A Constitutional Right to Maintain a Private Shooting Range?

  • Date:
  • June 02, 2021

Last week, in Barris v. Stroud Township, a divided intermediate appellate court in Pennsylvania invalidated a local ordinance restricting firearm discharge in the city outside recognized exceptions. That ordinance, citing “the density of the population in the Township of Stroud” found it “necessary that the discharging of firearms be regulated for the protection of the public health and safety and general welfare of the residents, property owners, visitors and others within Stroud Township, and that the unauthorized discharge of firearms be prohibited.” Accordingly, the Township barred firearm discharge except in specified circumstances, including when authorized under state and federal law (which would include self-defense use), when hunting, and—at issue in the case—at an indoor or outdoor shooting range meeting required specifications.

A homeowner living on a nearly 5 acre tract submitted an application to create a private shooting range on his property, but his application was denied because he did not attempt to meet the Township’s firearm discharge or zoning ordinance’s criteria for a shooting range. Most importantly, the zoning ordinance forbids shooting ranges on property (like the homeowner’s) designated as Low Density Residential Zoning, and allows it only on property zoned as Open Space and Preservation Zoning District or Special and Recreational Zoning District. Rather than appeal the denial, the homeowner sued in state court, arguing that the firearms discharge ordinance violated (among other things) the Second Amendment.

The trial court granted the Township summary judgment, but the court of appeals reversed. As to methodology, the court found persuasive the two-part framework adopted in the federal courts of appeals for deciding Second Amendment challenges. As such, it moved to the first question of that framework: does the ordinance burden conduct protected by the Second Amendment? At this first step, without any analysis beyond a citation to the Seventh Circuit’s recognition in Ezell that the right to maintain proficiency with a firearm is a corollary to the right to possess one for self-defense, the court noted that “the Ordinance outright prevents individuals such as Barris from target practicing on their residential property unless they live in two specific zoning districts, regardless of the characteristics of their residential property.” It therefore concluded that the ordinance burdened protected conduct.

At the second step—which asks whether the law passes means-end scrutiny—the court said the ordinance did not burden core protected conduct and so only merited intermediate scrutiny. But the court still faulted the statute under that standard. Rejecting the state and lower court’s discussion of the number of available qualifying lots and the interests in public safety, the court said “[o]ur concern is that, on its face, the Ordinance burdens more conduct than is necessary to meet the important government interests in this case.” It noted that zoning ordinances often designate uses as appropriate for certain districts, but that such rules do not typically bar the same private activity on one's property. The court invoked an analogy: “For instance, simply because a municipality may designate a particular zoning district for commercial car washing activities does not mean that individuals may not engage in the personal activity of washing their own cars in the driveways of their residential properties.” This ordinance was different, however.

The Township, in enacting the Ordinance, opted to prohibit personal target shooting throughout much of the Township by restricting the exercise of the Second Amendment right to maintain firearm proficiency to just two zoning districts—the O-1 and S-1 zoning districts—thereby establishing an outright ban on this conduct in all other zoning districts.

The “ban” formulation was doing a lot of rhetorical work in the opinion, which is a topic Joseph has written about in the context of constitutional doctrine (and particularly guns). The court held that the state had not justified restricting the right to train with firearms to the two identified zoning districts and therefore the ordinance flunked intermediate scrutiny. The dissenting judge thought the Second Amendment did not confer a right to firearm practice at one’s house.

The case is curious to me for a few reasons. One is that the court struck the ordinance down on its face—seemingly as facially overbroad. But overbreadth doctrine is not a typical Second Amendment tool, and several courts have refused to import First Amendment overbreadth doctrine to the Second Amendment context, as I’ve written about in the context of constitutional borrowing. The Barris court did not appear to weigh the number of constitutional applications against unconstitutional ones in making its overbreadth determination. In fact, it’s hard not to see how the discharge ordinance doesn’t have far more constitutional applications. There may be times when it’s unconstitutional—as perhaps was the case when applied to Barris himself—but it’s hard to see why that’s not just an issue for as-applied challenges.

Second, the court disputed that it was “holding that every person needs to have the ability to have a personal shooting range on his property.” But it does seem the court was creating a constitutional right to train with weapons at one’s home. Perhaps, its caveats suggest, permissible regulation could set parameters around home ranges, like lot size requirements, safety inspections, setbacks, and other related features, but those would presumably go to whether the ordinance was sufficiently tailored, not to whether there’s a right at all. In other words, the opinion does seem to create a Second Amendment right to train with weapons at one’s home and the only question is whether a given restriction on that right is justified. That’s a far leap from what Ezell said (the case on which the majority and the homeowner hang the most), and it’s not clear to me it’s consistent with American history, which often had limitations on where firing could take place, especially in urban areas. (Check out the Repository's "Firing Weapons" category for a taste of discharge restrictions throughout the centuries.)

Sarah Swan has argued, both on our blog, and what sounds like it will be a terrific Harvard Law Review article, that city size matters in assessing these constitutional questions, particularly of zoning and exclusion like at issue in Barris. Perhaps the court had in mind the types of property at issue in the case—large tracts of land seemingly set off from the hustle and bustle of city life. Surely a person should be allowed to shoot on his own property there, the thinking might go. If so, there might have been some urban-rural/large city-small township divides playing a role in the decision.