Arkansas Case on Zoning Laws Being Used to Exclude Gun Shops

In yesterday's Arkansas Supreme Court decision in Eureka Gun & Pawn, LLC v. City of Eureka Springs, the majority dismissed Eureka Gun & Pawn's appeal on procedural grounds. But three of the seven Justices opined on the substantive issue; from Justice Shawn Womack's concurrence, joined by Justices Barbara Webb and Nicholas Bronni:

[H]ad the matter proceeded in its proper posture, Eureka Gun should have prevailed on the merits…. Eureka Gun presented substantial evidence—including from the City's own planning-commission members and nearby commercial owners—that its application satisfied the ordinance's factors and that the proposed use was compatible with the surrounding district. And, other than testimony from City officials that they would not approve a CUP [Conditional Use Permit] for any business to sell firearms anywhere in the city, there was no real evidence identifying an ordinance factor that weighed against the CUP….

[The court below] held that Arkansas Code Annotated section 14-16-504(b)(1)(A) {"[e]xcept as otherwise provided in state or federal law, a local unit of government shall not enact an ordinance or regulation pertaining to, or regulate in any other manner, the ownership, transfer, transportation, carrying, or possession of … firearms"}—and the nearly identical section 14-54-1411—"does not apply to the commercial sale of firearms" because reading "transfer" to include commercial sales would produce an "absurd result." {The circuit court said at the May 16 trial,

I'm going to address some things, and then at that—there's been argument that 14-54-1411 applies that a municipality can't restrict the transfer—let me find—the ownership, transfer, transportation, carrying, possession of firearms or ammunition, the Court has not been asked to address that yet, at least, in this hearing, but the Court's going to find that this statute does not affect the commerce of firearms; it cannot. Otherwise, the city could not prohibit an arms dealer from setting up in a residential area. There would be no restriction; it would be a carved-out exception for only guns, and that is an absurd result. I—I just—it does not—is not applicable in this case.} …

[T]hat reading is inconsistent with basic principles of statutory interpretation. Indeed, the circuit court's perceived "absurdity" disappears once the zoning authority and firearms preemption statutes are read in harmony.

"Transfer" is not a technical term, and nothing in section 14-54-1411 suggests a specialized or more narrow definition. It naturally includes the conveyance of property from one person to another, whether by gift, sale, consignment, or otherwise. Thus, a commercial sale of a firearm is a transfer of a firearm. Arkansas Code Annotated section 14-54-1411 forbids local regulation of such transfers unless state or federal law provides otherwise.

If the General Assembly intended to exclude commercial firearms transactions from the statute's scope, or to protect only noncommercial transfers, it knew how to say so. It did not. The plain text therefore encompasses all transfers of firearms, including those occurring through licensed dealers. Yet that preemption can coexist with municipal zoning authority.

Section 14-56-416 empowers municipalities to regulate where particular land uses—such as gun stores—may be located. Section 14-54-1411 regulates what conditions a city may impose on the ownership, possession, or transfer of firearms. Harmonizing the statutes gives full effect to each: a city may designate commercial districts for firearms commerce but may not impose substantive burdens or prohibitions that regulate the transfer itself. The City's actions here illustrate the point.

Although Eureka Gun satisfied all ordinance factors and occupied the only zone where firearms commerce was allowed, council members testified that they would not approve a gun or pawn shop anywhere in the city. A zoning regime that functionally eliminates all firearm transfers is, in substance, a municipal regulation of those transfers and thus forbidden absent state authorization. The circuit court blurred the line between zoning and regulation, invoking hypothetical "absurdities" that vanish once the statutes are read harmoniously. Nothing in section 14-54-1411 strips municipalities of zoning power; it simply bars them from regulating firearm transfers themselves.

The circuit court's interpretation, which relied on the absurdity doctrine to narrow an unambiguous statute, effectively rewrote section 14-54-1411. Properly interpreted, the statute applies to commercial firearms transactions no less than to noncommercial transfers, and it operates alongside—not in opposition to—municipal zoning authority. Because the City may decide where firearms commerce may occur but may not decide whether it may occur, the court's contrary reasoning was legally incorrect.

Comments

[thesafesurfer]

The quality of judges in America has completely collapsed. Within the next decade the number of judicial impeachments will increase exponentially as the culture war between the insane Democrats and the rational Republicans continues unabated. America citizens are tired of the disdain that the uniparty politicians in Washington D.C. have for them. Democrats and RINO's will dramatically decrease in number as a result. James E. Boasberg has an "impeach me" placard stapled on his forehead. Print a boatload of placards for Democrat judges who ignore the Second Amendment.

