Jonathan Barris, Appellant v. Stroud Township
No. 671 C.D. 2020
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
May 28, 2021
HONORABLE P. KEVIN BROBSON, Prеsident Judge; HONORABLE MARY HANNAH LEAVITT, Judge (P.); HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
Submitted: February 8, 2021
OPINION BY PRESIDENT JUDGE BROBSON
FILED: May 28,
Jonathan Barris (Barris) appeals from an order of the Court of Common Pleas of Monroe County (trial court), dated May 26, 2020, which granted summary judgment in favor of Stroud Township (Township) and against Barris. In this action, Barris challenges the constitutionality of the Township’s Ordinance No. 9-2011 (Ordinance), regulating the discharge of firearms within the Township. For the reasons set forth below, we now reverse the trial court’s grant of summary judgment.
I. BACKGROUND
Barris is the owner of a 4.66-acre tract of land in the Township, located at 7335 Pioneer Lane in Stroudsburg, Monroe County, Pennsylvania. In 2011, the Township enacted the Ordinance, which provides, in pertinent part, as follows:
Section 1: Intent and Purpose.
Due to the density of the population in the Township of Stroud, it is necessary that the discharging of firearms be regulated for the protection of the public health and safety and general welfare of the residents, property owners, visitors and others within Stroud Township, and that the unauthorized discharge of firearms be prohibited.1
. . . . Section 3: Firing or discharge restricted.
It shall be unlawful to fire or discharge any firearm within the Tоwnship . . . except as provided in Section 4 Exceptions below.
Section 4: Exceptions.
Exceptions to this Ordinance are as follows, however, in no case shall a firearm be discharged before dawn or after dusk and/or within 150 yards of an adjacent occupied structure, camp or farm, except as provided under paragraphs A., B., indoor facilities under D., and E. below:
- The use of firearms is permitted when employed by any duly appointed law enforcement officer in the course of his or her official duty.
- The use of firearms is permitted when necessary as authorized under state and/or federal laws.
- The use of firearms is permitted when hunting . . . .
- The discharging of firearms shall be allowed on indoor or outdoor shooting ranges pursuant to applicable provisions of the Stroud Township Zoning Ordinance, as may be amended, under the supervision of the owner or occupant of that property or his or her duly appointed representative, provided that:
- All shooting ranges shall be constructed and operated in a safe and prudent manner. If standards, regulations and/or recommended procedures for operation are established or promulgated by any recognized body, such as the National Rifle Association or the American Trap Shooting Association, then such standards, regulations and/or procedures shall be adhered to.
- Such range is issued zoning and occupancy permits by the township zoning officer, which permits shall specify the area or areas designated for shooting range purposes.
- Farmers engaged in “normal agricultural operation” protecting their “agricultural commodity” from animal predators . . . .
- Members of any organization incorporated under laws of this Commonwealth engaged in target shooting upon the grounds or property belonging to or under the control of such organization or affiliated club, such as the Pennsylvania Federation of Sportsmen’s Clubs, Inc.
Section 5: Improper use prohibited.
The careless, reckless or improper use of any firearm tending to imperil or cause danger or harm to personаl security or to endanger the property of any person within the Township . . . is prohibited.
. . . .
Section 7: Violations and penalties.
Any person or persons discharging a firearm in violation of any of the provisions of this ordinance shall be subject to a fine of not more than six hundred dollars ($600.) plus court costs, including reasonable attorney fees. If the defendant neither pays nor timely appeals the judgment, the [T]ownship may enforce the judgment pursuant to the applicable rules of civil procedure. Each day’s continued violation shall constitute a separate offense. In default in the payment of any fine imposed hereunder, the defendant shall be sentenced to undergo
imprisonment for a period not exceeding thirty (30) days. . . .
(Reproduced Record (R.R.) at 12-14 (footnote added) (emphasis added).)
