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Pennsylvania Supreme Court Agrees to Hear Home Shooting Range Case
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.
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Another 2ndA case mooting opportunity!
“The lower court had allowed plaintiff’s Second Amendment challenge to go forward”
could be deduced directly from :
“Pennsylvania Supreme Court Agrees to Hear Home Shooting Range Case”
as can the final result.
Every home-shooting range I’ve seen or heard of has been a DIY thing. And I gotta say, it’s not a great thing for DIY quality standards to be applied to.
Maybe this guy is unique, and really didn’t intend to endanger their neighbors. Maybe they’re far enough out that they have no neighbors, and no chance of people on land outside their own to be anywhere down-range. But seeing as he’s on only 4.6 acres, doesn’t sound likely.
All of which is to say… there’s a legal answer, and there’s a “what the duck is wrong with you?” answer. Most backyard shooting ranges, even when legal, fall into the later.
Doesn’t a lot depend on the details? Is it a 4.6 acre square? A quarter mile long narrow rectangle? Is is backstop some bales of hay or a huge pile of sand, or maybe even a snail trap?
Doesn’t a lot depend on the details? Is it a 4.6 acre square? A quarter mile long narrow rectangle?
In this case the shape of the parcel isn’t really relevant, as the potential for a round escaping the property is predominantly dependent on other factors like the construction of the berm (assuming there is one), steps taken to limit ballistic elevation, etc. The exception would be an extraordinarily long and narrowly shaped plot, which would actually make things more hazardous as the margin for error with regard to aim along the horizontal plane is greatly diminished.
Is is backstop some bales of hay or a huge pile of sand, or maybe even a snail trap?
I ask, because my own home back in Michigan, before I had to move in ’08, was on a 16 acre plot that was half a mile long, but only about 160 feet wide at the end where my house was located. And there were no habitations for at least a mile down range, past my rear property line.
So I was fairly close to my neighbors, but could shoot in a specific direction without worry.
The berm, of course, had a shot up “You’re on the backstop for my shooting range!” sign, but that was mostly to scare off people walking in along the river to hunt on my property without permission…
That depends rather a lot on what you’re shooting. If your range is for a 30.06, you’re right, the standards for backstops and other protections need to be quite high. On the other hand, if you just need a backstop for a 22, that’s pretty easy to design. And if you’re setting up a skeet range, that takes practically nothing to make safe except distance. Setting up a safe range on over 4 acres is not especially hard.
This was my thought as well. When I was a kid, I used to mow a five-acre lot as a side job. It wasn’t small (especially not when I had to do much of it by push mower). But it certainly wasn’t big either. Certainly not big enough to hold every errant bullet.
Beyond the risk of bullets, there’s the noise. I can’t believe it would be all that pleasant having someone constantly firing off weapons just a few hundred yards from your home on the adjacent five-acre lot.
Being constantly noisy is surely an issue. We regularly drive by a place a few miles from us where someone with a five acre lot brought in a dozer and built a motocross track. Now, I dunno the neighborhood mood – it could be that the neighbors all go over and ride too and think it’s wonderful, or it could be that they are livid about it.
But the point I think EV makes to ReaderY below is that you stop noise with a noise ordinance, not a no guns ordinance. Someone checking their zero before deer season is a lot less noise than someone mowing all summer, and a BB gun isn’t a noise issue at all.
Safety issues are similar. There are requirements for fences around pools. You may quite reasonably object to a neighbor felling a 100 ft tree that is growing 20 ft from your house[1], but the solution to that isn’t a blanket ban on tree cutting. If reasonable safety requirements mean you can’t shoot on your property, so be it. But that’s not a blanket ban.
[1]I dunno if you can make legal objections beforehand. A neighbor had his garage bisected by his neighbor playing amateur Paul Bunyan. He was pleading with the neighbor to stop cutting – the tree was obviously leaning toward the garage. But AFAIK, the amateur logger wasn’t charged with reckless tree felling within city limits or anything, and the owner of the ex-garage just made an insurance claim (and maybe the ins. company went after the cutter, I dunno).
