Proposed Ban On Sale Of Firearms in Dedham Is Unconstitutional

I am here writing this letter because there has been a lot of misinformation about the Second Amendment put out on social media, in numerous letters to the editor in various local publications, and at last week’s Select Board meeting. I write this letter in opposition to the warrant article as drafted by the Select Board, because it proposes a complete ban on the sale of firearms anywhere in the geographic limits of Dedham. If passed, this article would pose an unreasonable and facially unconstitutional restriction on my ability, and other licensed, law-abiding gun owners’ ability, to acquire firearms.

The Planning Board should either withdraw this article completely, or, at minimum, amend the article to remove the complete ban, and instead propose reasonable “conditions and qualifications” on the location of firearms stores in Dedham. Such conditions may include that no firearms store is located within 500’ of a school for instance, which has historically been recognized as a “sensitive area.” It’s important to note, however, that residential areas are not deemed “sensitive areas” by the courts, and therefore the mere fact that a firearm store is located near a residential area is not grounds to prohibit it from locating there.

As noted by Town counsel at the Select Board meeting on September 5th, no other town or city in this Commonwealth has proposed something so extreme as a complete ban on the sale of firearms within their jurisdiction. Where it has been proposed elsewhere in this country it has been struck down by the courts. This is because such a proposal is not supported by case law or the longstanding historical record with respect to Second Amendment rights.

There are a number of U.S. Supreme Court and Circuit cases on point with this issue, including D.C. v. Heller (2008), Ezell v. City of Chicago (2011), Teixeira v. County of Alameda (2016), Ezell v. City of Chicago (2011), and Illinois Associate of Firearms Retailers v City of Chicago (2014), to name a few.

What’s clear from these cases, particularly Heller, is that the Second Amendment guarantees an individual’s right to possess firearms for historically lawful purposes, including but not limited to self-defense in the home. Heller effectively dismantled the “collective rights” argument being pushed by gun control advocates that attempted to relegate gun ownership rights to a State’s right to organize and maintain a militia.

It’s also clear from these cases that when a proposed regulation affects conduct under the Second Amendment, courts typically apply a two-pronged test. First, court asks whether the challenged law burdens conduct protected by the Second Amendment; and if so courts apply the appropriate level of judicial scrutiny. In the case of complete ban of firearms sales courts would apply the highest standard known as strict scrutiny, whereas, a regulation that merely seeks to limit where a firearms store may be located would likely be subject to intermediate scrutiny, a less rigorous standard of review.

In Teixeira v. County of Alameda, a case that has been cited numerous times over the past few weeks, and with facts and circumstances that are strikingly similar to those surrounding the opening of J&J Arms and the proposed zoning law in Dedham, the Ninth Circuit picked up where the U.S. Supreme Court left off in Heller and conducted an extensive analysis of the historical record to determine whether the right to acquire firearms is enshrined in the Second Amendment. After outlining its analysis, the court concluded that “…the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and bear arms.” The court further stated:

“If ‘the right of the people to keep and bear arms’ is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well.”

Similarly, in a separate case the District Court of Illinois in striking down an ordinance banning the sale or transfer of firearms within Chicago City limits, stated that a “ban on gun sales and transfers prevents [citizens] from fulfilling the most fundamental prerequisite of legal gun ownership – that of simple acquisition.”

There is no doubt that the proposed zoning law, whether it ends up being passed as a complete ban or amended to propose reasonable conditions and qualifications on the location of firearms stores in Dedham strikes at the core of Second Amendment rights. The proper question, then, before the Planning Board is whether a complete ban on the sale of firearms in Dedham is the type of longstanding condition or qualification on the sale of firearms that is historically recognized as permissible. The answer, based on the aforementioned cases, is categorically ‘No.’

Our Second Amendment case law is clear that a regulation imposing a complete ban on the sale and transfer of firearms within the confines of the Town of Dedham is not the type of longstanding regulation that has been previously considered a permissible encroachment on Second Amendment rights, and therefore will not pass constitutional muster.

