Foster Swift Municipal Law News
April 14, 2017
Although the Michigan Courts have not answered this question, one federal appeals court has, and the answer is “maybe”.
A county ordinance in California requires a conditional use permit for new gun shops. That ordinance forbids gun shops within 500 feet of a residential district, schools, day care operations, other gun shops, liquor stores and bars. An applicant sought a permit for a gun shop but was denied because it would fall within 500 feet of a disqualifying property. He then brought an action challenging the ordinance on the basis that the 500 foot rule entirely precluded gun shops in the county.
Since the ordinance specifically identified gun shops in its regulations, the Ninth Circuit held that it had to evaluate whether the regulation of gun shops was constitutional in light of the Second Amendment. The Court stated that “[o]ur forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and bear arms.” Quoting Thomas Jefferson, the Court noted that “our citizens have always been free to make, vend, and export arms.” As a result, the Court concluded that if “the right of the people to keep and bear arms is to have any force, the people must have the right to acquire the very firearms they are entitled to keep and to bear.”
Based on this reasoning, the Court reversed the lower court’s decision. It remanded, or sent the case back, to the lower court to reevaluate the County’s ordinance requirements. The Ninth Circuit determined that the lower court should have evaluated the County’s ban of new gun stores with a “strict scrutiny” standard. Strict Scrutiny means that the ordinance must advance a compelling governmental interest, and must be narrowly tailored to achieve that interest. Most ordinance provisions, unless they impact Constitutional rights, only have to be rationally related to a governmental interest. Here, the County must provide more justification for the regulation because the ban involves the constitutional right to bear arms under the Second Amendment. For example, the majority ruled that the lower court erred in dismissing the suit without requiring the County to present evidence to support its assertions that gun stores increase crime nearby, or harm the aesthetics of a neighborhood.
The opinion states that “[t]he right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.” It further expanded that “just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of people to keep and bear arms is not undermined by hostile regulatory measures.”
If you have an ordinance that regulates gun shops or the sale of firearms, it may be subject to scrutiny under the Second Amendment. Even though this decision is not binding in Michigan Courts, it can be cited as persuasive authority. Our lawyers have expertise in this area of law and can guide you through this complex analysis.
In This Issue
- Michigan’s New MIP Law Makes First Offense a Civil Infraction
- Nuts and Bolts of the New Medical Marihuana Facilities Licensing Act
- How to Obtain Best Value for Government Projects
- Monitoring Employee Conduct Outside of the Workplace