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The Giffords Law Center confirms that gun shops present risks to the community.
In its March 29, 2024 letter to the Sudbury Select Board, the Giffords Law Center stated:
What about lawsuits?
The other letter from Giffords raises the threat of a lawsuit:
“A bylaw, completely banning gun dealers will almost certainly face an immediate legal challenge from gun advocates and the gun industry.”
Giffords misses three critical points and misunderstands Massachusetts zoning laws:
It’s not a question of a “ban”. A larger setback would effectively remove the current possibility of a gun shop establishing itself in our town. This sounds like what in everyday English would be referred to as a “ban”, or a “de facto ban”.
However, from a legal point of view, this is just wrong, for the following reasons: “ban”, or “de facto gun shop ban”, is not even a legal term. No such language has been defined or explained by any court—state or federal—in any reported decision anywhere in the United States.
So what does the law say? The leading case on gun shops and zoning is a federal appeals court case out of California which states that:
…the Second Amendment demonstrates that the Constitution does not confer a free standing right on commercial proprietors to sell firearms.
Teixeira v. County of Alameda, 873 F.3rd 670, 673 (9th Cir. 2017) (cert. den. 2018)
That court went on to state:
In any event, 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.
Teixeira, 873 F.3rd at 680.
The question is one of access being “meaningfully constrained”. Thus the law, instead of creating the notion of a “ban”, simply says that gun buyers may not have their access to a gun store meaningfully constrained.
And in that same case, the court ruled that a 500 foot setback requirement in Alameda County did not violate this, because there were already 10 gun shops in that county.
Well then, what about the issue of “meaningful constraint” in Sudbury?
Massachusetts zoning laws are different in structure from other states. In most every other state, much of the zoning is done on a county basis, counties typically being 700 or 800 square miles.
But not in Massachusetts. Here each city and town zones on its own. There is no county involvement. Comparing gun shop zoning in a county 30 times the size of Sudbury (as Alameda County in California is) to zoning in a state with 351 separate cities and towns, many smaller than Sudbury, is apples to oranges. It just makes no sense.
There is no “meaningful constraint”—even now—in Sudbury. Right now there are gun shops in four towns—Hudson, Marlboro, Framingham, and Natick—just a few minutes away from anyone living in Sudbury.
Giffords itself supports 500 foot setbacks. Giffords publicly asserts that a 500 foot setback from protected uses is modest, safe, legal, and constitutional. In fact, Giffords filed an amicus (friend of the court) brief in the Teixeira case arguing just that.
Giffords misrepresents the legal threat. Massachusetts law expressly requires that any zoning by law change by any city or town first be approved by the Attorney General for the Commonwealth of Massachusetts before the bylaw can take effect.
So if we were to pass a town bylaw with a 500 or 1000 foot setback, the following would happen:
1. That bylaw (like any other bylaw) would first have to go to the Attorney General to be approved. In doing so, the Attorney General would consult our state laws and constitution as well as Federal requirements.
2. There are then two possibilities:
(a) The Attorney General says that the bylaw text is not allowable. In that case, there is no bylaw at all, and again a lawsuit is not possible.
In such a case, Sudbury would be free to call a special town meeting and vote a second— modified—bylaw.
(b) Alternatively, the Attorney General approves the bylaw. (And the Attorney General has already approved bylaws from other cities and towns containing 500 and 1000 foot setbacks.)
At that point, a lawsuit could be filed. But the bylaw would then have a firm foundation to support its language, as well as the protection of an opinion from the Attorney General, the highest legal officer in Massachusetts.
Jack Ryan and Carl Offner, Sudbury