The Volokh Conspiracy
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From today's order granting review in Barris v. Stroud Township:
The issue, as rephrased, is:
Whether an ordinance that limits target shooting to two non-residential zoning districts, and thus does not provide for shooting ranges at all private residences, is facially unconstitutional under the Second Amendment to the United States Constitution?
In addressing this issue, the parties are directed to discuss in their briefs the following subsidiary matters: (1) whether this Court should adopt the two-step framework for addressing Second Amendment challenges utilized by the lower court; (2) whether the core Second Amendment right to possess firearms for self-defense recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), also implies a corresponding right to acquire and maintain proficiency in their use; (3) whether such a corresponding right, if it exists, must extend to one's own home; and (4) the level of scrutiny courts should apply when reviewing enactments that burden individuals' ability to maintain firearms proficiency.
The lower court had allowed plaintiff's Second Amendment challenge to go forward; note that plaintiff wants to set up a range on his "4.66-acre tract of land," not (say) in a studio apartment:
The Ordinance imposes a burden on the Second Amendment right to maintain proficiency in firearm use by essentially imposing an outright ban on target shooting everywhere in the Township except two specific zoning districts. The Township did not meet its burden under the intermediate scrutiny standard to justify such an outright ban on personal shooting ranges at one's residence, because it did not establish that the Ordinance "does not burden more conduct than is reasonably necessary."
In reaching our conclusion, we do not discount the importance of regulating target shooting in a residential environment and the important policy reasons for the Ordinance, nor are we holding that every person needs to have the ability to have a personal shooting range on his property. To the contrary, a municipality clearly may regulate such activity. This Court has recognized that Second Amendment rights are "not unlimited" and "may be restricted in the exercise of police power for the good order of society and [the] protection of citizens." Yet, as we have previously held:
It must be remembered … that the police power delegated by the state is not infinite and unlimited. The action taken thereunder must be reasonable, it must relate to the object it purports to carry out, and it must not invade the fundamental liberties of the citizens. It must also be remembered that even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when goals can be otherwise more easily achieved.
Thus, our decision does not in any way prohibit the Township from enacting an ordinance targeted to protecting the public, provided that it satisfies the intermediate scrutiny test as described above. As we have repeatedly stated throughout this opinion, there must "be a reasonable fit between [the] asserted interest and the challenged [ordinance], such that the [ordinance] does not burden more conduct than is reasonably necessary."
For instance, the Township may determine that the goal of protecting the public could be met by imposing requirements on personal shooting ranges, such as a minimum lot size, setback requirements, safety requirements (e.g., targets and backstops be built and used according to certain standards), and requirements on the configuration or positioning of a shooting range on the property to account for distances between buildings or other obstacles beyond the target. The ordinance could require that the Township or law enforcement inspect the personal shooting range and approve it annually to ensure that the safety requirements are being met.
If the Township chooses to enact a new ordinance that imposes reasonable limitations in the forms described above, it is entirely possible that the ordinance could pass the intermediate scrutiny test. In order to do so, however, the Township must balance the constitutional rights of individuals to maintain proficiency in firearm use through firearm-related activity on their properties with the Township's important goals of keeping the general public safe.
The opinion below was written by then-Judge Kevin Brobson, joined by Judge Mary Hannah Leavitt, with a dissent by Judge Bonnie Brigance Leadbetter. Judge Brobson has since been elevated to the Pennsylvania Supreme Court, but the order granting review states that now-Justice Brobson "did not participate in the consideration or decision of this matter," so presumably he won't participate in the hearing on the merits.