This post was lifted wholesale from this morning’s Chamber of Commerce email newsletter …. because I’m really lazy 😉 – Jerry Reilly
Just weeks after approving strict new zoning rules that will make it nearly impossible for a firearms business to open in Newton, the city council will hold a public hearing Monday on a second proposal that would impose an outright ban on gun shops.
But one of the nation’s leading gun control control advocacy groups is warning that passing a gun ban in Newton could create problems for communities nationwide.
Newton City Council President Susan Albright says the Giffords Law Center to Protect Gun Violence (the organization lead by former Congresswoman Gabby Giffords) has asked city leaders to not pursue a gun ban that could “end up in a Supreme Court that is aching to take up a Second Amendment case to strengthen the Second Amendment.”
“By tempting the Supreme Court to severely limit gun regulations, Newton would actually be making this a significant problem for communities around the country that have actually struggled with gun violence and enacted comprehensive dealer regulations as part of their solutions,” Albright said in an email to the chamber, suggesting a ban could “do much more harm to other communities than to Newton.”
That view is shared by Darrell A. H. Miller, a law professor at Duke University School of Law and codirector of the Duke Center on Firearms Law.
“If you end up banning gun stores by law from the region, somebody is going to raise a Second Amendment issue,” Miller tells John Hilliard at the Globe. “And an issue that hasn’t been adjudicated, will be adjudicated on that basis.”
The city’s attorney, Alissa Giuliani is also warning that a ban “would not withstand” a legal challenge.
“Put bluntly, when considering the risks of litigation in the name of fighting the good fight, the real risk here is that the city’s ability to regulate gun stores could be diminished, if not removed entirely, and that decision would impact every community in the country,” Giuliani wrote in a memo to city councilors.
But Newton City Councilor Emily Norton, co-author with Councilor Lenny Gentile of the proposed ban, is apparently willing to take that risk.
“I want to take a firm stand against access to guns,” Norton tells Hilliard. “I don’t think they need another option in Newton, people don’t want it near them. I think we should respect that, and try to make it happen.”
I hope the majority of the City Council will listen to this serious legal concern. When passing ordinances in Newton, it’s important for us to consider the wider impact – just as we’d hope other localities would not pass laws that would hurt us.
I have a great deal of respect for Gabby Giffords and her organization. If a leading gun control organization asks us not to do something that has great potential to do more harm than good nationally, it behooves us to listen.
The “firm stance” echoed by the city council will be ultimately meaningless if and when a future 6-3 Supreme Court majority obliterates it to expand Second Amendment rights. But such is life in a progressive silo.
This is how you metaphorically shoot yourself in the foot.
Please, Newton, go ahead!
Posting this anonymously as a Newton resident who dislikes the cancel culture
here.
What’s a plausible US Supreme Court argument to alter municipal zoning regulations to make it easier to site gun shops?
Nathan, I’m sure one of the six right-wing justices will think of something when a case comes to them.
@Nathan – Chicago already tried a full ban which was struck down at the federal (although not SCOTUS) level as unconstitutional as it infringed on the 2A right to keep arms (ie. In order to keep arms you need to be able to buy them legally):
https://www.chicagotribune.com/news/breaking/chi-citys-gun-ordinance-ruled-unconstitutional-by-federal-judge-20140106-story.html
The current ordinance already makes it effectively impossible to open a gun store between the zoning and SP restrictions. Given the current SCOTUS composition I’d listen to Giffords Law that a full ban will likely not survive a full legal challenge. It’s a significant risk for almost no gain over what we have in the books today outside of bragging rights – and I’d have to wonder if a SCOTUS defeat of a full ban would also jeopardize our current ordinance given how restrictive it is (ie. – it’s effectively a ban without using the word ban).
When the Newton City Council was considering passing the “Welcoming City” Ordinance in 2017, we were warned that doing so would risk $12M in federal funds because during his campaign, President Trump had threatened to withhold money from communities that didn’t allow local law enforcement to cooperate with ICE to detain undocumented immigrants based solely on legal status.
