The city of Fargo imposes a number of restrictions on home-based businesses, but it's not the prohibition on dog groomers or mechanics that's being challenged by attorneys for the state. Instead, it's the city's ordinance barring home-based FFLs that forced the state to file suit against the city, and on Wednesday the state's highest court heard from both sides in a case that could determine the future of North Dakota's firearm preemption statute. 

Fargo’s ordinance prohibits a firearms and ammunition sales business from operating in areas zoned as residential.

It had been on the books for several years before the state Legislature passed House Bill 1340 in 2023 to prohibit cities, counties and other political subdivisions from passing an ordinance relating to buying and selling guns and ammunition.

[Attorney Peter] Zuger argued that the law is unconstitutional because the North Dakota Constitution says local law supersedes state law on local matters.

If the state can overrule the Fargo gun sales ordinance, it can overrule any local ordinance, making the concept of home rule for local governments obsolete, he argued.

The North Dakota League of Cities filed a brief in support of Fargo’s case.

“The Court’s decision in this case will impact the 145 home rule cities’ ability to exercise maximum self-government granted by its city electors,” the brief stated.

That's true enough. The question before the court is whether those home rule cities have the ability regulate or restrict anything having to do with the right to keep and bear arms, or whether the state's firearm preemption law gives the legislature the sole authority to make gun policy. 

Justice Lisa Fair McEvers questioned what makes selling guns a “purely local issue.”

Zuger said the ordinance only affects Fargo residents who are selling guns in their homes. “That doesn’t affect anybody else outside the city,” he said.

McEvers also questioned why the city wants to ban the sale of guns in homes.

The city is protecting the health and welfare of its citizens, Zuger said. “Fargo’s position is that the health and welfare of its citizens mandates the sale of firearms in select locations,” he said.

McEvers expressed doubt about that claim. “How does selling a firearm out of a house trigger those reasons?” she asked. “What about selling out of a house triggers someone’s health or welfare or any of those things?”

Guns are potentially dangerous, especially in residential areas near children, Zuger said.

FFL's are subject to the same state and federal regulations regardless of where their business is located, so how exactly is Fargo's ordinance improving residents' health, safety, or welfare? Zucker's explanation about the potential dangerousness of guns suggests that the city wouldn't just impose restrictions on federally licensed gun dealers if officials thought they could get away with it, but impose prohibitions and penalties on Fargo's gun owners as well. 

This ordinance seems to be nothing more than an attempt to curtail gun sales inside the city limits by forcing FFL's to pay for a brick-and-mortar location for their business; an expense that many small FFLs or those who operate a gun business on a part-time basis simply can't afford. And contrary to the city's claims that no one outside the city's limits are impacted by the ordinance, if the law in question has a chilling effect on the number of FFLs operating in the Fargo area, then gun buyers who live beyond the city limits but do their shopping in Fargo have fewer options to purchase a firearm than they would otherwise. 

In arguing for the state, [North Dakota Assistant Attorney General Courtney] Titus said Fargo wants the state Supreme Court to ignore precedent that allows the Legislature to provide for the establishment and governance of home rule charter authority. The Legislature is not limited in how much authority it can provide to cities, she said.

The Legislature has determined selling guns is not a “purely local issue,” Titus said.

“Home rule cities don’t have authority beyond what the Legislature provides for them,” she said. “They were never intended and are not to be mini sovereign states, and they can’t act without the Legislature previously acting and providing them authority.”

Some opponents of Fargo's ordinance say cities will be able to pass all kinds of local restrictions on the right to keep and bear arms if the state Supreme Court rules in favor of the city. The attorney for Fargo tried to downplay that threat under questioning from the justices, arguing that since the state doesn't have any laws on the books regulating where commercial gun sales can take place, the city's ordinance doesn't directly implicate the preemption law. 

It sounds like Titus did a good job of refuting those claims, but we likely won't get a ruling from the justices for several weeks. In my non-lawyerly opinion, this should be an easy call for the justices to make. The state legislature has passed a law forbidding local governments from passing their own gun restrictions, including on sales of firearms. That's well within the legislature's authority, and Fargo's law does indeed to too far in assuming powers the city and its leaders don't possess.