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Decision Time: No Gun Shops in Newton, or Possibly Some?
As I reported
last month, the City received an application for a gun shop to open at
709 Washington Street in Newtonville. (The application was filed in
January, though the City Council was not made aware until alarmed
residents started emailing us in mid April.) The City Council has
received hundreds of emails in opposition to a gun shop at this
location, and many people don’t want one to be able to open in any
location in the City, as evidenced by all the “Stop Gun Stores in
Newton” lawn signs proliferating.
Until now Newton had no limitations for gun store applicants, the way we do
for marijuana dispensaries, adult entertainment sites, and Keno. In
response, the Newton Law and Planning Departments moved quickly to draft
a zoning amendment that limits where a gun store may be located, and
also require that applicants receive a “special permit”, which gives the
City Council additional control over a project.
This May 6 memo summarizes research the Planning
Department conducted about gun shop restrictions elsewhere in
Massachusetts and around the country, offers five alternative zoning
scenarios, and explains their reasoning for recommending Alternative 5,
which limits the possibility of a firearm business to two areas of the
city – part of Route 9 in Chestnut Hill and around Rumford Avenue and
Riverview Avenue in Auburndale.
Note
the memo would not do what the lawn signs are saying so many Newton
residents want, i.e. “Stop Gun Stores in Newton.” It would merely limit
them to two locations. It would also allow children as young as 14 to
enter, as long as they have an adult with them (which the ordinance
defines as 18 years old; note we don't even let 18 year olds buy
cigarettes in Newton.)
As I said in a meeting on May 13,
it is clear to me that many if not most of our residents do not want a
gun store in the City at all, and certainly not where they live or shop
or where children gather. Newton is a heavily built-out city, which
means there are no areas far from residents, far from children, far from
parks. As the Planning Department stated in their May 6 memo, Newton
has “very few commercial areas and even fewer that are not immediately
surrounded by residential or other sensitive uses.”
I do not agree with the approach of identifying locations in the City
where a gun shop can open, because that means it will end up near
people who have less power or influence to oppose it. Rather I believe we should ban the sale or manufacture of guns in Newton entirely, which is why I co-docketed an ordinance to do just that (#182-21)
Short
of a full ban, Newton could pass a more restrictive zoning ordinance
than what the Planning Department is recommending, with buffer zones
such that nowhere in the City would realistically be eligible for a gun
store to open. This is the approach taken by Piscataway NJ and several
communities in California. This is also the approach taken by
conservatives in other parts of the country to limit abortion clinics,
as a prominent attorney told the Area Councils at a meeting on May 13.
Newton’s City Solicitor wrote this statement
on why she is recommending that Newton not pass a law banning the sale
of guns or use zoning to prevent a gun shop from opening, namely that
doing so “will likely be found unconstitutional” and “would not
withstand a legal challenge.” The City Solicitor’s memo says she and her
staff undertook research and spoke with other legal experts. I have
every confidence that is the case because I know our Law Department
staff to be diligent and conscientious. However it is important to keep
several things in mind.
1)
Our Law Department, as qualified as they are, are not experts in
constitutional law nor strategy. And there are very qualified and
prominent attorneys in Newton who disagree with them. I have pasted below in full an email sent to the City Council
noting that attorneys from two prominent, well-respected law firms,
Mintz Levin and Ropes & Gray, have offered to defend the City pro
bono against any Second Amendment challenge, and listing legal arguments
and precedents in our favor.
2)
For a gun ban in Newton to make its way to the Supreme Court would take
a long time and be very expensive for the plaintiff. Would a would-be
gun shop owner choose to spend money litigating this rather than merely
opening a store in a different town? Maybe, but it's not an obviously
logical decision, and in that case as the email below lays out, it is
not at all a slam dunk they would win.
The
last point I want to make is about our values. If we think that gun
violence is an epidemic, if we think guns are too easily accessible, if
we think our children have been traumatized growing up in the shadow of
Columbine and Sandy Hook and Aurora and Parkland, and as we watch our
federal and state governments do too little to rein in this carnage,
shouldn’t we take this moment to be bold and work to actually “Stop Gun
Stores in Newton”, rather than take a more timid approach of allowing
them in limited locations and just hoping no one decides to take us up
on it?