Barris submitted a zoning permit application for a proposed shooting range on his property on December 27, 2012. (R.R. at 47-54.) Relying on the Ordinance and provisions of the Township’s Zoning Ordinance (Zoning Ordinance), a Township zoning officer denied the application on January 23, 2013, for the following reasons:
Section 4.200 [of the Zoning Ordinance]—Types of Uses & Schedule I—Regulations Governing the Use of Land provides that “shooting range (indoor, outdoor) (7997)” is allowable only as O-1 Open Space and Preservation Zoning District, and S-1 Special and Recreational Zoning District. The above[-]referenced property, which is located in an R-1 Low Density Residential Zoning District, is not located in [an] O-1 or an S-1 Zoning District. The proposed use, therefore, is not permitted.
Also Zoning Ordinance Section 5.386 contains specific standards for “shooting ranges,” which includes a minimum parcel size of five (5) acres for a shooting range use. The above[-]referenced property does not qualify additionally for that reason.
Ordinance 9-2011—Regulation for Discharging Firearms—Section 4 regulates the discharging of firearms within the Township. Section 4 of this Ordinance is entitled “exceptions, . . .” [and] it . . . provide[s] that “in no case shall a firearm be discharged . . . within 150 yards of an adjacent occupied structure. . . .”
The proрosed shooting range does not meet the setback requirement from the occupied dwelling structure on the above referenced property.
Ordinance 9-2011—Regulation for Discharging Firearms—Section 4(D)(1) provides that all shooting ranges must comply with the standards and regulations promulgated by either the National Rifle Association or the American Trap Shooting Association.
The Zoning Application submission did not include standards and regulations specific to the firearms to be discharged.
(Original Record (O.R.), Item No. 70 at 3, Trial Ct. Op. 5/26/20 at 3 (citing Zoning Officer Denial Letter, dated January 23, 2013)). Barris did not appeal the denial to the Township’s Zoning Hearing Board to review the determination of the Hearing Officer. (Id.)
Instead, Barris filed a complaint (Complaint) in the trial court in September 2015, seeking declaratory and injunctive relief against the Township and claiming that the Ordinance effectively prohibited him from using a portion of his property within the Township as a private shooting range. (O.R., Item No. 4, Complaint ¶¶ 34-61.) The Complaint claimed that the Ordinance: (1) violates the Second Amendment to the United States Constitution;2 (2) violates Article I, Section 21 of the Pennsylvania Constitution;3 (3) is preempted by Section 6120 of the Pennsylvania Uniform Firearms Act of 1995 (Firearms Act),
The trial court sustained the Township’s preliminary objections and dismissed Barris’s Complaint in its entirety. The trial court concluded that the Ordinance was not preempted by the Firearms Act, because the Ordinance regulates only the “discharge” of firearms within the Township, which the trial court concluded was a subject omitted from the scope of the Firearms Act. The trial court also concluded that the Ordinance was not preempted under Pennsylvania’s range protection statutes because those statutes only protect owners of ranges from civil aсtions or criminal prosecutions relating to noise, noise pollution, and nuisance. Given that the Ordinance does not purport to regulate noise, noise pollution, or nuisance, the trial court concluded that it was not in conflict with the range protection statutes and dismissed the claims.
The trial court, in dismissing Barris’s state and federal constitutional claims, opined that neither the Second Amendment nor the Pennsylvania Constitution have been construed “to grant an individual the right to discharge a firearm whenever he or she pleases.” (O.R., Item No. 16 at 20.) Similarly, the trial court opined that because the Ordinance regulates the discharge of firearms for the safety of individuals within the Township and Barris’s “firearms are not being taken away from him,” the Ordinance passes muster under District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), wherein the United States Supreme Court held that a handgun ban violated the rights conferred by the Second Amendment. To the extent Barris contends that the Ordinance restricts his ability to defend himself in his home, the trial court dismissed the claim and noted that the Ordinancе expressly allows discharge of firearms for self-defense as authorized under Pennsylvania law.
