The study will look at how viable it may be to challenge the state law, how costly it would be and how likely the city may be in succeeding.
The Fargo City Commission voted 4-1 Monday, June 14, to study the challenge, with Commissioner Tony Gehrig in opposition.
The situation arose after a state law championed by State Rep. Ben Koppelman, R-West Fargo, contradicted the city’s zoning law and declared it void.
The law is rather simple and states “a political subdivision, including home rule cities or counties, may not enact a zoning ordinance or 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.”
Commissioner Dave Piepkorn said he wanted to see a case challenging the new law go to court.
The process would likely involve a city resident suing the city if they kept the zoning law, and then the city would defend its actions in court, Johnson said.
“This will allow retail gun stores in your neighborhoods. It’s preposterous,” Piepkorn said about the change, which the city planning department recommended allowing because of the new state law.
The City Commission action was a topic of conversation at a Tuesday night meeting of the local Moms Demand Action organization, a group of about 500 that advocates for gun violence prevention.
Leader Cheryl Biller said they thought the state law made it a “foregone conclusion” that the city zoning would have to change, so she was “surprised” by Piepkorn’s comments and proposal.
“Easier access to guns doesn’t make us a safer community,” she said as about 15 members of the core group gathered for a planning meeting.
Piepkorn said there’s already a precedent if they went to court, as the city in its zoning laws also bans adult entertainment businesses in neighborhoods. That situation is similar to the Second Amendment argument over allowing gun businesses, because adult entertainment businesses are protected under the First Amendment freedom of expression and the Constitution, he said.
“I believe we’ll win, and it might be that we would have to go above the state level if we believe the Constitution says we can do this,” Piepkorn said.
“If you guys are up for it, I’m up for it. I say let’s go,” he said, adding he was tired of legislators telling “us how to do zoning in Fargo.”
Commissioner Arlette Preston said the issue for her was also local control.
“There’s been numerous issues where the state has overridden local control,” she said. “This might be the test case.”
Commissioner John Strand said the state is constantly passing laws and spending millions of dollars defending anti-abortion legislation.
“I don’t think we are out of line for standing up for what we believe in here in Fargo,” he said. “I hope we can find a way forward.”
Commissioner Tony Gehrig said the city wouldn’t win.
“Local control isn’t a legal defense,” he said.
The city shouldn’t be “spending a bunch of money” on a case that will be lost, he said. Gehrig said the issue at this time isn’t about guns but about going against state law.
“It’s time to lick your wounds. You didn’t win this one,” he said.
Only one speaker appeared during the public hearing on the zoning law change.
Peter McDonald told the commission, “I wish you guys would represent us instead of us having to go the state to change the law..”
He said they had been trying for six years to get the zoning regulation changed.
Another argument for the zoning change was that some smaller licensed federal firearms dealers would simply use their homes as a base for their part-time occupation of assisting in transfers of licenses for firearms for other residents.
Those dealers handle the federally required registration of firearms that is needed when a person purchases a gun from someone else or through the internet. Because of the zoning law, a few dealers had to find business zones to do the work.
Because of the part-time nature of the dealers, supporters of the zoning change argue it wouldn’t involve a steady stream of guns going in and out of neighborhoods.
Biller said her group would “rally around a potential challenge of the state law.”
Although they have “moms” in their name, the 6 million nationwide members include “dads, aunts, Republicans and gun owners who support common sense gun laws.”
“We’re not against guns or the Second Amendment,” she said. “We think we can coexist nicely.”
Biller said they simply want to advance “gun safety policies,” and the Fargo neighborhood ban fits in with their goals. She said her group focuses mostly on school safety, safe gun storage and suicide prevention.