There will be a vote of the full City Council on Monday, May 17 on the Planning Department’s recommended “Alternative 5”. As I hope this email makes clear, I think we can and should pass a much more restrictive ordinance that actually prevents a gun store from opening anywhere in our City.
[One last gun-related item - I have also docketed an ordinance (#197-21)
along with most of the rest of Council to prohibit guns being brought
inside any of our municipal buildings (state law already prohibits them
in schools). I am grateful to the Law Department for their quick work in
drafting this ordinance.]
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From: Ben Clements
Date: Sun, May 16, 2021 at 3:16 PM
Dear Mayor Fuller and Members of the Council:
In
connection with your ongoing deliberations concerning the pending
proposals with respect to commercial gun establishments, below is a
detailed response to questions raised by Councilor Norton, from me,
Michael Gardener of Mintz Levin, and Josh Levy and Doug
Hallward-Driemeier of Ropes & Gray. As you know, Mintz Levin and
Ropes & Gray have offered to defend the City pro bono any Second
Amendment challenge to a potential ban and/or zoning ordinance the City
may adopt.
Thank you again for your consideration.
* * * * * *
Here
below are detailed thoughts on your questions — with apologies for the
length, but we thought it would be helpful to have all of this
information in one place.
Given the time constraints, I have not been able to review this response with all the attorneys (copied here) who signed to our
initial letter to the Council. But in light of the comment you
reference by a councilor expressing doubt about whether lawyers are
prepared to defend against a Second Amendment challenge, I have
discussed it and shared it with the lawyers from the two global law
firms that have offered to defend the City pro bono against any Second
Amendment challenge, Michael Gardener of Mintz Levin and Josh Levy and
Doug Hallward-Driemeier of Ropes & Gray, and they join in this
response. As you know, Michael and Josh are highly regarded Boston
litigators and Newton residents. Doug leads the Ropes & Gray
Appellate and Supreme Court practice, has presented arguments in every
federal circuit court of appeals, and has argued 17 times before the
U.S. Supreme Court, including his successful argument in Obergefell v.
Hodges, establishing the federal constitutional right to marriage
equality in 2015 (a case that many, at the time, argued against pursuing
for fear of losing and creating bad law).
The Current State of the law Regarding a Potential Gun Store Ban
We
understand that as of Thursday afternoon a near majority of the Council
had signed on as sponsors to your proposal to ban gun stores in Newton
(apparently due to concerns that the only zoning ordinance on the table
would allow gun stores in two areas, within very close proximity to
residences and schools, accessible by 14-year-olds, and would leave the
Council little room to vote not to approve an application meeting the
standards of the ordinance), but the Council was told on Thursday night
the Constitution does not permit a ban on gun stores in Newton. While
some lawyers believe that is what the Supreme Court might one day
conclude in the event of a challenge to the law, there does not appear
to be any applicable precedent from the US Supreme Court, the First
Circuit, the District of Massachusetts, or the Massachusetts Supreme
Judicial Court that an actual or de facto ban on gun stores in Newton
would violate the Constitution.
The most helpful precedent appears to be the Ninth Circuit’s decision in Teixeira v. Alameda County,
in which the Court rejected a would-be gun store’s claim that a firearm
ordinance precluded them from opening a gun shop anywhere in
unincorporated Alameda County. The Court’s opinion included the
following key rulings:
1. “the Second Amendment does not confer a freestanding right, wholly
detached from any customer's ability to acquire firearms, upon a
proprietor of a commercial establishment to sell firearms” and
2. "gun buyers have no right to have a gun store in a particular
location, at least as long as their access is not meaningfully
constrained.”
The
case was decided by a 9-2 vote of the full Court, with one of the most
conservative judges in the country, Judge Bybee, siding with the
majority.
With
multiple gun stores in neighboring Waltham, Weston, and Boston (not to
mention Framingham, Natick, Dedham, Malden, Woburn, etc.) there is
little danger that Newton residents have had or will have their access
to guns “meaningfully constrained,” in the absence of a gun store in
Newton.
