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Volokh Conspiracy

May Arkansas shooting range exclude Muslims?


The question is in the news, see this Fox News story (Adam Shaw):

In the five months since Jan Morgan banned Muslims from her gun range in Hot Springs, Ark., business has boomed and predictions of a lawsuit brought by federal civil rights enforcers have so far proved inaccurate.

Morgan, who claims keeping Muslims out of her Gun Cave Indoor Firing Range is a matter of public safety and not a constitutional issue, says she made the decision in September after two customers she deemed suspicious visited. She said their furtive behavior and cellphone ringtones of "Allahu Akhbar" prompted her to revise her range's policies.

"We are dealing in lethal firearms," Morgan told "I'm not going to let a Nazi shoot in here, or a Ku Klux Klan member in here, either."

[The Washington Post also wrote about the case earlier this month.]

1. The range is probably indeed violating the public accommodations provision of the federal Civil Rights Act of 1964, though that's not completely clear. The Act applies to only particular classes of businesses:

Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

The category under which gun ranges might be covered is "place[s] of exhibition or entertainment." Daniel v. Paul (1969) held that this term includes "recreational areas" and not just places for spectators to watch events (as in the theaters, concert halls, and stadiums that are listed in the same subsection); United States v. DeRosier (5th Cir. 1971) likewise held that a bar qualified because of the presence of a "juke box, shuffle board and pool table for the use and enjoyment of the bar's patrons." Query whether a shooting range would be viewed as different because it's partly (largely? principally?) focused on practical training and not on "entertainment" as such.

2. But, in any event, Arkansas antidiscrimination law is broader, and does cover shooting ranges that are generally open to the public:

"Place of public resort, accommodation, assemblage, or amusement" means any place, store, or other establishment, either licensed or unlicensed, that supplies accommodations, goods, or services to the general public, or that solicits or accepts the patronage or trade of the general public, or that is supported directly or indirectly by government funds, but "place of public resort, accommodation, assemblage, or amusement" does not include … [a]ny private club or other establishment not in fact open to the public ….

So if this is a range that most members of the public can just go into and use (unless they look too Muslim to the owner), then the owner is legally barred from discriminating among patrons based on religion (or various other attributes).

I leave to others an analysis of the moral rights and wrongs of the matter; what I have to offer is the legal analysis, and here it is.