We passed the law anyway, by a vote of 16 to 1.
So far we have taken a different approach when it comes to gun stores. Rather than do what the lawn signs are saying so many Newton residents want, i.e. “Stop Gun Stores in Newton”, we have actually expressly laid out where we think it’s appropriate to site a gun store, and also what the process would be to obtain a special permit.
One of those locations is Rumford Ave in Auburndale. Here are a couple organizations that exist there, right over the line in Waltham. The first is “Work Community Independence”. Their mission is “to empower and support Individuals with intellectual and developmental disabilities, autism and acquired brain injury to achieve rich and meaningful lives at home, at work and in their communities.” Imagine a person who is disabled or has suffered a brain injury, having to drive by a gun shop on their way to receive services.
Another organization is the Children’s Charter Trauma Clinic. We received the following email from the Director: “My name is Paula Stahl. I am the founder and Director of Children’s Charter Trauma Clinic opening in 1985. We are the largest provider of specialized, psychological trauma services in Massachusetts. We have been located at 77 Rumford Ave, Waltham for the past 36 years. The children and adults we serve present with significant, often acute, histories of Domestic Violence, sexual abuse, and physical and emotional abuse. We see over 325 adults and children weekly-70% who live in the Newton and Waltham communities. I have serious concerns about clients, in desperate need of our services, with histories of violence, feeling safe to access our mental health services with a GUN STORE ONE BLOCK FROM OUR CLINIC. I worry about the children, who have witnessed violence, making sense of gun store near the clinic their parents bring them to “heal”. I also have grave concerns for our clients and a 40 member staff. Some of our clients are stalked by their perpetrators. It is frightening to think their perpetrators would have access to guns so close to our parking lot and our entrance. I ask the Council to consider the unique needs of our clients and our responsibility as a community, to allow these adults and children to heal in a safe and protected environment. In my 40-year career of advocating for abused children and adults, I have never been faced with a decision by the leaders of a community that has a greater potential to compromise the work and the mission of my clinic.”
How could we argue that this is an appropriate location for a gun store?
Attorneys from two prominent and 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. For example, the City of Cambridge has had a ban on the sale of guns since 1986.
And in terms of the argument that we should allow gun shops to be zoned in Newton to avoid litigation, yet also say “oh don’t worry the City council will never vote for a special permit” … I believe this would actually put us at MORE risk of litigation.
A would-be gun shop owner follows all the rules that we have laid out to open a shop, applies for their special permit, and we still vote no? With all special permit votes, the Law Department reminds us we vote NOT as Councilors but as a “quasi judicial authority” which means we are supposed to be acting like judges, and cannot just vote no because we don’t like something, we have to make a credible case that the applicant did not meet our criteria.
Note the ordinance as passed says the city council can ignore the buffer zones if we want, when considering special permits.
And if we set criteria for a gun shop that in actuality we never approve, then I don’t see how legally that puts us on any more sure footing than just zoning in such a way to preclude a gun shop from opening, or just passing a ban entirely, as Cambridge has done.
The main problem Gifford’s organization and others brought up is not that Newton, with the aforementioned pro bono representation, cannot fight back if a passed gun store ban ends up being adjudicated. The suit depending on the outcome may make it’s way to the Supreme Court leaving the first amendment case open to explore additional conservative precedent setting gun rulings. That may be so.
Although if recent rulings are at all indicative of the SCOTUS’ leanings, there are not 6 “right-wing judges” as FWG says, but rather it’s more like 3 ultra right wing conservative judges, Justices Thomas, Alito and Gorsuch, 3 conservative judges, Justices Roberts, Barrett and Kavanaugh.
Still, it is not the optimal time to plead a first amendment case that references gun sales before those 6 judges. It makes sense to listen to those who have been organized and fighting this fight for years. Pay attention to what Gifford’s group says.
Rumford does not seem a good place for a gun store. Why not keep them out in the open instead of nestled on the outskirts of Newton? Lots of sunlight is a good way to see what is happening b
Can someone explain why no one fear Cambridge’s ban from being challenged?
