Litigation Highlight: Sixth Circuit Hears Oral Argument in Shooting Range Zoning Challenge

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

In the past year, federal district courts across America have seen Bruen-fueled challenges to all manner of gun regulation. Whether the topic is a firearm insurance mandate, an administrative rule reclassifying certain pistols as rifles, or restrictions on carrying guns in “sensitive places,” the challengers’ strategy is usually the same: argue that the regulated activity falls within the plain text of the Second Amendment, then make the government prove that the regulation fits within a historical tradition of similar laws. Much ado has been made about the difficulties and complications of Bruen’s second step—the “historical tradition” inquiry—but a case under review in the Sixth Circuit demonstrates how Bruen’s first step can be just as contentious.

On Thursday, November 9, a three-judge panel of the Sixth Circuit Court of Appeals heard oral arguments in Oakland Tactical Supply, LLC v. Howell Township, MI. The case arose from a zoning dispute in Howell Township, Michigan, where plaintiffs Oakland Tactical sought to build an outdoor, open-air shooting range complex in a former rock quarry. Oakland Tactical planned to offer a variety of shooting stations, including short-range handgun, shotgun, and rifle ranges for public use and a long-distance, 1,000-yard rifle range for use by “qualified shooters.”

In 2020, after the township’s zoning board denied Oakland Tactical the permits necessary to begin construction, the range brought suit against the township in the Eastern District of Michigan. Their complaint alleged that the township violated the Second Amendment by failing to amend its zoning rules or otherwise allow Oakland Tactical to build the proposed shooting range on its property. The complaint was soon dismissed, but in August of 2022 the Sixth Circuit vacated the dismissal and ordered that the District Court revisit the case in light of Bruen. In February of 2023, the district court again dismissed the Complaint, finding that the Second Amendment offered plaintiffs no protection because their proposed course of conduct—building a 1,000-yard outdoor commercial rifle range—did not fall within the Amendment’s plain text. Oakland Tactical appealed the dismissal, and oral arguments were scheduled for November 2023.

After beginning by tying up some loose ends regarding justiciability and procedure, the panel directed the majority of its substantive questions toward Bruen’s first step, the “plain text” inquiry. Bruen established that a litigant’s “proposed course of conduct” must fall within the coverage of the Second Amendment’s plain text in order for the Amendment to offer the litigant any protection. This analysis typically requires the aggrieved party to demonstrate that they are a member of “the People”; that the weapon in question counts as an “Arm,” prototypically a firearm; and that the conduct under regulation falls within the meaning of “keep and bear Arms,” defined in Heller as “to possess and carry weapons in case of confrontation.”

At oral argument, Appellant Oakland Tactical reprised its argument below that its proposed course of conduct—operating a 1,000-yard outdoor commercial rifle range for training purposes—is covered under the plain text of the Second Amendment, albeit in an indirect manner. The argument is a bit baroque; so, for the sake of precision, here’s a rough step-by-step guide:

1. The Second Amendment’s plain text protects the right to “bear Arms” for lawful purposes, including but not limited to defensive use, hunting, and marksmanship competitions.
2. Training with firearms is a necessary concomitant to bearing firearms.
3. Activities that are necessary concomitants of the exercise of a right are textually implicated even if they are not explicitly mentioned in the text that establishes or preserves the right.
4. It follows from 1, 2, and 3 that the right to train with firearms is covered by the plain text of the Second Amendment.
5. The plain text of the Second Amendment specifies that the right it identifies “shall not be infringed.” At the time of the Founding, “to infringe” a right was understood to mean something like “to impede or hinder the exercise” of that right.
6. The zoning regulation hinders Oakland Tactical’s ability to provide a site for long-distance rifle training to marksmen with no other place to train.
7. It follows from 5 and 6 that the zoning regulation, by prohibiting the construction of the range, infringes upon the textually protected right to train.

∴ In conclusion, it follows from 4 and 7 that the proposed course of conduct—operating a 1,000-yard outdoor commercial rifle range for training purposes—is covered by the plain text of the Second Amendment.

Once this argument was on the table, the panel turned to Respondent Howell Township, which argued that building a 1,000-yard outdoor commercial range is not covered by the plain text of the Second Amendment (as the court below held). Interestingly, the township did not dedicate any portion of its argument to expressly rebutting premise 4—that the right to train is covered by the plain text of the Second Amendment—as a matter of either history or precedent caselaw. Instead, the township seemed to make two distinct arguments.

First, it argued that if such a derivative right to train exists and is covered by the plain text, it must be understood as an individual right akin to the right of gun ownership itself. And since the zoning regulation at issue does not limit an individual’s ability to keep, bear, or even discharge a firearm in connection with lawful marksmanship training, it cannot be maintained as a matter of law that the zoning regulation infringes upon the right to train. (Oakland Tactical was joined by individual plaintiffs seeking a place to train in long-distance shooting in Howell Township, so this argument seems squarely designed to defeat those individual plaintiffs’ claims.)

The township appeared to offer another argument as well. Assuming the Court decides the right to train is the type of right that can legitimately be asserted by Oakland Tactical in its capacity as the would-be proprietor of a proposed business, the township argued that, because other zoning districts in the township allow for commercial shooting ranges, Oakland Tactical cannot assert as a matter of law that the zoning laws facially infringe upon its right to build a training facility in the township. In other words, insofar as the zoning laws prevent Oakland Tactical from building the proposed range on the piece of land it currently owns, the infringement is essentially de minimis, more of an inconvenience than an actual rights-violation.

Overall, the panel seemed sympathetic to the townships’ central assertion—that the construction of a 1,000-yard commercial range is not covered by the plain text of the Second Amendment—but did not seem eager to adopt the township’s arguments outright. For example, while the panel seemed to agree that the right to train is best understood as held by individuals, their questions expressed doubt about whether a town could use zoning laws to totally exclude all commercial firearms training sites—a conclusion that the township, when asked, appeared to adopt.

Ultimately, the panel seemed most inclined to conclude that, insofar as the concomitant right to train is covered under the plain text of the Second Amendment, a 1,000-yard shooting range is simply too far from the Second Amendment’s self-defense heartland to warrant granting Oakland Tactical the relief it seeks (namely, a reversal with instructions to declare judgment in favor of the plaintiffs). It remains to be seen whether that inclination results in an affirmance of the dismissal below or a reversal and remand. And though we have seen other appellate judges speculate about a case’s Second Amendment implications beyond what is strictly necessary to decide the question on appeal, this panel showed little interest in doing anything of the sort here.

Whether the Second Amendment protects a derivative right to train with firearms—and how that derivative right might cash out within the Bruen framework—are extremely interesting and impactful questions. So is the question of how, if at all, the Second Amendment might constrain everyday zoning decisions. But unfortunately, readers looking to the forthcoming Oakland Tactical opinion for answers to those questions will almost surely be disappointed, since the panel seemed reluctant to wade any further into Bruen’s waters than it absolutely must to decide the case at hand. But for those actively involved in litigating Second Amendment matters, Oakland Tactical is worth keeping an eye on for its potential to shed light on the understated complexities of Bruen’s “plain text” inquiry.