In 2001, Fargo, North Dakota, used the vehicle of zoning ordinances to prevent people from selling guns and/or ammunition from their homes. The ordinance was mostly ignored until some residents renewed their Federal Firearms Licence (FFL) in 2020. Fargo considered changing the ordinance but did not do so. In 2021, North Dakota strengthened its preemption statute to this language:
1. A political subdivision, including home rule cities or counties, may not enact a zoning ordinance or any other ordinance relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.
Fargo challenged the new preemption statute, claiming the state did not have the power to regulate zoning. District Judge Stephannie Nicole Stiel ruled in 2022 the preemption ordinance did not apply to Fargo zoning because state law did not regulate commercial sales of firearms. From inforum.com:
Stiel terminated the uncertainty and controversy in her 2022 ruling by saying that cities “can enact zoning ordinances regulating home occupations and restricting uses of land relating to the purchase, sale, ownership and possession, transfer of ownership, registration, or licensure of firearms and ammunition.”
Stiel summarized the state’s argument by saying the state has preempted the area of law dealing with firearm regulation, “and because there is no state law, there is no restriction and any restriction would be more restrictive.”
Stiel summarized the city’s argument by saying that city ordinances are not more restrictive than state law because there is no state law on the issue.
The North Dakota legislature quickly took action against this challenge to its authority. It passed HB1340, which made clear political subdivisions of the state did not have any authority to regulate firearms in zoning ordinances unless the regulations applied to all businesses in the zoning. They also clarified the language in the law to show state law did not allow political subdivisions to specifically target firearms or firearms use. HB1340 passed 83-10 in the House on February 20th, 2023, and 41-6 in the Senate on April 5th. It was signed by Governor Burgum on April 12, 2023. The bill very specifically denies political subdivisions from enacting gun bans through zoning. Here is the new, improved legislation. From HB1340:
62.1-01-03. Limitation on authority of political subdivision regarding firearms- Civil action.
1. A political subdivision, including home rule cities or counties, may not enact any ordinance relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.
2. A political subdivision, including home rule cities or counties, may not enact a zoning ordinance relating to the purchase, sale, ownership, possession, transfer of ownership,registration, or licensure of firearms and ammunition. All such existing ordinances are void.
3. This section does not limit the ability of a political subdivision, including home rule cities or counties, to enforce an ordinance or zoning regulation relating to a business operation if the restriction in the ordinance or regulation:
a. Applies equally to all persons engaging in commerce within the area subject to the ordinance or regulation; and
b. Is not specifically related to the purchase, sale, ownership, possession, transfer of ownership, registration, or licensure of firearms and ammunition.
4. The absence of a state law restriction relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition may not be construed to allow a political subdivision, including a home rule city or county, to enact an ordinance restricting the purchase, sale, ownership, possession, transfer of ownership,registration, or licensure of firearms and ammunition.
5. A person aggrieved under this section may bring a civil action against a political subdivision for damages as a result of an unlawful ordinance.
It appears Fargo is not happy with the new legislation and will be challenging it in court. It is possible Judge Stiel will be the presiding judge.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
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