[Malika la Maize]

“the insane Democrats and the rational Republicans”

It’s hard to imagine a rational person that buys into such a Manichean view of American two-party politics, especially so because in the US the two parties aren’t nearly as ideologically based as in other countries (where you literally have “Conservative” or “Labor” parties) but are coalitions cobbled together from interests groups that *change* relatively frequently. The Democratic Party was the foe of tariffs and the Republican Party their champion, then they switched positions and now have seemingly switched again; the Democrats were the party of fundamentalist Christianity under Bryant but the Republicans later were the choice of the Moral Majority. One party is the insane evil party the other the rational good one, yet they switch positions regularly. Talk about insane.

[Brett Bellmore]

Two problems:

1) Republicans are losing that gerrymandering war Trump started; Democrats are just better at that sort of thing, and have fewer reservations about doing it. So Republicans stand a good chance of losing the House, baring a wave election in their favor.

2) You need a 2/3 majority to convict, or else it's a total waste of time. And no way are Republicans winning that many Senate seats.

[Malika la Maize]

You’d think if they were so much better and had fewer reservations then they, rather than Trump starting the war they would have. No doubt Brett attributes that to their good nature unless provoked.

[Stupid Government Tricks]

Democrats had already started the gerrymandering war. Look at this:

https://daviddfriedman.substack.com/p/gerrymandering-a3b

In particular, notice the Democratic lead in unwarranted seats.

The state where the majority party is, by this criterion, most over-represented is California (Democratic), with thirteen extra seats, compared to an extra three for Texas and four for Florida (Republican).

Yet California Governor Newsom had the gall to ram through a further five seat gain for Democrats after Texas did the same.

The totals show the Democrats gaining five more seats than the Republicans but that may just reflect my using the presidential vote to calculate proportional seats; my guess is that Trump did better in the election than Republican congressional candidates. It is clear, however, that the governors of California and Massachusetts are in a poor position to complain about Republican gerrymandering.

[jb]

Hahaha, this proportional representation analysis is exactly what Republicans argued, and the Supreme Court agreed, was an invalid approach to thinking about gerrymandering. FAFO, I guess.

[Stupid Government Tricks]

That analysis is not a legal analysis. It puts the lie to the claim that Republicans began the gerrymandering war, or it shows how universal gerrymandering has always been. Take your pick.

[Brett Bellmore]

Right, and if Democrats in that litigation had actually been attacking gerrymandering as such, rather than just using it as an excuse to demand the Court impose proportional representation, they might not have thrown up their hands and decided "gerrymandering" was too vague for the judiciary to do anything about.

Gerrymandering actually had an established definition, Democrats tried to change it to "not replicating proportional representation".

[Brett Bellmore]

Democrats have always resorted to gerrymandering, just as often as Republicans, but it's considered disreputable, so they had to limit it. (Might have been some lingering institutional memory about how gerrymandering had bit them back in '94, too.) And they didn't want to start that war themselves, because the truth is, Republicans DID have more potential to benefit from gerrymandering, if they had the will to do it.

Trump gave them a 24 karat gold excuse to turn gerrymandering to eleven, and then state level Republicans proved that they didn't have the will. So it became a safe winning strategy, not a risky and possibly losing strategy.

[tuphat]

I am not familiar with Arkansas law or politics, nor do I wish to be. But it would seem that if the state league of cities, or similar organization, wants a different result than the one reached here, they could simply persuade their legislature to amend the law to clarify/define "transfer." Then, a town that didn't want a commercial firearms business could it achieve that objective via ordinance.

[Lee Moore]

Not quite sure I follow. The result here - unless and until there are further proceedings - is that the City of Eureka Springs has got what it wanted - no gun shop - courtesy of the (lower) court. It is the gun shop that is obliged to seek clarification in the law by persuading the legislature to add a clause saying :

"btw "transfer" includes transfer resulting from commercial sale. And we really do mean that."

What is going on here is that the lower court is engaged in malicious compliance by opining that it is "absurd" to construe "transfer" as including transfers arising from commercial sales. Whereas in reality it is absurd to construe it as excluding transfers arising from commercial sales.

We will see shortly whether SCOTUS can top the Arkansas Circuit Court in the matter of malicious compliance, by concluding that tariffs are not a method of regulating imports.

(They have already put in a worthy entry by concluding that a President who is forbidden by law from using regular troops to enforce the law is not, thereby, "unable" to enforce the law with regular troops. "Unable" Jim, but not as we know it.)

[David Nieporent]

malicious compliance

I don't understand how you're using that term.

[Lee Moore]

Perhaps "pretended compliance" might have been better. Purporting to perform a formal legal analysis of the text, while in fact blowing straight through it. But "pretended" would fail to highlight the malice.
"Maliciously pretended compliance" is a little clunky, don't you think ?

[Malika la Maize]

He means they acted in bad faith, isn’t that the usual, if not the only reason they reached a conclusion different?

