, I believe that a facially neutral ordinance would pass Constitutional muster.
My comment disappeared. To sum it up, Skyler is correct. According to the controlling law, Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926), a facially-neutral zoning ordinance would likely pass Constitutional muster.
Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926) says that you’re correct.
All your comments showed up. I think the hamsters powering the server took a nap.
Annoying churches and gun shops are a blight on the otherwise scenic urban tapestry of 711’s and McDs.
Hmmm… guns and zoning. Two of my favorite subjects.
OK, so it’s a bit more complicated than you make it seem. Churches receive extra protection from a federal law passed in 2000: The Religious Freedom and Institutionalized Person’s Act of 2000 (aka “RLUIPA”). Court cases interpreting RLUIPA are all over the map, and entire books have been written on this law. Nonetheless, as a generalization, it’s safe to say that churches can be regulated to a certain extent – particularly with regard to size, noise, traffic impacts, building height, etc. On the other hand, outright prohibitions of any size church (in a residential neighborhood, for example) is prohibited by RLUIPA.
Since gun stores don’t get the same sort of protections as RLUIPA provides to churches, the Church analogy is faulty.
Having said that, since zoning laws are in degradation of property rights, there are some minimal standards of judicial scrutiny that apply to these types of laws. Basic Euclidian (exclusionary) zoning regulations were first proposed and approved by SCOTUS in the 1920s. SCOTUS held that all zoning regulations must have a purpose that is ground in the public health, safety, or welfare (aesthetics was added later – in the 1950s or so). Depending on the justification provided by the governing body for the ban, a zoning law singling out gun shops could run afoul of this basic nexus requirement.
Admittedly, the standard of review is quite low: lawsuits would be reviewed under the deferential “rational basis” standard of review. But, depending on the political views of the judge that gets assigned to the case, it might be possible to overturn a zoning ordinance that outright bans gun stores – particularly if the allowed commercial uses in the zone have similar impacts.
Someone mentioned adult businesses as an example of a land use that can be successfully targeted for differential zoning treatment. Often, the government is able to justify their bans of adult (read: “sex”) businesses based on a record that shows that these types of businesses cause negative secondary effects (mostly prostitution and drug dealing). It’s a harder case to find negative secondary effects for gun shops (Too many OFWGs wearing unfashionable clothes in the neighborhood?!). The facts of the individual case will matter- if the City can build a record to document problems (negative secondary effects) associated with guns stores, its task of justifying the regulation becomes easier. Incidentally, most states used to have a presumption of validity of legislative zoning enactments, which essentially puts the burden on the person challenging the regulation. In Oregon, this presumption has largely been done away with – but I’m not sure if it still exists in other states.
As for the Second Amendment, I’m not so sure that the guy from Cal guns quoted above is correct. It is not at all apparent to me how the Second Amendment exempts retailers of guns from zoning regulations. Indeed, some dim-witted judges have gone so far as to say that the 2AD only protects home defense. See, e.g., Moore v. Madigan, 2012 WL 344760, No. 11–cv–03134 (C.D. Ill. Feb. 3, 2012) (Fed. Dist. Ct upheld the constitutionality of Illinois’ “Unlawful Use of Weapon” statutes, holding that the core Second Amendment right only exists inside the home.
I suppose if the ban were broad enough (covering the entire state or Country, for example) then the 2AD argument starts to have some appeal. By analogy, the 2AM protects bullets to the same extent as it protects guns, which suggests that access to firearms is also protected. But, it would seem that a typical zoning ordinance is not going to create a de-facto ban on the availability of firearms or ammunition. Again, the facts of the individual case become crucial to the outcome.
Oregon has nipped this problem in the bud at the state level, by essentially prohibiting cities from passing laws related to guns. It’s been a while I since reviewed the Oregon law so I don’t recall specifically the extent to which it would apply to zoning laws, but I think it provides the blueprint for how to stop cities from passing these types of laws. These forms of “issue-preemption” statutes good best where the state legislature is more conservative than the large metro areas of the state. They are a good way to control cities that are often run by stupid liberals.
I don’t see a problem here because we all know that the 2A or the constitution are useless and have no meaning in COMMIEFORNIA(along with a handful of other useless COMMIE states that we should turn over to China where they would be right at home).
How about you open a Church with a gun shop attached to it???
This way if the city turns you down the headlines would read city bans church from opening! Course you tell them armed defense is part of your religion..