I can tell you how this case will come out: the justices of the PA Supreme Court are elected, and there is a Democratic majority. They will look for a way to kill this guy’s backyard range.
As to the comment upthread, the quality and safety of any range depends on the terrain, alignment, downrange backstops and side-range berms and whatever’s going on over the property line. I’ve seen good ones and I’ve seen not-so-good ones. But a safe 25 yard (or even 50 yard) range suitable for pistols and smaller rifles can easily be tucked in less than an acre.
Several months ago a video made the rounds showing a shooting range going over a public road. From the thumbnail (didn’t watch it) it looked like there was no way for a bullet to hit a car because there was plenty of dirt in the way.
We have a home shooting range, although on a bit larger amount of land than 4+ acres. It can be done safely if you make sure there is a large bank of dirt behind the targets, and if you are shooting downhill where any “misses” will end up in the ground anyway. AND, you have to know what is further down-range from your target. Is there just timber land down-range, or is there a subdivision? Is there a walking, biking, or riding trail down-range?
If there are neighboring homes, I do not think I would feel safe shooting on that small of an area, unless maybe with just a .22, in a heavily wooded area where any stray shots would more than likely end up in a tree. Even then, I would be wary. I understand the frustration of not being able to target shoot on your own property, but as a gun-owner you have to be aware of what can go wrong, and respectful of your neighbors’ safety concerns.
You may wish to purchase the property next door. Do real estate people have to disclose an outdoor gun range owned by your neighbor?
Can the gun range guy thumb his nose at zoning, and turn the range into a commercial operation?
Make it strictly private, and keep it indoors, below grade, and 4.6 acres works fine. Outdoors? In Idaho, in the 1970s, they would have called that crazy.
The only thing worse than fecklessness with guns, is courts which order it tolerated.
The only thing worse than fecklessness with guns, is…
…the inane bullshit you routinely spew.
I shoot occasionally on my land, and while I don’t have any berms I shoot down a slope with rising ground behind it that is well treed. I’m not claiming it’s ideal but there are no dwellings or roads for several miles in that direction.
Were my county to outlaw the use of my property for shooting I’d just have to walk a hundred yards or so down range and I’d be on National Forest land where it’s perfectly legal to shoot to your hearts content as long as you are more than 150 yards from any road or building.
If it is conceded that there is no right to have a shooting range in a studio apartment, then it seems to have been already conceded that there is no absolute right to have a ahooting range in ones home. After all, the 4th Amendment right to be free from unreasonable searches and seizures doesn’t depend on how large ones home is. Something is either ones home and it applies or it isn’t and it doesn’t.
So if it’s conceded that poor people don’t have a right to have a shooting tange in their studio apartments, how can rich people have a right to one in their large acreages? Constitutional rights don’t normally only apply to people of property or with titles of nobility.
If poor people can constitutionally be required to go somewhere else if they want to do target practice, rich people can too.
ReaderY: I don’t think that’s right. Is there a right to have a 100 people meet to hear speeches (especially with an admission fee) in a small apartment? Probably not, if it’s forbidden a content-neutral fire code imposing occupancy limits. But a law that category bans all 100-person gatherings on all property, including a large space where they can safely meet, would be unconstitutional.
The same argument can be made here. The right to keep and bear arms includes the right to train oneself to shoot accurately. That right can be regulated using time, place, and manner restrictions that are substantially related to an important government interest. Public safety is one such interest. But while a ban on shooting ranges in small apartments would pass this “intermediate scrutiny,” a total ban on all shooting ranges in residential districts (including ones with many-acre lots) wouldn’t pass intermediate scrutiny, because it’s overinclusive, given that ranges can safely operate on large lots.
Now one can argue that the standard should be something less than intermediate scrutiny, or make other arguments as well. But I just think that your claim that “if you have no right to do something in a small apartment, you have no right to do it on large lot” isn’t sound.
A lot of “public safety” complaints are really going to be noise complaints in disguise. Like denying permission to build based on “traffic” or “schools” when the reality is people don’t want new neighbors.