Are we assuming not a single gun supporter is aware of Cambridge ‘s ban for the last decades and that Newton’s case will somehow ‘alert ‘ someone that a town in USA actually has a ban?
Or is Cambridge somehow immune to any challenge?
Excellent point Bugek. The gun industry does not need Newton to act, if they want a test case they can try opening one in Cambridge tomorrow.
@Emily – Different stakes, the Welcoming City ordinance’s impact would have been limited to Newton loosing some federal funding while a successful 2A challenge would have far greater implications. Also a different scenario in that one is contradicting a President’s temper tantrum while the other is potentially unconstitutional. Even if the federal district in MA is favorable given that there’s a conflicting opinion in Chicago’s district that risks it going up to a conservative leaning SCOTUS.
Gifford’s Law Center has a sole focus on promoting gun control laws and restricting gun ownership. Could they be wrong in their assessment? Sure, but given their area of expertise and advocacy if they’re saying that pursing a full ban opens up a significant risk of legal challenge I would listen closely. They are looking at the bigger picture, if this goes to the SCOTUS it’s not just about Newton and what people in Newton want. I’m sure there are plenty of people in Newton that would like to just not have 40B projects but unfortunately (or fortunately, depending on your view) that’s not something the people of Newton get a say in.
Now the Cambridge ordinance is interesting – did a quick search for news around it and the only thing I could find was an article around the last gun store in Cambridge closing back in 2012 and then your newsletter which referred to it. Looking at the ordinance itself it’s specifically targeting sales with a fine of $300, so it seems like rather than prohibit from a zoning perspective they’re prohibiting the act itself. They also grandfathered in existing sellers, so I’d wonder if it’s more that no one with standing has bothered to bring a case.
Following the debates around our current ordinance I was always under the impression that the intent was “how close to a ban can we get without using the word ban”, and I’d argue that as it’s worded the ordinance does technically designate two potential areas but has so many requirements called out in the special permit review that it’s effectively a ban. As you have pointed out there is a clinic right across the border in Waltham treating patients that have suffered from domestic abuse – which under the ordinance you would need to consider even though it’s not located in Newton. Maybe if those two clinics close at some point in the future that could open the door for one – but from my understanding none of the existing buildings could be used under the zoning rules so someone would have to go through a significant amount of effort.
Councilor Norton, why not amend the zoning ordinance to exclude gun shops near institutions like Children’s Charter Trauma Clinic, regardless of which city the clinics fall in? This would be a fair approach, less NIMBYish than the current zoning rule and less likely be be overturned on 2nd-amendment grounds. It would also be a useful backstop to the approach you prefer. A gun shop at The Street will never open, and even if it did, would be less damaging.
Emily,
If someone can test the case by opening one in Cambridge tomorrow then we are simply “being afraid of our own shadow” if we dont go foward.
It would be interesting to hear Amy Sangiolo stance on this
@John, Councilor Baker offered an amendment that would have included protected uses outside Newton to create the buffer zones but it was voted down by a majority of City Councilors.
Ms. Norton’s reasoning is unsurprisingly atrocious. Alcoholism is a huge problem in our society. Still, we have package stores and other retail establishments selling all manner of alcohol laden beverages strewn throughout our city. Amazingly, the sky has not fallen, the Four Horsemen have not ridden down Beacon Street, and Ragnarok has yet to transpire. Surely though, one or two gun stores will tip the scales of our collective luck. But hey, let’s see how this fares with the current SCOTUS. I would guess 7-2 against Newton.
@Emily, thanks for the response.
Elmo made some good points.
I have no interest in guns, but I support the owner’s right to open a business.
There is no city more divisive, or prone to needless drama, than snooty Newton, Ma.
It’s time to cut the bloated City Council in half. There is absolutely no need to have so many of them.
3 days ago, there was an outstanding article in the New York Times analyzing the fractured make up of SCOTUS, and some of the very surprising decisions issued by this court. The by-line was liberals seem to be winning.
