Zoning, Outliers, and the Second Amendment

  • Date:
  • August 20, 2021

Earlier this week, in Drummond v. Robinson Township, the Third Circuit concluded that a Pennsylvania township’s zoning changes plausibly violated the Second Amendment. At issue in the case were two changes that Robinson Township made to the rules governing property on which a shooting range had previously existed and on which a new owner wanted to resurrect one: (1) barring the use of center-fire rifle practice on that particular type of property, and (2) requiring gun ranges on that type of property to have non-profit ownership. The court remarked that its task in the case was “to apply Heller’s familiar approach in an unfamiliar setting” as “[u]ntil now, neither the Supreme Court nor our Court has confronted a Second Amendment claim challenging a restriction on firearms purchase or practice.”

The district court had dismissed the case on the pleadings without taking any evidence. In reviewing the decision, the court of appeals applied the customary two-part framework. At step one, which asks whether the challenged regulation burdens conducted protected by the Second Amendment, the court described Heller as guiding the search in a parallel manner to free speech doctrine.

In First Amendment cases, the Supreme Court defines categorical exceptions—for “obscenity,” “defamation,” and “fraud,” for example—by looking to “historical evidence” and “long-settled tradition[s].” United States v. Stevens, 559 U.S. 460, 468–69 (2010). In Second Amendment cases, likewise, we trace the right’s reach by studying the historical record.

Even though the Township took no position on step one, the court decided to make the historical inquiry necessary to understanding the scope of the right. In doing so the court noted that it should not look for historical analogues at too narrow a level, and so deprive officials of the ability to regulate in new settings, but also not look at too general a level and so under-protect the right. “Instead, each challenged rule triggers an inquiry into a distinct type of regulation.” Looking to history, the court could find no analogue to a bar on training with common weapons or to categorically restricting commercial gun sales or training opportunities.

Then, as the court described the transition to step two, “[i]f this historical inquiry reveals that a law interferes with the Second Amendment, it must satisfy the same type of searching tests we use to safeguard First Amendment freedoms.” Having found that history did not exclude the zoning rules from Second Amendment scrutiny, the court applied heightened review. In particular, it chose intermediate scrutiny because the zoning rules did not “disable defense at home” by banning popular weapons. Yet the court refused to rule that all such regulations would always merit intermediate scrutiny: “If a zoning ordinance has the effect of depriving would-be gun owners of the guns and skills commonly used for lawful purposes like self-defense in their homes, strict scrutiny may be warranted.” (The court rejected Drummond’s argument that it should treat the regulation as the equivalent of regulation of a bookstore under the First Amendment because gun stores have no Second Amendment right to sell guns or range time.[1])

The court concluded that the Township had not met its burden to show that the rules were a reasonable fit with its asserted interests in public health, safety, and welfare. “The first and most important sign that something is amiss comes from the ordinance’s outlier status.” That outlier status, stated the court, “trigger[s] an especially exacting means-ends analysis.” The court was suspicious that the Township could produce sufficient evidence to justify the center-fire rule or the nonprofit rule, but ultimately it concluded that that issue was for discovery and could not be determined at the pleading stage. It reversed the district court’s grant of the Township’s motion to dismiss and remanded for further proceedings.

Two facets about the case are interesting from my perspective, especially because of some research I’ve been working on: (1) the role of outlier status, and (2) the just-below-the-surface suggestions of an improper government motive.

First, as I argue in my forthcoming article Securing Gun Rights By Statute: The Right to Keep and Bear Arms Outside the Constitution, a wide-ranging set of statutory expansions for gun rights has the potential to influence Second Amendment doctrine in precisely the way it did in Drummond. Preemption laws that cut off local authority and laws that expressly limit authority over zoning regulations concerning gun ranges skew the policy framework and limit what types of laws local governments can enact. In that way, these non-constitutional expansions can create outlier laws like the Township’s. Consider North Carolina’s Sport Shooting Range Protection Act of 1997, which provides (among other things) that “a sport shooting range that is operated and is not in violation of existing law at the time of the enactment of an ordinance and was in existence at least three years prior to the effective date of this Article, shall be permitted to continue in operation even if the operation of the sport shooting range at a later date does not conform to the new ordinance or an amendment to an existing ordinance, provided there has been no substantial change in use.” Dramatic changes in a community or region of the sort that might prompt new zoning rules cannot, under this rule, apply to existing ranges. Even if one thinks that’s a good and necessary protection for existing investments, it still illustrates how a host of state protections for gun-related activity are responsible for creating outliers.  

Second, one undercurrent of the Drummond opinion is that the Township may have been acting out of a dislike for guns (or on the basis of community members’ dislike of guns) and not to further its purported public safety interests. The court notes this argument but sidelines it: “Drummond asserts that a ‘vendetta’ motivated the Township to implement stricter zoning rules. But as Drummond’s counsel acknowledged at oral argument, the Township’s intent plays no part in our analysis of his facial Second Amendment claims.”

In another forthcoming article, Second Amendment Animus, I argue that Second Amendment adjudication should not incorporate a motive or intent test that would look to whether government officials are acting out of hostility or animus toward gun rights or gun owners. In the course of doing so, I argue that the two-part framework the courts of appeals have adopted works well enough to strike down impermissible laws and is even sufficient to condemn laws that could be construed as improperly motivated. One context I highlight in which concerns about hostility might be amplified is in the zoning context, where public safety concerns may be diminished and one might fear local officials catering more to community animus (indeed, one of the primary cases in the animus canon – City of Cleburne, Texas v. Cleburne Living Centerconcerned the denial of a special use permit for a home for persons with intellectual disabilities). I examine Second Amendment zoning cases – Ezell I and II, and Teixiera, as examples of how these challenges to zoning type rules can handle implicit claims of hostility simply by deploying the two-part framework with no formal role for intent. In other words, Drummond is a perfect example of what I aim to show: that government intent should no play no role in Second Amendment cases and that doing so does not lower protection for Second Amendment rights (indeed, Ezell, the initial Teixeira panel, and Drummond all vindicate Second Amendment challenges with motive-blind means-end scrutiny).

[1] The court added that it “knew of no court, modern or otherwise, to hold that the Second Amendment secures a standalone right to sell guns or range time.” But the Ninth Circuit’s original panel opinion in Teixeira v. County of Alameda (later vacated by the en banc court) did in fact conclude that “the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.” And Teixeria quoted several other district court rulings making similar statements.