The owners of a gun range in the Pittsburgh suburbs are breathing a sigh of relief today after a federal judge granted a preliminary injunction against the township where the range is located, preventing local officials from enforcing a zoning law designed to put the range out of business.
William Drummond, the owner of the range, filed suit against Robinson Township back in 2018 with the help of the Second Amendment Foundation, alleging that the township had changed its zoning laws after he’d applied for a permit to open a “sportsman’s club”. At the time Drummond submitted his paperwork, the township didn’t define what a sportsman’s club was, but after they took a look at Drummond’s plans, the members of the Zoning Board came up with a definition; one that required sportsman’s clubs to be non-profits as well as barring the use of centerfire rifles at any range.
Drummond’s application was then denied by the Zoning Board, leading to the lawsuit
The case has bounced back and forth between U.S. District Court and the Third Circuit Court of Appeals over the past three years, but on Thursday U.S. District Judge Marilyn J. Horan ruled that even under intermediate scrutiny the township’s anti-range zoning laws aren’t likely to withstand the legal challenge. From the court order:
Although the courts owe “substantial deference” to local zoning decisions, restrictions on rights guaranteed by the Second Amendment rights must still satisfy intermediate scrutiny.
It is the government’s burden to prove that the challenged regulation satisfies intermediate scrutiny.
Although Sections 311(D), 601, and 208, Table 208A do not burden the core Second Amendment conduct of the right to bear arms in the home, they still infringe upon the GPGC’s customers’ ancillary Second Amendment rights to acquire firearms and maintain proficiency in their use, such regulations trigger 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.'”
Although the health, safety, and welfare are substantial government interests, the Township must provide some evidence of how the amendments to the Zoning Ordinance serve those substantial government interests. The government 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.’
According to Horan, at this point the township has failed to demonstrate any actual harm in allowing Drummond to operate the gun range, so for the time being the township is not allowed to enforce the zoning laws it put in place in order to block the range from opening.
The Second Amendment Foundation’s Alan Gottlieb praised the judge’s order, saying that he hopes it puts an end to Drummond’s struggle to open his business.
“Government simply cannot use zoning restrictions to put a business they don’t like out of business.
… “Gun ranges are a necessary component in the exercise of Second Amendment rights,” Gottlieb observed. “Even Judge Horan recognized this in her ruling, where she quoted the Supreme Court’s decision in Heller that ‘The right to bear arms ‘implies something more than mere keeping; it implies the learning to handle and use them; . . . it implies the right to meet for voluntary discipline in arms.’ In essence, the township was trying to zone out the Second Amendment.
Gottlieb adds that the case is an important one because it demonstrates that your Second Amendment rights don’t stop at your front door, which is a very good point. Judge Horan, who was first nominated to the federal bench by Barack Obama and was re-nominated and confirmed under Donald Trump, was correct in noting that the right to keep and bear arms comes with ancillary rights like the right to acquire a firearm and the right to train with it, and while I think that strict scrutiny, not intermediate scrutiny, would have been the proper standard of review, the fact that the zoning laws have been blocked from being enforced under the lower standard of review demonstrates how egregiously awful they are.