No one can accurately prognosticate what SCOTUS will do in any particular case, nor whether the court will even grant a petition for certiorari. No one.
In the area of second amendment jurisprudence, the court rejected an opportunity in 2017 – with a conservative majority— to strike down a ban on commercial gun shops in a county in California. And in the next term, the court will hear perhaps the most important 2nd amendment case when it rules whether NY’s ban on carrying firearms outside of the home violates the second amendment.
In the meantime we have adopted a de facto ban. Plenty of councilors made it clear on the record that the zoning is intended to make it impossible for any gun store to open. Now what is the difference between an outright ban and a de facto ban? I would argue it is simply semantics and that the zoning as adopted is more defensible than an outright ban by a measure of a few degrees.
I note that Newton Firearms has not taken down their website; I think they’ve added to it. It doesn’t appear to me that they have any intention of riding off into the sunset and I fully expect litigation to follow. And since I don’t have a magic crystal ball, I don’t know how the matter will ultimately turn out. But I wouldn’t base my arguments on what SCOTUS might to some years down the road in the infinitesimal chance that Newton becomes a Second Amendment test case.
My 2 cents on a glorious day. Happy Summer all!
Lisa P:
Seems to me there are two competing limited risk events to balance here.
1) The limited risk event that a full ban would be adjudicated and used as a Supreme Court test case, thereby potentially hurting the cause of other jurisdictions and expanding the rights to sell guns on a national scale.
2) The limited risk event that the holes in our zoning ban will be attractive to a potential gun shop, and they will somehow (i) find a way to rent at The Street, or decide that renting in the limited area by Rumford Ave, where there is limited foot traffic, fairly high rents in comparison to surrounding jurisdictions, and no indication that a gun shop currently has interest in opening in such an area AND (ii) that finding such location attractive enough to open a store, that the city council, knowing what a hot button issue opening a gun shop is in Newton, will approve the special permit by the high level required, or alternatively, if unable to do so, not just enact a full ban at that time.
I have absolutely no clue which is a more unlikely event. There hasn’t really been a successful gun shop in Newton in a long while, and I see no reason to think one would be successful near Rumford Ave. I think the gun shop on Washington Street was also going to fail, absent a sweetheart deal from the landlord to rent the space at extremely below market rents, or if the shop was landlord owned (in other words, a special case not bound to typical gun store economics). I also think that the NRA and others who would typically bring such a lawsuit in favor of a gunshop are currently recovering from major financial difficulties, and that there are other second amendment court battles that are far more attractive to fight over for second amendment advocates with the current Supreme Court.
So that’s where we are. Where the unlikely meets the unknown.
To me, it comes down to who is the expert in this particular matter? Who can best advise us through the unknown darkness. Do we trust the political advocates, who are passionate about the issue. Or do we trust the Gifford Foundation, the City Law Department, and various law school professors who advise caution.
I don’t think there is a wrong answer to be honest, since neither of us could possibly know the RIGHT answer (absent a crystal ball). For me, personally, I tend to think the political advocates sometimes let their passion get in the way of their common sense and practicality. They see the world as they want it to be and hope we see it that way too. So I would err on the side of the legal experts vs. the advocates. Sometimes you just have to acknowledge that the arc of the moral universe is longer than you want it to be…(and pray it bends towards justice in your lifetime). That’s just my personal view.
Happy Summer to you as well.
Until someone clearly explains why Cambridge has not triggered a Supreme Court challenge in the past decades and potentially tomorrow… this theory is totally meaningless
Just a guess Bugek, but Cambridge grandfathered in all prior gun shops when they passed the ban, it just so happened none yet were still in business, which was obviously convenient. And you’d need standing to challenge the law, so absent someone willing to step up to the challenge of attempting to open a gun store in Cambridge and then challenging the law in court, there is no court case to work its way through the system.
