Sunday, November 15, 2015

NC: Zoning Decision about Shooting on Property Upholds Basic Philosophy of Law

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
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.
Link to Gun Watch


Anonymous said...

This is exactly the reason why the tenth amendment guarantees that anything not listed in the federal constitution or in the state constitution is left to the people. If it is not expressly written in the constitutions it is permitted and if it is written in the constitution it is not permitted to be changed in any way. the second amendment is in the constitution and shall not infringe is the limitation that forbids states to add to it or take away from it. This covers all words the states may try to add such as concealed carry, trigger lock, gun safe, magazine capacity, or any other words even the federal government may wish to add. This is the very principle reason the tenth amendment exists. No federal LAW AND NO STATE LAW CAN CHANGE SHALL NOT INFRINGE. This is what makes the 1934 NFA, 1968 and 1986 federal gun laws unconstitutional. Laws and acts do not qualify as ratified amendments. SHALL NOT INGRINGE specifically forbids any alteration of the second amendment by the federal government or the state governments. any words not written in the second amendment can not be added by law or act. This is the issue the NRA should be arguing. I have been making this claim for many years now a court has made it for me. the constitution limits the government not the people. The tenth amendment clearly states anything not limited by the constitutions is left to the people. therefore concealed carry, open carry, trigger locks, gun safes and any other words not found in the constitution are not permitted to be used in laws or acts. This is what makes the gay marriage ruling unconstitutional the word marriage is not in the federal constitution. therefore there is no subject matter jurisdiction for the supreme court to hear the case. the ruling is void. all gun laws are void, state or federal. It is time that every one understands the power of the tenth amendment. words can not be added to the constitutions by law or by act. Only amendments can change what is written.

Wireless.Phil said...

I should send this to Cleveland Mayor Frank Jaskson, his new so called gun law is just stupid.

Anonymous said...

Feel free to do so

Anonymous said...

Can you tell me when the mayor of a city gained the authority to make law? especially law that conflicts with federal guaranteed rights?