The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's Third Circuit decision in Drummond v. Robinson Township, written by Judge Cheryl Krause and joined by Judges Kent Jordan & Felipe Restrepo, dealt with two zoning restrictions on "Sportsman's Clubs" (basically a sort of shooting range that was permitted on particular kinds of land in the Township, labeled IBDs, meaning Interchange Business Districts):
- The Rim-Fire Rifle Rule: Whereas the old version of the ordinance allowed Sportsman's Clubs to organize center-fire rifle practice (as did Drummond's lease), the new version limits Clubs to "pistol range, skeet shoot, trap and skeet, and rim-fire rifle" practice.
- The Non-Profit Ownership Rule: In contrast to prior rules, which did not distinguish between for- profit and non-profit entities, the ordinance now defines a "Sportsman's Club" as a "nonprofit entity formed for conservation of wildlife or game, and to provide members with opportunities for hunting, fishing or shooting."
The court concluded that the restrictions were subject to "intermediate scrutiny"; they weren't close enough to any historically accepted sorts of restrictions (which would make them valid), but they also didn't substantially burden the core of the right to bear arms (which would subject them to strict scrutiny):
In contrast to Chicago's "total ban" [on shooting ranges, which was struck down in an earlier Seventh Circuit case,] the Township's ordinance preserves avenues for citizens to acquire weapons and maintain proficiency in their use. It prohibits commercially-operated Sportsman's Clubs, but permits their non-profit counterparts. It forbids center-fire cartridges, but frees citizens to train with other forms of ammunition. And it regulates IBD districts, but opens two other districts to commercial ranges and center-fire rifle training. Because the ordinance stops short of a ban on firearms purchase and practice in the Township, the core right to self-defense emerges intact.
And the court remanded to the trial court for more fact-finding on whether the restrictions could be justified under intermediate scrutiny:
To survive intermediate scrutiny, a law must clear two hurdles. First, it must serve a "significant, substantial, or important" government interest. Second, "the fit between the asserted interest and the challenged law" must be "reasonable" and "may not burden more conduct than is reasonably necessary." Though we owe "substantial deference" to local zoning decisions, restrictions on conduct within the scope of the Second Amendment must still satisfy these requirements….
[T]he government, not the plaintiff, must prove that a challenged law satisfies intermediate scrutiny…. When a rule places only a de minimis burden on the right to bear arms, it may be clear—even "before any evidence is produced"—that the rule "is reasonably narrowly tailored." But when a rule imposes a "significant" burden and takes an "exceptional" form, as is true of the challenged rules here, "the government must demonstrate that alternative measures that burden substantially less [protected activity] would fail to achieve [its] interests." …
That the Township's "asserted interests are important in the abstract does not mean, however, that the [challenged zoning] rules will in fact advance those interests." The Township "must do more than simply 'posit the existence of the disease sought to be cured.'" Instead, it must persuade us that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." That leaves us to focus on the fit between the Township's ends and the means it uses to achieve them.
And therein lies the problem. The first and most important sign that something is amiss comes from the ordinance's outlier status. When a challenged law has few analogues, it raises concern "that the [government] has too readily forgone options that could serve its interests just as well, without substantially burdening" protected conduct. This is such a case. Neither the Township nor its Amici put forward any parallels for the challenged rules, whether in history or in contemporary practice. The ordinance's outlier status cannot be decisive, of course, but it does trigger an especially exacting means-ends analysis.
A closer look at the challenged rules reveals serious questions about fit. First consider the rim-fire rifle rule. On the Township's account, this rule prevents the use of powerful ammunition, reducing noise and increasing safety. But as the Township admitted at oral argument, this theory is just that: A theory, unsupported by evidence. And even if it were otherwise, the Township would still need to show it "seriously considered" more targeted tools for achieving its ends.
To take two obvious examples, the Township already instructs Sportsman's Clubs to implement noise-reduction techniques and range-safety best practices. It is true that the Township need not "demonstrate it has tried or considered every less burdensome alternative," but it cannot forego an entire "range of alternatives" without developing "a meaningful record … that those options would fail to alleviate the problems meant to be addressed." If considered judgment or experience has exposed less-burdensome alternatives as unreasonable, that is for the Township to show after discovery.
Now turn to the non-profit ownership rule. On appeal, the Township justifies this rule on the ground that it moderates the intensity of use at Sportsman's Clubs. But even if evidence corroborated this point—and at this early stage, none does—it would hardly establish sufficient tailoring. Here again, "less intrusive tools" for relieving commercial intensity would appear to be "readily available." It is not apparent, for instance, why the Township could not achieve its goals by implementing occupancy limits or hours-of-operation restrictions, for nowhere has it demonstrated—at least not yet—that it "reasonably rejected" common regulatory tools in favor of the unusual prohibition on for-profit firing ranges.
So far, we have identified two reasons why the ordinance plausibly fails intermediate scrutiny: No evidence ties the challenged rules to the asserted interest, and the Township neglects to explain why it eschewed more targeted alternatives. But the Township also encounters a third problem. When it implemented the non-profit ownership and rim-fire rifle rules for Sportsman's Clubs, the Township left the permissive rules regulating Shooting Ranges intact [though such Ranges are apparently not allowed in IBDs -EV]. It also continued to allow individuals to practice with center-fire rifles everywhere in IBD districts aside from Sportsman's Clubs. These glaring instances of under-inclusion exacerbate our already significant concerns about fit.
If non-profit status moderates commercial intensity, as the Township insists, why permit for-profit Shooting Ranges? And if center-fire rifles amplify noise and safety concerns, why allow them at Shooting Ranges—indeed, everywhere other than Sportsman's Clubs? To the extent the Township posits that adjacent uses or other circumstances explain its "truly exceptional" decision to single out Sportsman's Clubs, it must support that position not with "lawyers' talk," but with actual "evidence." And at the pleading stage, of course, the Township has none….
As the Township argues and as we accept above, the challenged rules stop short of an absolute ban on firearms purchase and practice. It does not follow, though, that the burden they produce is not significant. The non-profit ownership rule, in particular, has already forced the Greater Pittsburgh Gun Club out of business, and may have the same effect on other Sportsman's Clubs. It is plausible that those closures impair residents' access to the weapons and skills commonly used to lawfully defend their homes. Thus, whether the challenged rules impose a slight burden or a substantial one is not a question we can decide at the pleading stage.
Our Second Amendment inquiry ends where it began. Heller rejects rational-basis review and instead requires a rigorous analysis of rules that interfere with the right to bear arms. Here, for example, the Township must marshal evidence to explain why, for Sportsman's Clubs in IBD districts, it embraced the unusual rim-fire rifle and non-profit ownership rules over more common, less burdensome alternatives. The question is not whether the Township used "the least restrictive or least intrusive means of serving its interests," but whether it "seriously considered substantially less restrictive alternatives." As is unsurprising at the pleading stage, the Township has failed to "establish a close fit between the challenged zoning regulations and the actual public benefits they serve—and to do so with actual evidence, not just assertions." We leave it to the District Court to analyze whatever evidence the Township presents in light of these governing principles.
Congratulations to Alan Gura, who represented the plaintiff, and who got the plaintiff a good deal more than many might have expected.