Editorial: Zoning and Gun Control

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The New York Times recently reported the 100th birthday of zoning in our country. In 1916, New York City enacted the first zoning ordinance in the nation.

Like many other nationwide trends, the implementation of zoning ordinances spread slowly but surely across our country such that they are now a ubiquitous reality although there is the inevitable exception to the rule – Houston is a major city which still does not have a comprehensive zoning ordinance.

The idea of zoning was embraced, and ordinances were enacted, in many towns and counties on the Eastern Shore in the 1950’s and 1960’s. Today zoning ordinances are accepted – mostly – as effective tools in maintaining the “quality of life” that is unique to the Chesapeake Bay region.

But the essence and stark reality of zoning regulations are that they are profound restrictions on our fundamental property rights.

Those rights were established by centuries of the development of Anglo American “common law”. They were more fully legitimized and expanded by and through the Declaration of Independence and the Constitution, and later codified by zoning regulations and other legislation.

Indeed, the right to the ownership, use, enjoyment and protection of property in the United States is one of the most fundamental and cherished rights of our democratic society and republic. Yet as a nation, we now universally accept the impact of the restrictions land use laws impose on our use of that property.

In 1926 – in a seminal case known as Village of Euclid v. Ambler Realty Co. – the Supreme Court confirmed that zoning regulations are a reasonable exercise by state and local governments of their “police powers” to protect the collective best interests of our citizens and communities.

Perhaps there are others who agree that a reflection upon the 100 year history of zoning in our country can give rise to a thoughtful and enlightened perspective on the current debate about the Second Amendment right to bear arms.

On one extreme side of that debate are those who believe that there should be virtually no governmental restrictions on the right to own firearms. On the other equally polarized side are those who believe that firearms of all types should be all but totally prohibited.

Unfortunately, the groups who advocate those extreme positions are not infrequently the loudest, to the end that they drown out the voices of those who believe that there can be a reasonable and appropriate middle ground which both limits and protects our Second Amendment rights in fairness to all – in many ways like the restrictions imposed on our property rights by zoning regulations.

The majority of us cherish and embrace our right to own and use firearms for recreational and safety purposes. Therefore, it may be that those people who fear that the “slippery slope” of gun ownership regulations will mean the decimation of our Second Amendment rights are unreasonably paranoid.

The key point is that reasonable regulations of gun use and ownership can be implemented – in the same fashion as zoning regulations – to the end that the Second Amendment will retain its profound importance to the psychology, culture and realities of our collective safety and enjoyment.

There are many Americans – probably a significant majority actually – who are “in the middle” in their belief that the right to bear arms was intended to be interpreted reasonably as time has passed since that essential Bill of Rights protection was enacted more than 200 years ago during the Age of Enlightenment & Reason in America.

Many people reasonably and instinctively believe that our Founding Fathers could not have intended for the Second Amendment to be interpreted expansively to allow individual citizens to bear modern weapons of war for the simple reason that they could not have anticipated the development of such destructive arms – and the potential harm they could cause if in the wrong hands. Likewise, notwithstanding their wisdom and intentions for the establishment and protection of personal liberties and property rights, the Founding Fathers could not have anticipated the need for and benefit of zoning and laws.

While there are some inevitable imperfections in our zoning laws, the reasonable regulation of land use has given rise to our fantastic kaleidoscope, fabric and diversity of cities, towns and rural areas, and serve to protect the interests and rights of us all. There is no reason why reasonable regulations of firearms cannot do the same.

And one other thing . . . what is the big deal to and consternation of Second Amendment advocates about the imposition of “waiting periods” and gun registration and licensing requirements?

After all, our zoning ordinances include all sorts of waiting periods before the issuance of many types of building and use permits, zoning board approvals and the like, which in many cases are not issued until after weeks of public notice and hearings.

We all accept that permits – which are a type of registration and licensing – are needed for all sorts of land use, the most benign of which are for new homes . . . perhaps our most cherished property of all.

A dispassionate view of gun licensing and waiting period regulations is that they really should not be – and are not – a big deal when compared to the same type of restrictions on our property rights.

The point here is not subtle . . . if we can all accept restrictions on our property rights, should we not also be able to accept them on our right to bear firearms?

As we reflect upon the 100th birthday of zoning, perhaps there can be hope, and should be optimism, that we can find a common ground on a reasonable modern day interpretation of the Second Amendment . . . but like zoning regulations that restrict our most cherished property rights, it must be “somewhere in the middle” to reasonably protect the individual and collective interests of us all.

In other words, there are many of us who appreciate, have faith and believe that if the Constitution permits a century heritage of the reasonable regulation of our cherished property rights by zoning regulations, then it also permits reasonable regulation of our Second Amendment rights . . . no more and no less.

Letters to Editor

  1. vernon l miller says:

    I think what you are doing here is comparing apples & oranges go back & read what our founding fathers said when they wrote the 2nd. amendment guns were to protect life & liberty to provide food,zoning protecting dirt not even close.

