About 750,000 people visit the scenic and historic town of Eureka Springs, Arkansas every year, and Keeling Grubb believes many of them (along with the 28,000 or so folks who call Carroll County home) would be interested in what he has to offer at Eureka Gun & Pawn… or at least what he’d like to offer. While Grubb’s store has been open for business since May, neither guns nor pawned items have been available for sale thanks to a simmering dispute between Grubb and city officials who seem intent on keeping a gun store out of the small town.
We’ve written about Grubb in the past, most recently when the Eureka Springs City Council denied his request for a condition use permit that would allow him to operate his gun and pawn shop as advertised. After the council voted down his request 4-2, Grubb said he planned on suing, and he’s done just that. Unfortunately for the business owner, a Carroll County Circuit Court judge has denied his request for a temporary restraining order that would have enabled him to start selling firearms from his storefront location.
In Thursday’s order, [Circuit Judge Scott] Jackson noted that the Planning Commission and City Council “considered the opinions of adjacent property owners and other persons affected” in reaching their respective decisions.
Eureka Springs currently has no permitted gun or pawn shops. City Clerk Ida Meyer said the last legally permitted gun shop in Eureka Springs was Invictus Arms, which had a permit in 2014 and 2015, according to city records.
On July 11, Grubb’s attorney, W. Whitfield Hyman of Fort Smith, filed a lawsuit against Eureka Springs saying the city’s attempt to ban the sale of firearms is unconstitutional and violates state law.
“The City’s distaste for a certain type of lawful business is not a constitutionally legitimate basis for prohibiting the Plaintiffs from operating their business in Eureka Springs,” wrote Hyman.
Hyman wants the city to reverse its decision and issue a permit for Grubb to operate a gun and pawn shop, or in the alternative, a permit for either a gun shop or a pawn shop.
Eureka Springs isn’t the only town that’s used zoning laws to keep gun shops from opening their doors. This has long been a problem in big cities like Chicago, which has used its zoning laws to block the development of any gun shops or ranges for years, but it’s becoming a growing issue in smaller towns across the country, from Redwood City, California to the Boston suburbs.
We haven’t seen too many big legal challenges to these gun shop bans, at least not since the Bruen decision came down last June. For many retailers, it’s not worth the expense of fighting City Hall or the local zoning board when there are other locations in nearby communities where they can open without issue. There’s a case currently pending in the Sixth Circuit that’s adjacent to this issue, but it involves a Michigan township’s denying permission to Oakland Tactical to build a 1,000 yard outdoor range, not a gun store.
Grubb’s case was filed in Carroll County Circuit Court, so he’s not making a federal case out of the denial… at least not yet. But with his attorney still making a constitutional argument, this will be one of the first challenges to these kinds of zoning laws in our post-Bruen landscape… at least if the case isn’t settled before a trial begins early next year.
One of the arguments we’ve heard before is that while there might be a right to keep and bear arms there’s no constitutional right to sell them, so cities are free to set whatever restrictions they’d like. The counter to that argument is that if we possess the right to keep and bear firearms, there must also be an implicit right to acquire them as well. And if we have an individual right to purchase or take possession of a firearm, then that must also mean there’s a corresponding right to sell or transfer a firearm as well. Governments may be able to impose regulations on those sales, but they can’t prohibit them completely.
Arkansas state law allows municipalities to regulate the construction and location of a shooting range, but the law is silent when it comes to gun stores. The state’s firearm preemption law does preclude municipalities from enacting an ordinance or regulation that regulates, in any way, the transfer of firearms, but the city attorneys are likely to argue that the zoning laws weren’t enacted to specifically prevent gun sales from taking place.
I don’t know how this case will ultimately turn out, but I appreciate Keeling Grubb sticking to his guns (so to speak) and making the legal case that his shop should be able to open for business in Eureka Springs. It may be a small town, but the actions of the city council there have created a big issue, and one the courts will hopefully resolve in his favor.