Like I said, it is a battle between two unlikely events. Just because Cambridge hasn’t been challenged doesn’t mean Newton, with a plaintiff with direct standing, wouldn’t be. Just because a gun shop owner wanted to open on Washington Street doesn’t mean they’d want to open up on Rumford Ave away from most retail establishments and foot traffic.
FYI. Julia Malakie has 2 youtube videos touring the possible gun store locations in Newton
Rumford: https://www.youtube.com/watch?v=h8KgMTO_LWA
North Street: https://www.youtube.com/watch?v=LOPabTaahXM
Its interesting to actual SEE the locations instead of just a pin on a map
Bugek, agreed, very helpful.
So basically after watching these videos, I’m more convinced than ever at how unlikely it would be for any gun store to want to open in those areas, especially the Rumford Ave area. There is a reason there is almost NO retail activity in that area. There is very little foot traffic and it is near the town recycling area.
I am sympathetic regarding the viewpoint of the Children’s Charter Trauma Clinic. But I feel they are assuming that a gun store is actually likely to open at Rumford, which has no current basis in fact. And I note, most importantly, that Waltham has gun stores and does NOT have a gun store ban! So a gun store could open up right next door to the Clinic in Waltham right now. Not 100 feet away. Next door. So while I’m sympathetic, I think it is equally unlikely that a gun store will open at Rumford or near that clinic in Waltham itself, because the area isn’t attractive to retail, as Julia’s video clearly shows. It does feel like the Clinic’s concerns are a huge focus of Councilor Norton and others to justify their position, but a ban in Newton doesn’t solve the complete lack of a ban in Waltham. Therefore, to me, Waltham’s lack of a ban combined with the unlikely event of a gun store breaching the retail wasteland that is Rumford, combined with the need for a special permit if some gun store decides to ignore economic reality, makes the Clinic’s concern more of an emotional argument than one evidenced by facts on the ground.
Very helpful videos for sure. I encourage folks on the fence to view them.
As for the North Street area, that is slightly more likely, as some of those areas have class b retail space already established. Still very unlikely, but perhaps a used or resale gun store could exist there. Rents are cheaper a few streets away, but I suppose it is possible. Still unlikely.
I’ll also note that building a new building to house a gun store as a retail tenant makes very little sense in both areas. There is a reason why that lot has remained vacant for quite some time. And building new Class A space requires an anchor tenant willing to pay high rent. That wouldn’t be a gun store. That’s just simple economics. It is a tough business with low margins.
@Fig – Waltham has a gun store just under 2 miles away from Rumford in fact (305 River St), surrounded by a church and residential housing. So besides the lack of foot traffic/other retail to bring in people a potential gun store on Rumford would have a competitor nearby which is also much closer to all the retail around Moody St/Rt. 20.
Important to note that from what I can read, the Cambridge ordinance pertains to handguns and doesn’t mention other weapons (correct me if I’m wrong). This is probably why it has not been challenged since you could conceivably open a gun store for hunting rifles, etc.
I like the action the Council took on zoning as it seems to do more than the Cambridge comparison. Newton implementing an outright ban would probably be a more attractive legal target for a challenge.
Those people at the Giffords Center just don’t understand. They are so arrogant, acting like they’ve devoted their entire careers, every working day, to the study of firearms regulation. They clearly don’t know how special we are here in Newton.
When I need expert advice on the intricacies of Second Amendment appellate law, I looked to Emily Norton and the other brilliant people on our community. That mean old Supreme Court is no match for all our positive energy, rainbows, and unicorns.
Councilor Norton’s comments are misleading and tailored specifically because her efforts towards an all out ban were unsuccessful (and frankly, misguided and dangerous to our city and others like us with restrictive zoning). Yes, Cambridge has had a ban on HANDGUN sales since 1986, but not on gun stores. In fact, there was a gun store operating in Porter Square until around ten years ago. Their process for obtaining firearm dealer licenses is the same as Newton’s was three months ago. This is why, @Bugek, it hasn’t been litigated yet, because there is no ban on firearms dealers in the city, just handgun sales.