Towns Create Gun-Store Free Zones, Confident Constitution Is on Their Side

The Trace – by Alex Yablon

Officials in New Jersey fed up with federal inaction are flexing policy muscles rarely used to regulate gun dealers: local zoning codes that effectively ban firearm stores. To give the crackdown constitutional cover, they took cues from a recent federal court decision on the other side of the country.

Piscataway, a suburb of New Brunswick, currently does not have a single licensed gun dealer, according to listings by the Bureau of Alcohol, Tobacco, Firearms and Explosives. A resolution passed by the Town Council on June 14 is intended to keep it that way. The resolution bans gun stores from opening within 1,000 feet of schools, parks, health care facilities, and other sensitive locations. While the new zoning law does not explicitly forbid gun stores from opening in the suburb, it makes dealers subject to conditions that almost no location meets. 

It’s the first such law in the state, and one of a scattering across the country: there are 24 localities in California with these location restrictions, and another two in New York, according to the Giffords Law Center to Prevent Gun Violence, which tracks gun laws nationally.

“There’s a growing concern about gun violence and the federal government’s inability to do anything comprehensive,” said Steven Cahn, the council member who drafted the ordinance. “The point is to demonstrate that as local officials, we’re not helpless. We can use our authority. Hopefully, other communities will do something similar.”

One legal expert suggested the Piscataway ordinance is a progressive version of targeted regulations on abortion providers, also known as TRAP laws, common in deeply conservative states. Those laws don’t ban abortion, per se, but they do place burdensome conditions on facilities that perform the procedure, making it impossible for many clinics to remain in operation.

“States have passed a lot of laws that make women travel really long distances to get an abortion, which is a constitutional right,” said Allison Anderman, an attorney with the Giffords Law Center to Prevent Gun Violence. To successfully challenge Piscataway’s law, as pro-choice activists have done with TRAP laws, a gun purchaser would have to argue that the restriction puts an impermissible burden on his or her Second Amendment rights with no public safety benefit.

According to a zoning map provided by the council, the only parts of Piscataway zoned for commerce and not covered by the law are within three single-block stretches along the town’s border.

ABOVE: A map of the footprint of Piscataway’s gun store zoning ordinance. The three areas highlighted in yellow are the only parts of town where a gun store could open without a zoning variance.

A light-industrial corridor alongside the interstate highway that bisects the town, as well as residential neighborhoods, also fall outside of restricted range of the sensitive locations addressed by the ordinance, but the zoning code does not allow retail in those areas without express permission.

The Piscataway council was inspired by a law in Alameda County, California, outside San Francisco, that survived a federal court challenge last fall. A group of businessmen who wanted to open a gun store sued the county after they found no available retail locations that satisfied its rules for gun stores, which require that firearms sellers be located at least 500 feet from a lengthy list of other businesses and public facilities.

In their case, known as Teixeira v. County of Alameda, the entrepreneurs alleged the law violated the Second Amendment.

Last October, judges on the federal 9th Circuit Court of Appeals rejected their argument, ruling that the Second Amendment protects only the individual right to possess guns, not sell them. The judge who wrote the opinion noted that 10 gun stores still operated in the county, despite the restrictions, offering local options for residents wishing to own firearms. The Supreme Court declined to hear the plaintiffs’ appeal, letting the ruling stand.

“What the courts have said is that you’re O.K. as long as you don’t pass an ordinance that unreasonably interferes with someone’s right to possess a firearm,” Cahn said. “As long as there are other places in the general area where someone can legally get a gun — and there are towns on our border where you can go to a sporting goods store to buy a firearm — we can restrict sales in our community.”

Judges have struck down other zoning laws that target gun businesses, however. In January of 2017, a panel of judges on the 7th Circuit ruled that the city of Chicago did not prevent sufficient evidence to justify a law that restricted shooting ranges to certain industrial areas far from residential areas. That Chicago ordinance left only 2.2 percent of the land in city available for a range to open. “This severely limits Chicagoans’ Second Amendment right to maintain proficiency in firearm use via target practice at a range,” Judge Diane Sykes wrote in her opinion.

So far, the 3rd Circuit, which has jurisdiction over New Jersey, has not reviewed a law restricting gun store locations. Scott Bach, the head of the pro-gun Association of New Jersey Rifle & Pistol Clubs, told NJ.com he believes the Piscataway ordinance in unconstitutional.

In an email, Bach said he was discussing legal options with the association’s counsel, who attended the Thursday meeting. The same day, the association’s attorneys sent the town of Piscataway a letter raising the specter of litigation.

Cahn said he believes his law will withstand a legal challenge.

“We did our research,” he said. “We looked at failed attempts, like Chicago. The courts have said it’s only a right to possess a gun, not sell a gun, and I think we struck the right balance.”

The Trace