Newton’s proposed gun store ban could invite Second Amendment court challenge, experts say

Newton officials are considering whether to ban gun shops from the city after recently passing new zoning rules to regulate the businesses.Suzanne Kreiter/Globe staff

A proposed ban on gun stores and other firearms businesses in Newton has divided local gun control advocates and raised concerns that the measure may draw the city into a court fight over the constitutional right to bear arms.

A public hearing is scheduled Monday on the proposed ban being considered by the Newton City Council.

Earlier this month, the Council approved zoning rules that leaders said would strictly regulate gun stores and other firearms businesses in Newton. The zoning was developed after a local businessman sought to open a gun store in Newtonville, and the new rules do not permit firearms businesses in that location.

Darrell A. H. Miller, a law professor at Duke University School of Law and codirector of the Duke Center on Firearms Law, said Newton faces the “live risk” of litigation if the city implements a ban against gun stores.

“If you end up banning gun stores by law from the region, somebody is going to raise a Second Amendment issue,” Miller said in a phone interview. “And an issue that hasn’t been adjudicated, will be adjudicated on that basis.”

The debate has also roiled gun control advocates who want to keep gun stores out of Newton, but disagree on how to do it.

Laura Towvim, a local gun control advocate who helped organize opposition to the Newtonville store, said the zoning rules approved by the City Council are incredibly strong and legally defensible.

“A zoning ordinance is the most effective way to stop gun stores from coming here,” Towvim said in a phone interview. “Going the next step and enacting a ban seems like an unnecessary risk for our city, and I believe it creates risks for the country.”

But a group of city councilors and residents have said Newton should go further, and have called for an outright ban on firearms businesses.

Councilor Emily Norton said a vast majority of Newton residents who have contacted her would support an outright ban on gun stores.

“I want to take a firm stand against access to guns,” Norton said. “I don’t think they need another option in Newton, people don’t want it near them. I think we should respect that, and try to make it happen.”

In January, Joseph Kammouj notified Newton’s police department he was working to open Newton Firearms at 709 Washington St.

Community opposition to Kammouj’s store spurred Mayor Ruthanne Fuller and city councilors to create zoning for gun shops and other firearm businesses.

The new regulations approved by the City Council limit those businesses to a handful of spots in the city, grant city councilors permitting authority, and create buffers between gun shops and places like residential areas.

While there is support for allowing gun stores in Newton — nearly 1,000 people have signed onto an online petition backing them — much of the local debate has been among gun control advocates split over the proposed ban.

John E. Rosenthal, president and cofounder of Stop Handgun Violence, told Fuller and city councilors in an e-mail last month there is broad support for banning gun shops in Newton.

“Only by disregarding the fears and taking a bold stand have we been able to pass the most comprehensive and safe gun laws in the country,” Rosenthal said.

Janet Goldenberg and Edward Notis-McConarty, leaders of the Massachusetts Coalition to Prevent Gun Violence, argued that there were “terrible risks” in a gun shop ban.

The city’s attorney, Alissa Giuliani, has warned that a ban “would not withstand” a legal challenge.

“Put bluntly, when considering the risks of litigation in the name of fighting the good fight, the real risk here is that the City’s ability to regulate gun stores could be diminished, if not removed entirely, and that decision would impact every community in the country,” Giuliani said in a memo to city councilors last month.

Miller, the Duke law professor, said if a court determines a city must allow certain types of gun-related businesses, there would likely be more litigation over what kinds of limits can be placed on them, such as operating hours or their proximity to schools.

“Is there a risk to ordinary zoning rules to be challenged as Second Amendment violations? Yes,” he said. “Will they win? The jury’s really out.”

Timothy Zick, a law professor at William & Mary Law School, said that in general, longstanding commercial regulations are “presumptively lawful” under the Supreme Court’s 2008 decision in the case District of Columbia v. Heller, which recognized a person’s right to possess a gun under the Second Amendment.

But it is not clear that bans on firearms acquisition would be included, he said in an e-mail.

“Although a potential firearms purchaser likely does not have a constitutional right to have a gun store in a particular location, a court might conclude that geographic bans ... interfere with the right to acquire firearms,” Zick said.

John J. Donohue III, a law professor at Stanford Law School, said it would be a safer route for Newton to pursue zoning controls on gun stores, rather than banning them outright.

“If I were in the city’s position, I might take a regulatory [approach] as opposed to outright bans, because those seem to have a better chance of being sustained in this very pro-gun environment with so many Trump appointees,” Donohue said in a phone interview.

Since Newton began working on regulating gun shops, officials in Brookline and Wellesley have begun exploring whether to implement their own rules.

Melvin Kleckner, Brookline’s town administrator, said the town is actively exploring zoning restrictions and other mechanisms to regulate gun stores. Officials will probably propose changes to Brookline’s general and zoning bylaws at the next Town Meeting in November.

Don McCauley, Wellesley’s planning director, said residents approached the town about creating regulations for gun stores after the issue came up in Newton. A public hearing is scheduled for July 18.

Towvim said other communities should view Newton as a “cautionary tale” and move to pass their own local gun store regulations.

“We were caught flat-footed without any zoning in place; we didn’t even know that was something we should think about,” Towvim said. “I hope other towns will use this as a way to proactively put in place protections.”

Norton said the city hasn’t protected itself from potential litigation by passing zoning; to keep gun stores out of Newton, the city needs a ban.

“Some people on the left think that we should be cowering, and hoping that the right wing doesn’t come after us. That’s not my theory of change,” Norton said. “I think you fight boldly for what you believe in.”