A judge has dismissed challenge on gun control restrictions

BISMARCK, N.D. >> A judge has dismissed a lawsuit filed by North Dakota's largest city that challenged a new law banning zoning ordinances related to guns and ammunition.

Fargo sued last year, calling the law unconstitutional and a swipe at the city's home rule powers. State District Judge Cherie Clark on Tuesday granted the state's motion for summary judgment and dismissed the city's complaint.

“While the Court agrees that (the North Dakota Constitution) intends for `maximum local self-government,' the law is not settled that this language alone provides home rule cities the right to legislate on topics the state legislature has limited,” the judge wrote.

But she also expressed concerns about the Legislature's actions: “If the legislature continues to pare home rule powers, home rule cities lack the discretion to address important issues impacting their respective and unique communities.”

Fargo has an ordinance banning people from conducting certain businesses out of their homes, including gun and ammunition sales, mortuaries, dog grooming and vehicle repair.

In 2020, about 33% of federal firearms licensees operated from residential premises, surpassing all other types of zoned locations, including commercial, according to a report from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Massachusetts is the only state where home-based gun dealers are banned, but many local governments may enact zoning laws that prohibit the practice, according to information from Brady, which advocates for gun control.

Residential or “kitchen table” dealers present concerns that include the possibility of relatives living in the home where they operate, business records and gun inventories becoming mixed with personal items, and dealers working another job that might hinder them from keeping up with regulations, according to Brady. No federal laws require guns' safe storage at a dealer, and homes are less likely to have the “robust” security measures against burglary and robbery, according to the group.

The ATF St. Paul Field Division couldn't immediately provide data on home-based dealers, but noted that licensees whose business premises are their residences are relatively common in the area. The agency doesn't keep a list of cities with ordinances similar to Fargo's, but said others do exist.

Last year, North Dakota's Republican-led Legislature passed the law restricting the ability of cities and counties to regulate guns and ammunition, including purchase, sales and possession. The law took effect in August. It voids existing ordinances.

Previously, Fargo successfully challenged a similar 2021 law.

Mayor Tim Mahoney said city officials will meet with their legal team on next steps.

“The previous time that we challenged it, it did it come back in our favor, so that's what we're going to have to see — what's changed and do we need to take a different position on it,” he said.

In its lawsuit, the city said it doesn't want residents to use their homes as gun stores but added that the case hits at a larger issue of whether the Legislature can “strip away” Fargo's home rule powers, which allow the city certain authority, such as zoning public and private property.

Republican Rep. Ben Koppelman, the 2023 bill's sponsor, told a Senate panel last year that the issue came to greater attention in 2016 when, because of the ordinance, the ATF refused to renew the federal firearms licenses of Fargo dealers who sold out of their homes. At issue in the bill was whether gun regulations should be a locally or state-controlled issue, he previously said.

Koppelman welcomed the ruling as the right decision upholding that there are “certain things reserved under the jurisdiction of only the state.” Likely less than a dozen dealers were affected when Fargo's ordinance came to a head, and as few as five or six dealers might remain now, he said.

“I think that if the desire is for the city of Fargo to be like a stand-alone kingdom or city-state or whatever they wish they could be, obviously this didn't go their way,” Koppelman said.