This does not mean, however, that right to keep and bear arms, or the right to acquire and sell such arms is unrestricted. In fact, some ‘conditions and qualifications’ imposed on the ability to purchase and sell firearms have been deemed ‘presumptively lawful’ by the courts, such as restrictions on the ability of convicted felons to acquire and possess firearms, or requiring firearms to be locked up when stored, or prohibiting them from being carried in so called “sensitive areas” such as schools or government buildings.

In order to impose such conditions and qualifications, the Town must demonstrate, by more than mere speculation, that a firearms store that has obtained all of its local, state and federal permits poses a threat to public safety, and/or increased crime around the locations; and/or how a firearm store negatively impacts the aesthetics of the neighborhood, or has some other compelling interest to impose such regulations. It is not sufficient merely to provide blanket statements that we should not have gun stores in Dedham because one is opposed to guns, or that one thinks gun store poses a risk to the health and safety of the community, or to the children – these are known as “secondary effects.” As noted in Teixeira, “a city may not regulate the secondary effects of [a fundamental right] by suppressing the [fundamental right] itself…it is [therefore] doubtful that an ordinance whose true ‘purpose and effect’ was to eliminate access to firearms for law abiding citizens could survive scrutiny.”

Additionally, a 2019 report to Congress produced by the non-partisan Congressional Research Service called Post Heller Second Amendment Jurisprudence, states that courts will not accept mere assertions by the government in support of its Second Amendment regulations, but requires meaningful evidence, such as legislative findings, empirical evidence, and academic studies. No such evidence has been presented by the Town in justification of this proposed law to date, nor do I suspect that it will.

Despite the recent trend by gun control advocacy groups to attempt to frame Second Amendment rights as a “public health issue” there is sparse evidence available to conclude that a lawfully licensed firearms store, and its licensed patrons, will increase crime or pose a significant danger to a specific area, or otherwise degrade a surrounding area. Firearm stores, their employees, and licensed gun owners are some of the most heavily regulated business and consumers in the market today, and thankfully we live in a state with some of the strictest gun laws in the country. I can also attest firsthand that the vast majority of firearms cases I came across when I was working as an Assistant District Attorney involved the use of a stolen, or otherwise illegally possessed firearm.

Some of the proponents of this ban have floated the argument that there are other firearm stores nearby, such as in surrounding towns and cities, and therefore a ban does not unreasonably impede the ability to acquire firearms. Once again, ignorance of the law is leading to confusion. In another U.S. Supreme Court case called Schad v. Borough of Mt. Ephraim (1981), a First Amendment case, it was stated that an individual’s constitutional rights are not contingent upon the availability of such opportunities in a nearby town or city where a non-resident (such as myself and other gun owners living in Dedham) would have no participation in the political process. Similarly, in Ezell, in striking down a complete ban on firing ranges within city limits the court stated that the exercise of Second Amendment rights, like First Amendment rights, in appropriate places may not be infringed on the basis that it may be exercised in some other place.

Finally, the Town should be aware that the U.S. Supreme Court is scheduled to hear a case called New York State Rifle & Pistol Association, Inc. v. City of New York in October 2019, which challenges a New York City ban on transporting licensed, locked and loaded handguns outside city limits, and directly addresses the issue of whether and to what extent the Second Amendment extends outside of a residence. It is anticipated that the Court will use this case to further clarify the framework that should be employed when evaluating Second Amendment regulations and shows a willingness on the Court’s part to further develop its Second Amendment jurisprudence.

In conclusion, it is evident from the case law and the longstanding historical record that a complete ban on the sale of firearms in the Town of Dedham is likely to be challenged and will not be upheld in a court of law. I strongly urge the Planning Board to either withdraw the article and wait for the pending current Supreme Court decision to come down, or in the alternative, to amend the proposed article such that it only imposes reasonable conditions and qualifications on the location of a firearms store in Dedham, which will still be subject to judicial scrutiny if challenged, albeit to a lesser degree.