This little piece of witlessness made the rounds last week:
Can zoning laws settle the gun debate?
If there could be a “right” to be free of guns, the logical question is then how it should be asserted. The answer may be in zoning. Because gun rights are tied to personal security, there appears to be room for citizens to exclude guns in their immediate surroundings as one means of protecting themselves.
No.
The is no “right” to be free of guns owned by other people. Your rights do not extend to denying other people’s rights. One can choose to be free of guns by not owning one. One cannot choose to make anyone else not own a gun. You do not have a right to my property.
Because gun rights were tied to personal security, there appears to be room for citizens to exclude guns in their immediate surroundings as one means of protecting themselves.
Witkin cites Heller, and claims that a decision, which specifically ruled against firearms restrictions so onerous as to prevent possession, somehow supports… zoning laws that prevent possession.
For example, zoning at the neighborhood or even block level could allow people to assert a right to be free from guns. Zoning is a policy tool that courts have upheld even when it clashes with the constitutional rights of individuals, such as freedom of expression and the sale of guWill he volunteer to lead the stack in confiscation raids?ns.
And there he cites Teixeira to demonstrate that zoning laws can restrict Second Amendment rights. Wrongly:
The district court’s characterization of residentially-zoned districts” as “sensitive areas” is incongruous with Heller, which assumed that firearms could be restricted in sensitive places “such as schools and government buildings,” specifically in contrast to residences, where firearms could not be prohibited.
It seems unlikely that Witlesskin actually read Teixeira, any more than he read Heller. Teixeira did not uphold the restriction of 2A rights through zoning; it found that zoning which excluded a proposed gun store did not infringe upon a recognized right because there were other stores in the area where firearms could be purchased, and people could still possess firearms. That is the opposite of Witkin’s claim.
I repeat: Heller (and later McDonald) specifically ruled against firearms restrictions so onerous as to prevent possession.
No, you cannot zone away our rights.
Federal courts are pretty consistent in recognizing that one can’t simply wave away constitutional rights. Take a look at Winbigler v. Warren County Housing Authority, in which the plaintiff challenged a public housing lease provision banning firearms possession outright.
The Court hereby permanently enjoins and restrains Defendant WCHA from enforcing the following lease provisions:
5(h): The Resident, the Residents household members and household guests shall not: discharge or use firearms or fireworks, or store explosive or flammatory materials.
18(p): Any termination of this Lease shall be carried out in accordance with U.S. Department of Housing and Urban Development regulations, State and local law, and the terms of this Lease. The Landlord shall not terminate or refuse to renew the Lease other than for serious or repeated violation of material terms of the Lease on the part of the Resident, all members of the Resident’s household and all visitors/guests of the Resident such as the following: Offensive weapons or illegal drugs seized in the Landlord’s unit by a law enforcement officer or to permit any member of the household, a guest, or another person under the Resident’s control to use, possess or have control over firearms (this includes keeping firearms on one’s body, in the dwelling unit, or in a vehicle which the Resident or a member of the Resident’s household as the use of or access to. Firearms are defined as any devices which will propel a projectile with sufficient force to injure, kill, or damage property regardless of whether it does so with an explosive charge, compressed gas, or by other means).
Georgetown University should be ashamed of publishing that ignorant drivel, and more so of the rights-violation advocacy.
You can’t do it. Not by zoning, not by lease, not by HOA restrictions. But ill-informed people like Witkin will keep trying, so let’s move on to the practical problem of enforcement, which he glosses over.
Ideally, enforcement of gun-free zoning laws should be generally light, such as civil forfeiture or forced sale of the firearm, but harsher on violent criminals who possess guns.
Compliance. He, as typically happens, left out the “How”.
Specifically, how Witkin would ensure everyone complied with his gun-free neighborhood laws. How will he locate and seize Grandma’s bedside table revolver? Door to door searches? With a warrant based upon, “Gee, judge; we just need to see if anyone might be breaking our law”? Perhaps he can pass a warrant-free zone law as well.
I wonder if he’s considered the implications of kicking in doors because he thinks the residents are well armed. When California legislators first considered their “assault weapon” ban, the head of the police union declared they’d see the largest outbreak of “blue flu” in history if they had to do door to door searches. Legislators immediately modified their bill.
Does Witkin believe everyone (law-abiding and criminal alike) will meekly turn stuff in? California got a 2.33% compliance rate with just registration. Connecticut thinks they might have gotten 13.44% compliance with their “assault weapon” registration scheme.
How will Witkin bell that cat?
Will he volunteer to lead the stack in confiscation raids?
Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar. He could really use the money, what with truck repairs and recurring bills. And the rabbits need feed. Truck insurance, lest I be forced to sell it. Click here to donate via PayPal.
(More Tip Jar Options)
Ed. note: This commentary appeared first in TZP’s weekly email alert. If you would like to be among the first to see new commentary (as well as to get notice of new polls and recaps of recent posts), please sign up for our alert list. (See sidebar or, if you’re on a mobile device, scroll down). Be sure to respond when you receive your activation email!