I’m quite sympathetic to the noise issue, whether from shooting, dirt bikes, chainsaws, or music, but I think a ‘content neutral’ noise ordinance would read something like ‘noise exceeding X decibels at the property line shall only occur in daylight hours, and not more than Y hours per month’ or something like that.
So suppressed pellet guns would be fine, suppressed rimfire maybe, but your centerfire training would be subject to the same limits as tuning your unmuffled Harley would be.
We have a couple acres, sitting on a shelf with a 100 ft ridge behind us. I could set up a perfectly safe 50 ft pellet rifle range that the neighbors would never hear – and I’d love to do so – but a local ordinance flatly forbids even BB guns. There isn’t even an exception for shooting a BB gun in your basement.
It is perfectly legal to do archery, though, even on a 1/10 acre lot with no backstop. Because broadheads aren’t as dangerous as BB guns, of course.
I’m sympathetic to the noise complaints, too. Back when I lived in the country, I’d specifically laid out my backyard so that the far side of the pond was 100 yards from my deck railing. (The fact that deer congregated there didn’t enter my mind at all…) But when my neighbors had a baby, I stopped shooting from there for a while, while our lots were both quite large, our homes were close to the common property line, so the acreage didn’t really matter in that regard.
That’s not even close to right. That’s like saying that ‘because you have conceded that there is no right to yell FIRE in a crowded theater (when there is no fire), any and every conceivable speech restriction is allowable.”
That’s just how he rolls, if you hadn’t noticed.
Don’t you claim to be a lawyer, implying that you actually went to law school and passed a Bar exam?
When I was about 12, my father — having seen that I was interested in shooting — set up a shooting range in our suburban house. He bought a bullet trap that would block a .22 (and probably more) and set it up in our attic. He located it in front of the brick chimney just in case a shot missed the bullet trap (never did). Initially, I was only allowed to use a CO2-powered “rifle” on the shooting range. Once I demonstrated that I was both capable and careful, he bought me a .22 rifle, and later a .22 revolver. (I never missed the bullet trap.)
After that, we joined a shooting club. I bought a .45 1911, a SMLE .303, and a couple of other guns, and Dad and I went out to the club to shoot many weekends. The club had trap and skeet facilities, and after trying that with borrowed guns I saved up for a Browning 5.
Years later, when I was in Army Basic Training I was one of the best shots in the Company — maybe even in the battalion. And this was in Texas! The Army might have tapped me for sniper training, but fortunately I was a reservist.
By the way, I don’t know where my father got his knowledge about gun safety. He was born in NYC in 1909 and grew up in what he described as “rural Brooklyn”. He became a doctor and served in the Army Medical Corps during WWII. He told several stories about officers’ reckless and dangerous gun-handling. Years later, a friend of his showed up at a party at our house with a Browning .380 handgun that he’d found somewhere. Dad carefully took the pistol, ejected the magazine, and then ejected the cartridge. The safety wasn’t even on!
I look at this as a zoning issue only (not 2A), and whatever constitutional zoning issues there are should apply.
Suppose instead of a shooting range, the owner wished to (legally) manufacture weapons, or sell weapons, or have a gun show.
These are all legal activities but are somewhat restricted by zoning laws.
I look at this as a zoning issue only (not 2A), and whatever constitutional zoning issues there are should apply.
That’s a nice circular argument.
This depends on specifics that we are not given. (layout of the property, proximity to neighbors, type and size of weapons)
Are there standards for backstops? I don’t know. I’ve never worried about them. I shoot at my Cousin’s farm. Our backstop is a railroad embankment that is about 30 ft. high and will stop small artillery rounds.
I have to wonder if the landowner decided to put in a range, went to see if he needed a permit and some Liberal said “No! Guns are evil!”
Regarding the various degrees of judicial scrutiny that might be applied to court cases, in any court action involving firearms/gun rights, the strictest scrutiny is required. Nothing less that Strict Scrutiny is acceptable, nor should anything less than Strict Scrutiny ever be considered.