But No One Wants to Ban Guns!

You could have fooled me:

There are reports that the former Curves storefront at 2105 N. Pollard Street, in a small strip mall along Lee Highway, will be occupied by a gun shop. We, the citizens of Arlington County, oppose a gun shop at this location. We are alarmed that the shop is within 2 blocks of an Arlington County Public School that houses the HB Woodlawn Program and Stratford Program. Further, two elementary schools (Taylor and Arlington Science Focus), are only blocks away. Four additional schools are within 5 miles: Washington-Lee High School, St. Agnes, Key Elementary, and Glebe Elementary.

This is not a new idea. We sounded the alarm back in 2008 that Barack Obama was a proponent of the five mile rule for gun shops when he was an Illinois Senator. The idea has surfaced here and there ever since. Certainly this standard would ban gun shops most everywhere, except for very rural areas, but that’s the idea. It’s a backdoor way of banning guns and crushing the Second Amendment. If they came out and said they wanted to ban all guns, they’d lose all public support. So they come out and say something that sounds not quite so radical to the average low-information voters, and presto! You have a gun ban without making it sound like you want to ban guns.

I think the Second Amendment, properly interpreted, would bar any law that discriminated against gun dealers in zoning matters. It would not bar general zoning rules, such as those which distinguish between residential and commercial properties, but it would bar laws and ordinances clearly meant to frustrate the operation of businesses, rather than serving a legitimate government interest.

Much like the government must be neutral on matters of speech, so to must it be neutral on matters of gun ownership, including the right to sell firearms. The Second Amendment has to mean there is a right to sell firearms, albeit one subject to regulation according to Heller. You can find a lot of weak and lazy thinking about this on the other side in this area, such as this bit of commentary about a Minnesota car dealer that tried to have a gun giveaway with the purchase of a new car:

The dealer made claims about this being about the second amendment but the last time I checked there was nothing about a right to give guns away in a business deal. He also said callers were mean. I wonder if he means that the callers were insistent and emphatic in their opposition to the business deal.

When we’re “insistent and emphatic,” we’re “bullies.” When they do it, it’s fine. But let us not dwell on their rank hypocrisy, and get to the meat. In this case, since it was private pressure on the dealer that caused him to cancel the giveaway, the Second Amendment doesn’t apply here. The Bill of Rights only constrains government action, and not private action.

But if the Second Amendment is to be treated as other fundamental rights are treated, there is a presumption that the government needs to have a compelling interest, and the means the government uses to further that interest are the least intrusive method available. That’s strict scrutiny. Even intermediate scrutiny, if applied correctly by the courts (which it has not been in most cases) requires there to be an “important” government interest, where the law, ordinance, or regulation is “substantially related” to the promotion of that interest.

Now, let’s take a look at the case of a dealer giving away a gun through a federally licensed dealer. First, what government interest can we identify? “Reducing the number of guns on the street” is not an interest in light of gun ownership being a right. Keeping guns out of the hands of violent criminals is probably a compelling government interest, but since the person receiving it will have to undergo a federally mandated background check, that governmental interest is already at work here. They fail completely at the governmental interest part, whether you apply strict or intermediate scrutiny. The government can have no legitimate interest in reducing gun ownership levels, even if one were to accept the argument that reducing gun ownership in general reduces their availability to violent criminals. That would not be “narrowly tailored” or “substantially related.”

What about the ridiculous “not near a school rule?” Heller suggests that the government has a compelling interest in keeping firearms out of schools, since they are among the restrictions the Court said were “presumptively lawful.” Keeping guns out of the hands of children might be another compelling interest. But again, federally licensed dealers are prohibited from selling firearms to children. States can presumptively ban guns in schools, according to Heller, but would a ban on gun shops within 5 miles or even 1000 feet of a school be “narrowly tailored?” What interest would it be “substantially related” to? Again, by either strict or intermediate scrutiny, if applied correctly, these regulations do not pass constitutional muster. Such a law, if applied in the First Amendment context, would clearly be ruled “over broad” by the courts.

You will undoubtedly see more arguments along these lines, and it’s important to know how to take them apart and refute them. Make the other side look the uneducated fools. I don’t honestly blame them for summarily dismissing how we treat rights in this country, because their only hope left is to marginalize the Second Amendment, and somehow make it an outlying right. We should perhaps feel lucky they are so very bad at making those arguments.

UPDATE: See this map showing how five mile rule would work in Houston. How is this not a gun ban? “You can still own them. You just can’t really buy them, except for that one shop out in the middle of the desert that’s only open in the evenings. Only paranoid rednecks think the gun violence prevention movement is really a gun ban movement in disguise.”

15 Responses to “But No One Wants to Ban Guns!”

  1. Aaron says:

    I’ve posted two maps of Houston based on the 5 mile prohibition.


    • Joe Miller says:

      I can’t tell from the screen shot, but did you include preschools and private/religious schools?

      • Aaron says:

        I included a dot for the following search terms in google maps
        elementary school
        middle school
        high school

        Then I drew approximate 5 mile radius circles around them. They started covering each other up rapidly, so I know I missed a few.

  2. Alien says:

    I wonder how many porn and/or head shops there are in that area of Arlington…..

    Since preventing the gun shop from opening is a private effort, it would seem that there might be liability for damages should they be successful, at least as far up the chain as the lessor. According to the article, the state and county have approved, in the form of business licenses, occupancy permits and necessary certifications, indicating that under statutes and ordinances the business is legally entitled to exist, occupy that space and operate. If the lessor revokes the lease for terms not specified in the lease contract (I doubt “the neighborhood is unhappy about your kind of business” is mentioned in the lease), he’s certainly opening himself up to a potential lawsuit which, should such an event come to pass, I think the lessees should pursue action to the maximum amount of damages suffered.

