Editorial: On 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. Raymond Case says

    Unfortunately, the editor(s) is ignoring the mental health aspect of gun violence which is THE determining factor as to why these crazy people are committing the violence in the first place. Most recently, the man in Orlando was a licensed security guard – an ignored fact – and most unfortunately, a very disturbed licensed security guard with a long history of imbalance… Had there been a responsibly armed citizen on hand that night and in many other instances, the outcome(s) might have been dramatically different.

  2. David Montgomery says

    Analogies are sometimes useful to explain or teach, but they are not a substitute for direct facts and reasoning. Your labeling some firearms as “weapons of war” is both prejudicial and irrelevant. Clubs, knives and swords, not to mention rocks and bows and arrows, have also been weapons of war. And so-called assault rifles differ from hunting and target rifles only in cosmetics. A Mini-14 with a wooden stock is a hunting rifle, but the identical gun with a black stock, pistol grip and flash suppressor is an assault rifle. Moreover, a competent shooter can load and fire a semi automatic hunting rifle almost as quickly as an AR, and come close with a bolt or lever gun. Your analogy to zoning therefore has to apply to all firearms or none. The weapons of war distinction is arbitrary in a way that industrial vs residential is not. Finally, the constitutional protection on keeping and bearing arms in the Second Amendment is absolute, like the First Amendment guarantee of free speech, while the provision of the Bill of Rights relevant to zoning protects only against unreasonable search and seizure. Clearly we should enforce laws that prevent criminals, terrorists, and the insane from possessing firearms, but our acceptance of zoning for entirely different legal and practical reasons provides no rationale for restricting the constitutionally protected rights of law abiding citizens to own firearms.

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