    • Joe Diamond says:

      I would add the evolutionary nature of American law to the discussion….. private property sits upon dirt but that is not under discussion and examples of protecting life or liberty are pretty rare.

      I suggest looking back to an earlier form of zoning……..about one hundred years before the New York City example. In 1830 we had the Indian Relocation Act. This law allowed moving Indians from their homes to designated lands beyond the Mississippi River. We should still be ashamed! None the less, more specific forms of zoning did proceed in later years. As pointed out, zoning is taking use of land from the property owner. In theory public need or safety directs control of land use……The exact details have been seen to evolve.

      Supreme Court Justice Ginsburg applied this same evolutionary concept to the second amendment.

      She pointed out that in the preamble to the second amendment there is a citation of a need for a well regulated militia. To this end the right to bear arms should not be “infringed.” She reasoned that the central government could not afford a standing army. Local militia were then necessary to protect the nation. As that need passed, so too did the need for citizens. to keep & bear arms. If there was a time when single shot muskets in untrained hands could provide any defense those days are gone. Nobody is suggesting a need for citizens to stock military weapons in their homes and be Minutemen.

      AS we have redefined what is safe or appropriate for residential, agricultural, industrial and public use we let government agencies to control land use. What has not changed or abated is an industry that continues to manufacture and market weapons to a population who neither needs nor knows how to use an increasingly lethal product.

      Joe

  2. Stephan Sonn says:

    I like the take of this editorial but it is far too civilized for the
    current feeble mind set in congress.

    On the other hand what choice do we have but to bring back sanity
    to the business of living in a safe society. So keep writing in the view
    of logic that we once stood for in what were better times
    and click together the heels of your shoes three times.

  3. James Nick says:

    There is a marvelous resource available with just a few clicks of a mouse to anyone interested that gives direct, unfiltered access to the thinking that the Founding Fathers brought to bear when writing the Second Amendment to the Constitution. It can be found on the website of the Constitution Center here…

    http://constitutionalrights.constitutioncenter.org/app/home/writing#

    Click the “Start Exploring” button, then select the select the “2nd Amendment” in the upper left hand corner of the screen. What you will see is listing of all the historical source the Framers of the Constitution had at their disposal in order to craft the Amendment. It is then possible see the proposed changes to the language by the various people and legislative bodies as they weighed in. There is really no need to argue or wonder what the Framers were thinking… it’s right here.

    When examining this resource, two things pop out almost immediately. Of the 20 historical resources going back to the English Bill of Rights of 1679, only seven make any explicit, unambiguous statement that individuals have the right to bear arms for self protection. The typical language found in these seven sources appeared in the Pennsylvania Constitution of 1776, namely, “… That the people have a right to bear arms for the defence [sic] of themselves and the state;…” But it is very clear that this was not the central issue of the day. The Framers were much more preoccupied by the role that state militias and standing armies were to play and how they were to be maintained, regulated, and governed. Militias were evidently the weapons of mass destruction of their day and were of great concern to the Founding Fathers.

    The Second Amendment as we know it today was a distillation of the language that emerged from the Senate on September 4, 1789:

    “A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person, that standing armies, in times of peace, being dangerous to Liberty, should be avoided as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to, and governed by the civil Power. – that no standing army or regular troops shall be raised in time of peace, without the consent of two-thirds of the Members present in both Houses, and that no solider shall be inlisted [sic] for any length of term than the continuance of the war”.

    It is clear in both historical context as well as in the context of the draft language that the phrase “the right of the People to bear arms…” is a reference to the right of the collective, capital “P”, People, to form “well regulated militias” in the times of war. The Amendment is actually silent on the right of individuals to keep and bear arms. The Framers had at that very language available to them in the seven source documents, had the opportunity to include that language, and ultimately rejected its inclusion in the final amendment.

    As a final note, all the Strum and Drang as to whether the Second Amendment confers a constitutional right to individuals to own guns seems to gloss right over the notion that the Founding Fathers were completely unambiguous about not wanting to maintain standing armies in times of peace. Times have changed, you say? Indeed. But if we all agree that times have changed sufficiently to disregard this founding principle then they have likewise changed sufficiently to consider the regulation of the modern weaponry available on the consumer market that has, as its only purpose, to kill as many people as possible in the shortest amount of time..

  4. Gren Whitman says:

    Rational proponents of rational gun safety laws and regulations want to keep dangerous people from having access to dangerous weapons.
    Daddy doesn’t hand a loaded pistol to his 5-year-old and say, “here, son, run out and have fun!” In the real world, there is no plausible reason for any civilian to own a military-purposed weapon.
    In District of Columbia v. Heller, conservative SCOTUS Justice Antonin Scalia was explicit: “Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
    The NRA and its supporters know this, and it makes them oh! so nervous. The majority community—appalled by the carnage of gun-related violence—needs to press its case for rational firearms policies.
    Firearms safety has nothing to do with the Second Amendment. If not now, when? If not us, who?

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