Some
have suggested that a law that bans or effectively precludes gun stores
in a particular jurisdiction may violate the Constitution, even if guns
are readily available in nearby cities and towns. This concern stems
primarily from a decision in the U.S. District Court for the Northern
District of Illinois, Illinois Association of Firearms Retailers v. City
of Chicago, https://casetext.com/case/ill-assn-of-firearms-retailers-v-city-of-chi.
(And a subsequent unpublished decision from the Northern District of
Illinois, Koie v. Village of Norridge). (The Ninth Circuit decision
noted that gun stores were available within the same county that had
enacted the ban, but the Court’s focus was on the relative proximity of,
and resulting “meaningful access” to, existing gun stores, and the
Court went on to explain more broadly that there is “no right to have a
gun store in a particular location"). The Chicago case is not
controlling here for several reasons:
1.
The invalidated Chicago regulation banned all sales (even private) of
firearms in the entire City of Chicago. That is different than a prohibition or very tight restrictions on commercial gun stores in a small very residential city located outside of a large metropolitan city.
2. Newton is very different than
Chicago in terms of its size, primarily residential character, and
close proximity of the entire city to neighboring communities in which
gun stores are located. In this respect, Newton is closer to the
community at issue in the Alameda County case (San Lorenzo) than it is
to Chicago.
3.
The decision of a single federal judge in Chicago is not binding in
Massachusetts. And its analysis is not particularly persuasive given
that it applied a stricter Second Amendment scrutiny than has been
adopted by the First Circuit or the Massachusetts Supreme Judicial
Court.
4.
The Chicago district court’s suggestion that the Second Amendment
creates a right to have a firearms dealer in every legally separate
jurisdiction makes no sense given the vast differences in size and
character of various legally separate jurisdictions, including, for
example, numerous separately incorporated jurisdictions across the
country (and in Massachusetts) that have less than 20 people in them.
(To be clear, the court indicated that had Chicago demonstrated a
sufficiently compelling need for its ban, it might have been upheld, but
imposed such a high level of scrutiny that it would be quite difficult
for Newton to meet the test imposed in that case).
5.
To support its separate jurisdiction approach, the Chicago decision
equated the treatment of gun stores under the Second Amendment with the
treatment of book stores
under the First Amendment. That approach has not been adopted here and
the analogy is unpersuasive. Aside from the common sense differences
between books and guns (40,000 gun deaths per year), as the Ninth
Circuit explained in the Alameda County case, the analogy doesn’t fit
legally; people have a direct First Amendment right to sell books, while
the only constitutional rights at issue with respect to gun shops are
the rights of persons wishing to exercise their right to obtain and
possess a firearm.
Concern About Creating “Bad Law”
Some
oppose a ban on gun stores or even an ordinance that might make it
particularly challenging to open a gun store in Newton for fear that
such a strict ordinance could lead to the creation of bad law in the
event of a successful challenge. At the state level, Massachusetts has
among the strongest gun safety laws in the country and, as a result,
consistently has the lowest or near lowest gun fatality rates in the
country. Several of those laws have been enacted or expanded since the
Supreme Court first recognized an individual right to possess arms in
2008, often over the objections of advocates who believed they would
lead to challenges and bad law. To date, the Massachusetts strict gun
laws have been consistently upheld over Second Amendment challenges by
the First Circuit and the Supreme Judicial Court.
The
First Circuit (and the District of Massachusetts) is a favorable
jurisdiction on Second Amendment issues. In the long run, there is a
bigger risk of creating bad law if places like Newton refrain from
adopting reasonable safety regulations for fear of an expanding Second
Amendment jurisprudence, while leaving the law to be developed in more
conservative jurisdictions like the Seventh Circuit (where the Chicago
decision was issued).