[Stupid Government Tricks]

You think redefining "transfer" was in good faith?

[Stupid Government Tricks]

It's like shutting down money-making national parks when budget squabbles prevent paying out tax revenue. It's a common phrase and I doubt you don't actually know it.

[David Nieporent]

Of course I know it. "Malicious compliance" is a slang term for actual compliance with a law, rule, or order, but in a way that has consequences that the one who promulgated the law/rule/order would not like. It's got a strong overlap with compliance with the letter-but-not-spirit of a rule.

But AFAICT that's not what Lee is accusing the judge that he was complaining about of doing. He's saying that the judge violated the law (or allowed the defendants to do so). That's not at all malicious compliance; that's just non-compliance. To be sure, Lee is also assuming bad faith on the part of the judge, which I guess one might label malicious non-compliance. That assumption is unwarranted — assuming the judge got it wrong, judges can simply be wrong without it being bad faith — but in either case is not in any way 'malicious compliance.'

[Lee Moore]

That assumption is unwarranted — assuming the judge got it wrong, judges can simply be wrong without it being bad faith

1. It's not an assumption it's a deduction - derived from the, ah, "absurdity" of the "error."
2. Of course judges can be wrong without it being bad faith. They can also be wrong as a result of bad faith. We can scrutinize the nature of the "error" and form an opinion as to whether bad faith is present or absent.

[Brett Bellmore]

I agree, it was not malicious compliance, it was plain vanilla bad faith interpretation.

And, yes, there was bad faith involved, because they were interpreting a law enacted specifically to protect 2nd amendment rights, in a manner that enabled local policies that were explicitly intended to infringe 2nd amendment rights.

[tuphat]

re: "the result here" -- My mistake, I was referring to the result that the three justices opining on the substantive issue would have reached, viz. that the city could not wholly exclude commercial firearms businesses under state law as currently in effect.

[Grifhunter]

Ezell v. City of Chicago the 7th Circuit found on 2A grounds you can't zone gun ranges out of existence in a city.

Eureka Springs will find out just like Chicago.

[tuphat]

Apples and oranges, imho. In Chicago, lawful possession was predicated on getting a permit, a permit required 1 hr of range training and city tried to ban ranges. In Arkansas, no permit required for possession or carry.

[ReaderY]

I would not offer an opinion on an issue not before the court. That said, it does seem reasonable that the legislature intended to treat guns not just as sui generis but as being less regulanle than any other kind of business, and hence meant what it said. But because the language strikes me as potentially ambiguous, I might have considered legislative history if there was any that provided clear guidance on what the legislature intended.

I see the language as ambiguous because It strikes me as plausible that if the legislature had intended to reach commerce, it might have used a word like “sale,” all the other words relate only to individual posession and use by a single person, and “transfer” might refer to movement from one place to another rather than a change of ownership.

[Lee Moore]

I see the language as ambiguous because It strikes me as plausible that if the legislature had intended to reach commerce, it might have used a word like “sale,” all the other words relate only to individual posession and use by a single person, and “transfer” might refer to movement from one place to another rather than a change of ownership.

But this is obviously wrong.

a local unit of government shall not enact an ordinance or regulation pertaining to, or regulate in any other manner, the ownership, transfer, transportation, carrying, or possession of … firearms"

"ownership" does not necessarily "relate only to individual posession and use by a single person" since property may be owned jointly by more than one person. Secondly since the list refers to "ownership" and "possession" separately, we are reminded that possession and ownership are different things, and that property may be possessed by someone who is not its owner. That would make two people. And third, ownership can change from one person to another. Again more than one person. You would have to be straining the the point of hernia to argue that a regulation regulating the change of ownership of an item of property was not a regulation "pertaining to, or regulating in any other manner" - ownership.

Much the same analysis - if analysis be needed - applies to "possession." Possession is not limited to one person, least of all when possession by one person is transformed into possession by another.

"transportation" again does not have to be a single person game. I can transport your gun for you, to you or from you or from a third party to another third party. "Carrying" likewise.

So none of the words in the list are limited in the way you describe. Indeed even the circuit court did not attempt such mental gymnastics - it hung its hat on the "absurdity" of transfers including transfers by way of commercial sales.

The reality is that the search for "absurdity" in the legislation is a hopeless task. The only absurdity on offer is the absurd idea that the legislation is ambiguous.

This is fairly routine purposive construction of a statute, as opposed to textualist construction.

1. identify whether the statute's text appears to require something that the judge regards as "absurd" - ie a policy choice that the judge regards as ridiculous
2. if it does so, determine that the text is "ambiguous" - and invent a revised meaning, however remote from the actual one, that corresponds with the judge's notion of good policy.

It is straining for an acceptable answer, policy wise. Nothing to do with law. Just politics.