Barris appealed the decision to this Court, arguing, in part, that the trial court should have afforded him the opportunity to amend his Complaint, rather than dismiss it with prejudice. In Jonathan Barris v. Stroud Township (Pa. Cmwlth., No. 218 C.D. 2016, filed November 17, 2017) (en banc) (Barris I), we affirmed the trial court’s dismissal of Barris’s claims alleging violations of the Firearms Act and the Pennsylvania range protection statutes. We vacated the trial court’s order as it related to Barris’s constitutional challenge to the Ordinance and remanded the matter. We wrote that the trial court
failed to conduct any constitutional analysis of the gist of Barris’s claim—i.e., that the Ordinance, which restricts his ability to practice firing his firearms on his property (an activity that he lawfully engaged in prior to the passage of the
ordinance at issue), unconstitutionally infringes on his rights under both the Second Amendment [of the United States Constitution] and Article I, Section 21 of the Constitution of Pennsylvania either facially or as applied. Because the trial court’s opinion in support of its dismissal . . . of the [C]omplaint lacked the necessary constitutional analysis, we must vacate the portion of the trial court’s order . . . and remand to the trial court to further consider Barris’s constitutional challenges. As we are remanding the matter, we also direct the trial court on remand to afford Barris a reasonable period within which to file an amended complaint . . . .
Barris I, slip op. at 8, 9. We remanded the case to the trial court for additional proceedings.
On remand, Barris then filed an amended complaint (Amended Complaint) in January 2018, again seeking declaratory and injunctive relief against the Township and claiming that the Ordinance violates his rights under: (1) the Second Amendment to the United States Constitution, (2) the Fourteenth Amendment to the United States Constitution,6 (3) Article I, Section 21 of the Pennsylvania Constitution, and (4) Article I, Section 26 of the Pennsylvania Constitution.7 (R.R. at 28-34.) In the Amended Complaint, Barris averred, in part, that since 2010, he has constructed, maintained, and used a home shooting range on his 4.66-acre property, zoned R-1, i.e., low-density residential. (Id. at 29.) He also averred that, until enactment of the Ordinance on December 6, 2011, his “firearm discharge on said range was deemed lawful and safe by the Township’s police and otherwise not in violation of any section of the laws of Pennsylvania or other federal or state governmental codes or regulations.” (Id. ¶ 9.) He characterized the Ordinance as “outlaw[ing] firearm practice and safe shooting ranges on residential property and limit[ing] firearm discharge to large-scale commercial and/or private enterprises or to affluent persons or entities,” presumably due to the fact that it limits shooting ranges to properties consisting of at least five acres and located in the Open Space and Preservation Zoning District, O-1, and Special and Recreational Zoning District, S-1.8 (Id. at 30 ¶11.)
Following the close of the pleadings, the parties filed cross-motions for summary judgment, which the trial court denied because there remained a genuine issue оf material fact that affected the appropriate standard of review. Thereafter, the Township filed a second motion for summary judgment, which the trial court granted. The trial court entered judgment in favor of the Township and against Barris by
II. ISSUES
On appeal,9 Barris argues that the trial court erred when it granted the Township’s second motion for summary judgment and denied his motion for summary judgment. First, Barris argues that the trial court erred when it determined that the Township’s Ordinance did not violate his Second Amendment right to conduct target practice on his residential property. Second, Barris argues that the trial court erred when it determined that the Township’s Ordinance did not violate his Fourteenth Amendment substantive due process rights to use his residential property for target practice. Third, Barris submits that the trial court erred when it determined that the Township did not violate his Fourteenth Amendment procedural due process rights when it passed the Ordinance. Finally, Barris argues that the trial court erred in concluding that he failed to exhaust his administrative remedies in challenging the constitutionality of the Ordinance.10
III. DISCUSSION
“The Second Amendment provides: ‘A well[]regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’” United States v. Marzzarella, 614 F.3d 85, 88 (3d Cir. 2010) (quoting
There is a strong presumption in the law that all legislative enactments are constitutional. Caba v. Weaknecht, 64 A.3d 39, 49 (Pa. Cmwlth.), appeal denied, 77 A.3d 1261 (Pa. 2013). To prevail in this case, Barris must show that the legislative enactment “clearly, palpably, and plainly” violates the United States Constitution. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Cmwlth., 877 A.2d 383, 393 (Pa. 2005) (emphasis omitted). “All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster.” Caba, 64 A.3d at 49. There are two ways to challenge the constitutionality of a legislative enactment: eithеr the enactment
A facial attack tests a law’s constitutionality based on its text alone and does not consider the facts and circumstances of a particular case. Peake v. Cmwlth., 132 A.3d 506, 517 (Pa. Cmwlth. 2015) (en banc) (adopting “plainly legitimate sweep” standard for evaluating facial constitutional challenges). To prevail, the challenger must show that “its constitutional deficiency is so evident that proof of actual unconstitutional applications is unnecessary.” Id.
