May 2023
[Adapted from Owens, Land Use Law in North Carolina (4th ed., 2023)]
Statutory Provisions
Gun Sales
Since 1994, federal law has required applicants for federal firearms licenses to certify that “the business to be conducted under the license is not prohibited by State or local law in the place where the licensed premise is located.”[1] This federal-licensing process for places selling firearms includes a zoning-compliance review.
In 1996, the General Assembly established a policy of uniform state standards for a number of local regulations on guns, including restricting local zoning control of various aspects of gun sales.
Under G.S. 14-409.40, zoning regulations must treat the sale of firearms the same as any other commercial activity and must treat firearm shows the same as any other commercial show; more-restrictive regulations cannot be applied on the basis of firearm sales.
This law does provide some flexibility to address safety concerns near schools. It allows zoning regulations to require a special use permit for any commercial activity within a set distance from a school as well as adoption of a permit standard that the uses must not pose a danger to the health, safety, or welfare of those attending the school.
Shooting Ranges
The General Assembly modestly limited zoning regulation of sport-shooting ranges in 1997.[2] G.S. 14-409.46 primarily limits the applicability of noise ordinances and the liability under private-nuisance actions for the owners of sport-shooting ranges. The law also prohibits zoning regulations from amortizing some nonconforming shooting ranges by providing that a shooting range that was lawfully in operation as of September 1, 1994, must be allowed to continue to operate, provided there has been no substantial change in the use. The law does not otherwise limit local regulatory authority regarding the location and construction of sport-shooting ranges.
Second Amendment Limits on Regulation
Highly restrictive regulations or bans on shooting ranges and the location of stores selling guns raise Second Amendment issues.
The Court in District of Columbia v. Heller,[3] held that the Constitution protects an individual’s right to bear arms. The Court noted, however that like First Amendment protection of free speech, the constitutional right to bear arms is not unlimited.[4] Similarly, in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[5] the Court invalidated a state regulation on carrying handguns in public. The Court held that to be permissible, regulations affecting the right to bear arms “must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[6]
The application of this rationale to land use and development regulations, such as zoning restrictions on the location of shooting ranges or on places for gun sales, has produced mixed results.
In Ezell v. City of Chicago,[7] the court invalidated regulatory provisions that limited shooting ranges to manufacturing districts and required a minimum separation of 500 feet from residential districts, schools, places of worship, liquor retailers, libraries, hospitals, and other specified uses. This left only two percent of the city’s land area potentially available and required a special use permit in those areas. In Drummond v. Robinson Township,[8] the court noted that restrictions on guns that were supported by “historical evidence” and “long-settled traditions” are permissible. If not in that category of regulation, intermediate scrutiny is applied to determine if the regulation serves a “significant, substantial or important” governmental interest and does not burden more conduct than reasonably necessary. The court applied that test to invalidate a limit on the types of weapons that could be used at a shooting range.
By contrast, the court in Teixeira v. County of Alameda,[9] upheld minimum-separation requirements from sensitive uses applied to gun-store locations. The court noted that unlike the situation in Ezell, where shooting ranges were effectively prohibited, this ordinance left ample opportunities in the jurisdiction for gun sales, and there were in fact other gun stores already operational in the area.
[1]. 18 U.S.C. § 923(d)(1)(F) (2006). Also see the cases on the Second Amendment limits on gun regulations discussed in the section on shooting ranges below.
[2]. In addition to land use regulatory authority, G.S. 160A-186 and 153A-129 explicitly authorize cities and counties to regulate or restrict the discharge of firearms “at any time or place” (with limited exceptions). Some jurisdictions use this authority to place certain areas off-limits for the discharge of firearms (e.g., within a specified distance from a school, place of worship, or residence).
[3]. 554 U.S. 570 (2008). The Court invalidated a District of Columbia law making it illegal to carry an unregistered handgun.
[4]. “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626–27. The Court noted that this list of presumptively permissible regulations was not exhaustive.
[5]. 142 S. Ct. 2111 (2022).
[6]. Id. at 2130.
[7]. 846 F.3d 888 (7th Cir. 2017). The regulation also prohibited entry to shooting ranges by those under the age of eighteen, which was upheld as minors do not have Second Amendment rights to bear arms.
[8]. 9 F.4th 217 (3d Cir. 2021).The township had revised its regulations to allow only a pistol range, skeet shooting, and rim-fire rifle practice. The court found there was no historic evidence of regulations limiting training with common weapons where firearm practice was otherwise allowed.
[9]. 873 F.3d 670 (9th Cir. 2017).