See how that works!!!
oohhh they would get in so much trouble… lol
I really dislike that gun shops are usually relegated to less-nice areas of town because of crap like this. Of the three stores I frequent with regularity, one is on the wrong side of the tracks, one is in the back of a light industrial area, and one is out in the sticks.
Oh, Gander Mountain has a nice indoor range, but they’re 30 minutes away, and they get TWENTY FIVE DOLLARS AN HOUR. Hey, at least it includes targets.
I see your potential problem. Not even a trigger lock in sight. I realize it must be a behind the counter thing, but under the right circumstances, the criminal could arm themselves way too fast.
Hmmm… guns and zoning. Two of my favorite subjects.
OK, so it’s a bit more complicated than you make it seem. Churches receive extra protection from a federal law passed in 2000: The Religious Freedom and Institutionalized Person’s Act of 2000 (aka “RLUIPA”). Court cases interpreting RLUIPA are all over the map, and entire books have been written on this law. Nonetheless, as a generalization, it’s safe to say that churches can be regulated via zoning to a certain extent – particularly with regard to building size, noise, traffic impacts, building height, etc. On the other hand, outright prohibitions of any size church (in a residential neighborhood, for example) is prohibited by RLUIPA.
Since gun stores don’t get the same sort of protections as RLUIPA provides to churches, the Church analogy is faulty.
Having said that, since zoning laws are in degradation of property rights, there are some minimal standards of judicial scrutiny for these types of laws. Basic “Euclidian” (i.e. exclusionary) zoning regulations were first proposed and approved by SCOTUS in the 1920s. Ralph provides the citation for the Euclid case, above. In Euclid, SCOTUS upheld a general zoning scheme as a valid exercise of the police power, but held that all zoning regulations must have a purpose that is ground in the public health, safety, or welfare (aesthetics was added later – in the 1950s). Thus, depending on the justification provided by the governing body for the gun store ban, the zoning law singling out gun shops could run afoul of this basic nexus requirement. Maybe…. YMMV, depending on your jurisdiction.
Admittedly, the standard of review is quite low: lawsuits would be reviewed under the deferential “rational basis” standard of review. And I think some jurisdictions still afford the local government a presumption of legislative validity – which essentially shifts the burden to the challenger. But, depending on the facts (and let’s face it, political views of the judge that gets assigned to the case) it might be possible to overturn a zoning ordinance that outright bans gun stores – particularly if the allowed commercial uses in the zone have similar / identical impacts. The local government will have a stronger case if it can document specific problems caused by the gun business that would tend to be solved by excluding them from the zone at issue.
Someone mentioned adult businesses as an example of commercial uses that can be successfully targeted for differential zoning treatment. Often, the government is able to justify their bans of adult (read: “sex”) businesses based on a record that shows that these types of businesses cause negative secondary effects (mostly prostitution and drug dealing). In my estimation, it would be a harder case to find negative secondary effects for gun shops (What? Too many OFWGs wearing unfashionable clothes in the neighborhood?!?). Again, these cases come down to the facts of each individual case.
As for the Second Amendment, I’m not so sure that the guy from Cal guns quoted above is correct. It is not at all apparent to me how the Second Amendment exempts retailers of guns from zoning regulations. Indeed, some dim-witted judges have gone so far as to say that the 2AD only protects home defense. See, e.g., Moore v. Madigan, 2012 WL 344760, No. 11–cv–03134 (C.D. Ill. Feb. 3, 2012) (Fed. Dist. Ct upheld the constitutionality of Illinois’ “Unlawful Use of Weapon” statutes, holding that the core Second Amendment right only exists inside the home.
I suppose if the ban were broad enough (covering the entire state or Country, for example) then the 2AD argument starts to have some appeal. By analogy, the 2AM protects bullets to the same extent as it protects guns, which suggests that access to firearms is also protected. But, it would seem that a typical zoning ordinance is not going to create a de-facto ban on the availability of firearms or ammunition. Again, the facts of the individual case become crucial to the outcome.
Oregon has nipped this problem in the bud at the state level, by essentially prohibiting cities from passing laws related to guns. It’s been a while I since reviewed the Oregon law so I don’t recall specifically the extent to which it would preempt local zoning laws, but I think it provides the blueprint for how to stop cities from passing these types of laws. These forms of “issue-preemption” statutes work best where the state legislature is more conservative than the large metro areas of the state.
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