As set forth above, Section 3 of the Township’s Ordinance provides: “It shall be unlawful to fire or discharge any firearm within the [Township] except as provided in [Section 4] Exceptions below.” (R.R. at 12.) Section 4 of the Ordinance sets forth exceptions (A) through (F) to the prohibition on the discharge of a firearm, as follows: (A) law enforcement activities; (B) situations when necessary under state or federal laws; (C) hunting; (D) indoor and outdoor shooting ranges permitted under thе Zoning Ordinance; (E) farmers; and (F) sportsmen’s clubs. (R.R. at 13.) Section 4 of the Ordinance also places time and proximity limitations on certain of the exceptions. Specifically, it limits the use of a firearm in connection with the exceptions for hunting, outdoor shooting ranges, and sportsmen’s clubs by prohibiting the discharge of a firearm: (1) before dawn or after dusk; and (2) within 150 yards of an adjacent occupied structure, camp, or farm. (Id.) The dusk-to-dawn and 150-yard limitations do not apply to any of the other exceptions, those being law enforcement activities, when necessary under the law, indoor shooting ranges permitted under the Zoning Ordinance, and farmers. Furthermore, given that the time and proximity limitations are set forth as part of the exceptions and not in the general prohibition in Section 3 of the Ordinance on the discharge of a firearm within the Township, they do not apply as general limitations on the discharge of a firearm in the Township.11 Thus, they apply only to hunting, outdoor shooting ranges permitted under the Zoning Ordinance (i.e., those ranges located in the O-1 or S-1 zoning districts pursuant to the Zoning Ordinance), and sportsmen’s clubs—not to Barris’s property located outside the O-1 and S-1 zoning districts. Additionally, we note that not only does the Ordinance’s reference to the Zoning Ordinance have the effect of restricting shooting ranges to parcels in the O-1 or S-1 zoning districts only, but it also further limits the parcels within those districts that may be used as a shooting range by requiring that the parcel consist of at least five acres.
Thus, if an individual wants to establish an indoor or outdoor shooting range on his property, he may do so in two zoning districts—O-1 and S-1—provided that the minimum parcel size requirement of at least five acres is met.12 (R.R. at 18.) Simply
In determining the merits of a Second Amendment challenge, numerous circuit courts of appeals have used a two-step framework. See Ezell v. City of Chicago, 651 F.3d 684, 702-704 (7th Cir. 2011) (Ezell I); Marzzarella, 614 F.3d at 89; United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010).13 First, a court must “ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Ezell I, 651 F.3d at 703; Marzzarella, 614 F.3d at 89. The United States Court of Appeals for the Seventh Circuit, using the United States Supreme Court’s First Amendment free-speech jurisprudence as an example for this kind of threshold “scope” inquiry, reasoned:
The [Supreme] Court has long recognized that certain “well-defined and narrowly limited classes of speech”—e.g., obscenity, defamation, fraud, incitement—are categorically “outside the reach” of the First Amendment. When the [Supreme] Court has “identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis.” Instead, some categories of speech are unprotected as a matter of history and lеgal tradition. So too with the Second Amendment. Heller suggests that some federal gun laws survive Second Amendment challenge because they regulate activity falling outside the terms of the right as publicly understood when the Bill of Rights was ratified. . . . Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment—1791 or 1868—then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.
Ezell I, 651 F.3d at 702-03 (citations omitted). If the challenged law does not impose a burden within the scope of the Second Amendment’s guarantee, then the inquiry is complete. Id. at 704.
Conversely, if there is a burden on the Second Amendment, then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights under some form of “means-end” scrutiny. Ezell I, 651 F.3d at 703. The United States Supreme Court made “it clear thаt the deferential rational-basis standard is out, and with it the presumption of constitutionality.” Id. at 706 (citing Heller, 554 U.S. at 628 n.27). The Seventh Circuit, again using the United States Supreme Court’s
In free-speech cases, the applicable standard of judicial review depends on the nature and degree of the governmental burden on the First Amendment right and sometimes also on the specific iteration of the right. For example, “[c]ontent-based regulations are presumptively invalid,” and thus get strict scrutiny, which means that the law must be narrowly tailored to serve a compelling government interest[.] Likewise, “[l]aws that burden political speech are subject to strict scrutiny.” On the other hand, “time, place, and manner” regulations on speech need only be “reasonable” and “justified without reference to the context of the regulated speech.”. . .