The Cambridge Gun Store Ban
In
addition to our strong laws at the state level, our neighboring city of
Cambridge effectively banned gun stores in 1986, by providing: "Any
person who sells, rents or leases a handgun shall be punished by a fine
of not more than three hundred dollars. Each such sale, rental or lease
shall constitute a separate offense." Ordinance No. 9.116.040. https://library.municode.com/ma/cambridge/codes/code_of_ordinances?nodeId=TIT9PUPEMOWE_CH9.16WE
The Cambridge ordinance exempted holders of gun dealer licenses issued
prior to the ordinance's enactment (as well as private sales conducted
in accordance with state law) (Ordinance No. 9.16.050), but, according
to news reports, the last such licensee and the last store to sell
firearms in Cambridge closed in May 2012. https://www.bostonglobe.com/metro/2012/05/03/last-gun-shop-cambridge-close-its-doors/c27WWBXjvKp7Z0cSU2dm4K/story.html.
We have found no record of this ordinance being challenged and it
appears in the online records of the Cambridge Code of Ordinances
(linked above).
Providing a Fallback Regulation to a Gun Store Ban
We
understand that at the Thursday meeting, Council Gentile raised the
possibility of enacting a gun store ban ordinance with a fallback
provision specifying that if a court were to find the ban
unconstitutional rendering it unenforceable, then backup provisions of
the ordinance would apply requiring certain buffers and a special permit
and two thirds vote requirement, but the Council was told that this
could not be done. We are not aware of any reason that this could not be
done; as a general matter, legislative bodies can rely and have relied
on such fallback provisions to provide some certainty in the event of a
successful constitutional challenge. At least two Supreme Court
decisions provide support for the use of such a fallback provision as
urged by Councilor Gentile:
1.
Bowsher v. Synar, 478 U.S. 714 (1986). Congress included in the
Balanced Budget Act a "fallback" provision to take effect "in the event
that [the statute's reporting procedures] are invalidated." The Supreme
Court did in fact invalidate the reporting procedures, but did not
hesitate to implement the fallback provision, stating: "our holding
simply permits the fallback provisions to come into play.”
2.
Federal Election Commission v. Wisconsin Right to Life, Inc. , 551
U.S 449 (2007). Congress included in the Bipartisan Campaign Reform Act
a "backup" definition (of "electioneering communication") to be used if
the primary definition was held unconstitutional. In a divided
opinion, in which the Court struck down the primary definition, the
majority and dissent both discussed the backup definition and neither
suggested that it was invalid or even problematic.
State
legislatures have also used fallback or backup provisions particularly
in the context of abortion laws. For example, in 2019, Missouri
included a "ladder" ban on abortion prior to a particular number of
weeks. The statute provided that if the stricter time periods were
declared unconstitutional, the next less strict one would go into
effect. A federal district court judge struck down all of the deadlines
finding that even the least strict was unconstitutional. But there was
no suggestion that the legislative strategy of providing backups to
take effect in the event the stricter provisions were held invalid was
itself problematic or invalid.
While
the specific approach of providing "fallback" provisions may not be
very common, it is quite similar to the use of severability clauses,
which provide that if part of a law is struck down the other provisions
will remain in effect. And that approach is routinely adopted by
legislative bodies and honored by the courts.
We
recognize that the state law requires specific procedures, including
public hearing, be followed before enacting any zoning ordinance. But
if the Council were to adopt an ordinance with a ban and backup zoning
and permitting requirements, those procedures would be completed now and
the backup zoning provisions would go into effect as soon as enacted;
they simply would have no application unless there were a successful
challenge to the ban.
In
the absence of a specific local authority prohibiting this approach, if
the Council were to enact a ban, it would seem prudent to include such a
fallback provision and doing so may alleviate concern if a ban is
enacted, but successfully challenged, the City will be left with no
regulation.
Summary
The
issue is far from settled, but under current law, there are legal
arguments to defend a direct or de facto city-wide ban on gun stores in
Newton. Short of a ban, the case would be even stronger for a much
stricter ordinance, both in terms of buffer zones and public safety
requirements, than that currently before the Council.
Thank
you, Emily and to all on this email, for all of your efforts on this
issue. If anyone has any different or additional information or views,
please chime in.
Sincerely,
Ben Clements
Michael Gardener
Doug Hallward-Driemeier
Josh Levy
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