The other day I reported on a town warrant, the equivalent of an ordinance, that was introduced in Sudbury, Massachusetts. The warrant was actually raised by citizen petition. What was on the table? The outlawing of commercial sales, manufacture, assembly, etc. of firearms and firearm accessories within the town’s limits. The Sudbury annual meeting was scheduled for May 1, 2023, however the matter did not come up, with the meeting to continue on May 2nd. At the second half of the annual meeting, TM-2023 – Article 55 Control of Firearms Zoning did come up, and it was voted down by both the board and more than the majority of the citizens present.
The town’s legal council weighed in with a lengthy six page letter that was released on May 2nd on the subject. In the letter, the council was basically advised against the passage of the warrant as the verbiage of it – as it stood at the time – if challenged would be found to be void due to vagueness.
In our opinion, the proposed warrant article, if passed, is also at significant risk of being deemed vague or judicially challenged on the ground of vagueness and, also, may pose enforcement issues for the zoning enforcement officer. Courts have long held that “an ordinance or by-law . . . ought not to stand when it is so vague and ambiguous that its meaning can only be guessed at.” O’Connell v. City of Brockton Board of Appeals, 344 Mass. 208, 212 (1962). The proposed warrant article, unlike the bylaws and ordinances in Brookline, Dedham, and Newton discussed above, does not have any defined terms. Thus, the terms “Sales, Assembly, and/or Manufacturing of Firearms and/or Components thereof, Ammunition, and Explosives” are left to interpretation, including with respect to any non-commercial use. This omission might render the proposed warrant article, if it is passed, unconstitutionally vague.
It was reported that the Select Board did vote against the measure at 3 to 2 vote. That’s not very comforting concerning the fact that their legal advisor advised against passing the measure for several reasons in their letter.
The citizen who authored and ran the petition for the warrant was Frank Riepe of Sudbury. Riepe read the warrant in full as well as offered up his opinions on the topic. Several misleading “facts” were used to talk about the scourge of so-called gun violence. Riepe seems well intentioned, however his energy is grossly misplaced in how he thinks he could make a difference to stop so-called gun violence. Riepe adamantly stated that the warrant is not an infringement on the Second Amendment, but just because he said it, does not make it so.
There were two citizens that spoke against the measure which is worth noting.
One of the citizens identified himself as a hunter, gun owner, and member of the Gun Owners’ Action League. This individual eloquently pointed out that gun owners feel that they are under attack, and that none of these freedom limiting laws will do anything to curtail violence, but rather affect the law-abiding gun owner. The gentleman noted that there’s no reason for the town to get ensnared in a costly legal battle, ultimately wasting taxpayers’ dollars over a measure that is unconstitutional. He further expressed not wanting his town to end up in the middle of a nasty media circus from all the negative attention something like this measure would bring to the town.
The other gentleman that spoke ran through a number of statistics. Some of the information that was brought up was about comparing other towns in Massachusetts that implemented similar measures and how Sudbury has lower instances of crime than those areas. In essence, he pointed out the mottness of something like the measure.
An individual speaking as a proponent of the warrant noted that nothing in it would stop someone from buying or owning a firearm. While there are no gun stores or manufacturers in Sudbury at this moment, outlawing the practice would very-much-so-be unconstitutional, beyond the fact there’s no historical analogues to support such a measure. The historical analogue that proponents of the warrant have to lean on is that Massachusetts residents used to hang those they decided to call witches – for whatever reason. Gun owners are the new witches.
None of the analogues that proponents of the measure brought up had anything to do with civil liberties. Talking about other things that might be outlawed in Sudbury or other towns is entirely moot when the topic at hand is a Constitutional right. Not being able to buy weed in certain towns does not make outlawing the sales of guns legal. The same people using other prohibitions as analogues are ironically hypocritical as they use their First Amendment right to petition their local government.
A vote was had by the citizens present and 59 voted in favor for the measure, 107 against the measure, with a total of 166 tallied up votes. Between the citizens’ votes and board’s, this was a victory for gun owners in Sudbury and the Bay State at large.
The disconcerting thing is there seems to be some interest to revisit the measure and narrow it down to where legal would find the measure to pass constitutional muster. Comments made indicated that if Riepe hone the warrant with the board, it could gain passage. Also disconcerting is that 2 board members did vote against what would be considered legally shaky by their own council. That calls into question where the board actually stands. If the warrant was tighter and left less room for challenge, would they have voted to outlaw the Second Amendment? Hard to tell.
My message to Sudbury Select Board and the citizens of Sudbury is that should this measure pop up again in the future and it passes, the town would eventually fall into some sort of legal trouble in the future. The bills would be costly and ultimately you’d lose. Losing on civil rights violations means paying the legal fees of those damaged. What will come in the future in Sudbury? Hard to tell. But they are on the map now and we’ll be watching them very closely.
I’d like to give out a massive hat tip to the Gun Owners’ Action League. It was through their weekly mailer that I was alerted of this situation in the first place. I urge readers to check out their site and consider joining.
