Third Circuit Delivers Win For Second Amendment In Gun Range Case

AP Photo/Wilson Ring

A Pennsylvania town’s restrictive rules for gun ranges can face a Second Amendment challenge, thanks to a unanimous decision by the Third Circuit Court of Appeals handed down on Tuesday. The case, known as Drummond v. Robinson Township, revolves around zoning requirements and restrictions put in place by the township several years ago, after the Greater Pittsburgh Gun Club was purchased by William Drummond.

Those new rules included two specific restrictions; one on the type of activity allowed on the 265 acres owned by the club, and the other focusing on the for-profit status of the club.

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 rimfire 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.”

Drummond sued over the new zoning restrictions back in 2018, but a U.S. District Court judge dismissed the case soon afterwards, ruling that the township’s zoning laws didn’t violate Drummond’s Second Amendment rights. When Drummond appealed to the Third Circuit, however, the appellate court reversed the district judge’s decision and instructed the judge to take a second look, and this time to engage in a “textual and historical” inquiry of the issues at hand.

The judge did so, and found that, yes, Drummond’s Second Amendment rights were in fact implicated by the township’s zoning restrictions. However, the judge also decided that “the fit between the [challenged] regulations and the Township’s objective is reasonable,” and threw out Drummond’s challenge.

Drummond appealed once again to the Third Circuit, and on Tuesday the three judge panel decided that the judge has continued to err in his judgement.

At the outset, there is no doubt that the ordinance promotes a substantial government interest. It aims to advance “public health, safety and welfare,” and Drummond does not dispute this point. 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.

The Third Circuit panel found that not only did the township offer no evidence that its zoning rules are targeted to achieve a public safety benefit without imposing undue restrictions on the right to keep and bear arms, but that it neglected to explain why it chose to implement these specific restrictions, and why they did so only in the part of the township that was zoned for “sportsmen’s clubs.” Two other areas of town where “shooting ranges” are allowed to operate don’t have these same types of restrictions in place, but the township can’t explain why center-fire rifle firing should be banned at a sportsmen’s club and not at a shooting range.

Now the case goes back down to the district court for a third time, and hopefully this time around the judge makes the correct decision and finds that the township violated the rights of the gun range owner by arbitrarily imposing these zoning restrictions without being able to offer up any substantive reason for doing so.

This case could ultimately have national implications, because as the Second Amendment Foundation’s Alan Gottlieb points out, “by the time our victory in this case is finalized it will add Second Amendment protection to gun clubs, gun stores and gun ranges because it provides for heightened levels of scrutiny for cases involving gun ranges.”

“Anti-gunners have tried to push restrictive zoning on gun clubs, ranges and gun stores in an effort to use zoning laws to make sure gun ranges and stores cannot operate,” Gottlieb said in a news release. “It amounts to Second Amendment violations and business discrimination under color of law. That cannot be allowed.”

Amen to that. Kudos to attorney Alan Gura for the appellate court victory, as well as to the Second Amendment Foundation for backing Drummond’s challenge. The Firearms Policy Coalition also provided an amicus brief in support of Drummond, while the “gun safety” group Giffords weighed in on the side of Robinson Township in its defense of its efforts to impose gun control via zoning regulations.

Yes, that’s right. A group that’s supposedly all in favor of firearms education and training was actually arguing to make it harder for people to train with the guns they own, which doesn’t sound like a pro-gun safety position at all if you ask me.