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Port: It's Fargo city attorney's job to advise city on restricting home-based firearms dealers, AG says

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Jeff Mack, owner of Mack Tactical Customs Firearms & Gunsmithing LLC, operates out of his south Fargo home. Ryan Stotts / The Forum
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MINOT, N.D. — Some residents of the city of Fargo want their community to keep a ban on gun transactions taking place in private residences, despite zero evidence that those transactions have caused a problem.

If you haven't been following this debate, allow me to illuminate the issue with some backstory.

Circa 2007, the city of Fargo passed an amendment to its ordinances, which outlawed firearm transactions in private homes.

The feds didn't get the memo, because the ATF, who is in charge of federal firearm licenses, continued approving Fargo's in-home dealers until 2016 when they realized Fargo had made in-home transactions illegal.

It is the ATF's policy not to issue licenses to in-home dealers when the local political subdivision the dealer lives in prohibits in-home dealing.

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The laws governing the sale or transfer of firearms can be, depending on the situation, quite exacting. For instance, if you purchase a gun on the internet, it must be delivered to someone holding a federal license. They cannot, by law, ship it directly to you.

The license holders charge a fee for administering the transaction.

These license holders often don't have brick-and-mortar businesses. They conduct the sales or transfers out of their homes. In practice, many are less dealers than facilitators. This sort of thing happens all over North Dakota and, indeed, all over the country.

Fargo's in-home dealers want the city to lift the ban so they can get their licenses renewed, but some Fargo officials are opposed.

"Most of us know guns are associated with violence and accidents, and I think it would be detrimental to a neighborhood," Dawn Morgan, a member of the city's planning commission, has said .

That's an ideological argument. Morgan doesn't like guns. But how does that add up to a case for allowing lawful trade in firearms for which there is no evidence of a problem?

"Police Chief David Todd has said he hasn't had any complaints about the seven licensed dealers in the city and that they undergo extensive background checks," Forum reporter David Olson wrote in May .

Fargo's City Commission is considering a change to city policy, but one question that needs an answer is whether it's legal for Fargo to ban these transactions.

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To answer it, City Attorney Erik Johnson requested an opinion from the Attorney General's Office.

The response? The AG's office told Johnson that being the city of Fargo's attorney is his job.

"There are some situations that are unsuited for an opinion, including when the question calls for interpreting a local ordinance," Chief Deputy Attorney General Troy Seibel wrote in a letter to Johnson. "The city attorney continues to be ultimately responsible for interpreting city ordinances and advising city officials on legal issues."

So far, Johnson has been advising city leaders that the current ordinance is legal.

"In response to a question from Commissioner Strand asking whether the position is legally defensible or whether he has concerns about defending current or potential changes in status, City Attorney Erik Johnson said it is defendable and he does not believe there is a legal hook either way, it is a values issue," the minutes from the June 15 city commission meeting state. "He said he does not think there is a Second Amendment-type issue related to this and similarly there is a State statute that precludes cities from regulating the sale and transfer of firearms that does not prohibit local regulations from determining locations where firearm sales can occur. Other states with similar situations have had court decisions that support city zoning regulations."

I don't believe this is good advice.

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The statute Johnson references — section 62.1-01-03 of the North Dakota Century code titled, "Limitation on authority of political subdivision regarding firearms" — does create a problem for Fargo's ordinance.

Here's what it says:

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That law says Fargo "may not enact any 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."

Johnson and other proponents of Fargo's status quo suggest the ordinance is not restricting gun transactions, just regulating where they can happen. But currently, state law does not restrict gun transactions in private residences, which means Fargo's ordinance is more restrictive.

And thus, by a plain reading of the law, illegal.

It doesn't matter that the ordinance in question is a zoning ordinance. State law references "any ordinance," and that would include zoning.

I do think Johnson is right that this isn't necessarily a second amendment issue. Time and place restrictions on gun sales exist in other places and have been upheld by the courts. The matter at hand is a local control issue. State law makes it clear that Fargo may not enact regulations for guns that are more restrictive than state law.

Some in Fargo may not like state law, and to that end, they have options available to them, including electing like-minded people to the Legislature. But, as it stands, the law says what it says, and Fargo ought to follow it.

To comment on this article, visit www.sayanythingblog.com

Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .

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Related Topics: FARGO
Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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