    It would be interesting to see, after the store has been open for a year or two, to look at data and see what percentage of sales have come from the neighborhood(s) which have generated the loudest protest.

    • Patrick says:

      It would be interesting to see, after the store has been open for a year or two, to look at data and see what percentage of sales have come from the neighborhood(s) which have generated the loudest protest.

      Maybe, but Arlington is well traversed by commuters and heavily populated with government contractors, construction and other professional workers by day and night. In other words, it’s a hodgepodge of everyone from everywhere. For instance, it’s not unlikely that I would swing by the shop while working in the area, and I live in another state (if you live in the DC area, it is not unusual to move around a lot with work).

      But that is why the location is a good one for any business, and frankly I would not describe it as residential at all. Lee Highway in that location is basically one long strip mall. There is housing beyond the main road, but that’s pretty much all of Northern VA.

      I wonder how many porn and/or head shops there are in that area of Arlington…

      I recall seeing some adult-oriented places a little further down the road but not sure if that is Arlington or one of the many jurisdictions that have nebulous edges.Either way, it is a high-density location. Arlington is more lefty than you might suspect, but even so I doubt this is going anywhere.

      But as Sebastian points out, this is less about a single gun shop than the context of the larger stakes. The rights-deniers like to hide their true goals behind lies. Exposing them is what works, and what is needed every time these people do their thing.

      • Alien says:

        Patrick, BTDT. I grew up in DC and worked on K St. for several years. I know Lee Highway is a commuter road, but tracking the zip codes from 4473s should be easy, since nearly every gun shop now keeps electronic records. Tracking non-4473 sales would be more difficult.

        What I was looking for is how many of those of and among the locals now protesting the loudest might become future customers. That might be useful data the next time this type of fight occurs.

        I’ll agree that this is symptomatic of a larger problem, one that we need to hit head on. Paraphrasing a frequent comment from Insty, “A great man said we should punch back twice as hard.” This is, at its core, a basic rights issue that we should not shy away from, which is why I mentioned the potential for legal action to recover damages, should they occur. Those against us should not get a free pass when they seek to violate our Constitutional rights. There should be a cost associated with infringing on any Constitutionally-assured right.

  3. Roger Wilson says:

    I live in a small rural community. As the town is less that 5 miles across, the only FFL within miles is in town, it would be outlawed. As almost all small towns have a elementary school it would be impossible for any small town to have an FFL.

  4. Alpheus says:

    I don’t drink or smoke, but if we played this game with alcohol and tobacco, how many convenience stores would be forbidden from selling these things?

    But it’s for the children! So we have to do it, right?

    (I have a brother-in-law who works as a City Planner, and I seem to recall him once talking about how it isn’t Constitutional to completely “zone out” an industry–in this case, it was “adult” magazines–so if they don’t want adult shops popping up anywhere, then they had better zone such things in a “safe” place, like in the industrial sections of town. I have a sneaky feeling that the same will happen to gun shops, if this nonsense is seriously pursued…)

    • Renegade_Azzy says:

      But, teh taxes go to children’s healthcare, so you better smokem if you got em, for the children!

  5. Sigivald says:

    We are alarmed that the shop is within 2 blocks of an Arlington County Public School that houses the HB Woodlawn Program and Stratford Program

    Do they imagine that people buy a gun and then just randomly start firing it at the nearest large building?

    How does that even remotely matter?

    I want to actually ask them and see if there’s a coherent response rather than the emotional reaction of “Magical Gun Murder Field Causing School Deaths Shut Up Stop Asking Me To Explain It”.

  6. Burnt Toast says:

    The five mile rule is pretty clever. Most Great Lakes States are based upon a six mile square township. Every township has at least on park, and at one time a schoolhouse plopped down in the middle of it.

    Then you have BHO’s Hawaii background. I don’t think it is possible to get more than a couple of miles away from a park/public land in that state.

  7. Archer says:

    I just did up a map of what a paltry (by comparison) one-mile rule would do to Salem, Oregon.

    The scale is different, but it looks pretty much the same as kotetu’s map of Houston.

  8. Scott says:

    I know I am late to this party, and I never comment here, but….

    I work(for now, heading to PA soon) at a university about 1.5 miles from where this store is going up.

    North Arlington is two things. 1: NIMBY and 2: So blue that they cannot see anything other than blue (does that make sense?)

    Personally I am happy as shit that this store is going in. It will make the locals angry. They get angry over everything. I seem to remember one of the local churches was sued because they ran bells at noon. Yeah a church got sued for bells. There was another kerfluffle a few years back when a property owner had a topless mermaid carved into a dead tree in the front yard. The mermaid faced the house so you could not see anything.

    They want homeless shelters but only in South Arlington where the immigrants live. Do not want to see homeless you know! Could bring down property values.

    I wish I was staying in the area for a little longer, if only to buy a gun from this shop on opening day.

    Its funny, I actually live in Manassas VA and I am about 300 yards from a school. I am in walking distance of at least 2 gun stores and a third if you count Dicks. Plus one of the nicest ranges I have ever been too. No one gets upset. Even a one mile rule from

    Anyway, not sure this added anything to the conversation. Sorry.

    • Alpheus says:

      There’s no need to apologize. I think we all make rambling comments every once in a while!

      Even so, I, for one, appreciated your thoughts.


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