The North Carolina Supreme Court upheld one of the most basic principles of United States law this month. The law has been under continual attack for the last hundred years, during the rise of the "progressive" state.
A great many zoning ordinances around the country are based on "model" legislation that is pushed by central planners. One of the stated premises in the legislation is that anything that is not permitted is forbidden. From a discussion of a previous zoning case in North Carolina:
Virtually all zoning ordinances are based on the premise that the ordinance shall list certain land uses that are permitted in each zoning district and that those uses not expressly permitted are prohibited. Indeed, the “permitted-use table” is a staple in most ordinances. If a new activity arises on the zoning scene that does not qualify as a listed permitted use, then it is presumed that the use is not allowed unless the ordinance is amended specifically to allow it.That case involved the ability to use property to exercise Second Amendment rights. The owner of the property had been using it as a shooting range, the property had been annexed by a nearby village, they said the use as a shooting range was not allowed because it was not mentioned in the zoning ordinance. The appeals court upheld the use of the property for a range, and the case did not go to the North Carolina Supreme Court.
In the recent case, Byrd et al v. Franklin County, the appeals court found against Byrd, who wished to use his property as a shooting range. The County said that he could not, because a shooting range was not explicitly allowed by the zoning ordinance, therefore it was prohibited. The Supreme Court found that ordinances that forbid everything not allowed are invalid. In effect they raised the decision in the previous case to the Supreme Court level. The Supreme Court simply said that they reversed the appeals decision for the reasons given in the dissenting oppinion:
For the reasons stated in the dissenting opinion, the decision of the Court of Appeals is reversed.Here is a discussion of why this is important to more than Second Amendment supporters. From lockerroom.johnlocke.org:
Based on the holding in Land, I am bound to conclude that the UDO's provision prohibiting all uses not explicitly allowed in the ordinance is in derogation of the common law and is without legal effect.
(A very sound legal opinion based on the Common Law principle that “That which is not expressly illegal is legal”. This principle flies in the face of the Roman Law, Napoleonic Law and the modern French Code Civil, which holds that “That which is not expressly permitted by government is inherently unlawful.”)
(In turn, this Common Law approach is why the US Constitution is very succinct, and focuses on the civil rights of citizens and the limitations of government; but the EU constitution is a phone book of incredibly petty trivia, an effort to regulate everything in advance, yet with meager concern for civil rights.)While this case dealt explicitly with the ability of a property owner to shoot on his own land, it is a significant step away from unlimited state power, and back toward a government that is limited by the rule of law and the people.
©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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