. . . .
. . . . [R]estrictions imposed on adult bookstores are reviewed under an intermediate standard of scrutiny that requires thе municipality to present “evidence that the restrictions actually have public benefits great enough to justify any curtailment of speech. . . .”
Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximately to the core of the right.
In Ezell I, the Seventh Circuit found that the City of Chicago’s firing range ban that prohibited “‘law[-]abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range . . . [was] a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.” Id. at 708-09. The circuit court determined that the “City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual second amendment rights.” Id. at 709. The circuit court held that the core individual right of armed defense includes a corresponding right to acquire and maintain proficiency in firearm use through target practice at a range, and the right to possess firearms for protection would not mean much without the training and practice that make it effective. Id. at 704. The circuit court reversed the district court’s order and remanded the case with instructions to enter a preliminary injunction for the plaintiffs. Id. at 711.
Six years later, in Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017) (Ezell III), the Seventh Circuit reviewed three residents’ challenges to the City of Chicago’s modifications of its gun range ban that “established a permit regime for lawful gun possession and required one hour of range training as a prerequisite to a permit, but prohibited firing ranges everywhere in the city.”14 Ezell III, 846 F.3d at 890. At issue in that case was the constitutionality of zoning restrictions: (1) allowing gun ranges only as special uses in manufacturing districts; and (2) prohibiting gun ranges within 150 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses. Id. The district court had held that the zoning restrictions severely limited where shooting ranges could be located and required the City to establish a close fit between the restriction and the public interests they serve. Id. at 891. The district court, without addressing the 100-foot distancing restriction, had upheld the 500-foot distancing restrictions because it was “significantly less burdensome” when considered standing alone, and reasoned that it was similar to a “law forbidding the carrying of firearms in sensitive places such as school and government buildings.” Id. Both sides appealed the decision. Id.
The Seventh Circuit, prior to addressing the parties’ claims, noted “for good measure that most other circuits have adоpted the framework articulated in Ezell I and require some form of heightened scrutiny when evaluating the government’s justification for a law challenged on Second Amendment grounds.” Id. at 893. The circuit court then dismissed the district court’s “sensitive places” approach when it upheld the 500-foot restriction, reasoning that the two zoning restrictions at issue are a “single regulatory package for purposes of Second Amendment scrutiny.” Id. at 894.
The Seventh Circuit next reviewed the sufficiency of the City’s proffered justification for regulating firearms ranges using a heightened scrutiny standard—i.e., that firing ranges: (1) attract gun thieves; (2) cause airborne lead contamination; and (3) carry a risk of fire. Id. The circuit court noted, however, the “City continues to assume, as it did in Ezell I, that it can invoke these interests as a general matter and call it a day.” Id. The circuit court then reviewed the evidence the City offered to support its justifications and opined:
We explained in Ezell I that the City cannot defend its regulatory scheme “with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.” To borrow from the free-speech context “there must be evidence” to support the City’s rationale for the challenged regulation; “lawyers talk is insufficient.” Here, as in Ezell I, the City’s defense of the challenged zoning rules rests on sheer “speculation about accidents and theft.”. . . That’s not nearly enough to satisfy its burden. The manufacturing and distancing restrictions are unconstitutional.
Id. at 896 (emphasis in original) (citations omitted). The circuit court concluded that the City has room to regulate the construction and operation of firing ranges to address genuine risks to public and health safety, but the City must justify its regulation and did not do so in its case under an intermediate level of scrutiny. Id. at 898.
While Barris strongly relies on Ezell I and Ezell III to support his arguments, the Township directs our attention to a recent decision of the United States Court of Appeals for the Third Circuit. The Third Circuit, in Association of New Jersey Rifle and Pistol Clubs Incorporated v. New Jersey, 910 F.3d 106 (3d Cir. 2018) (New Jersey Rifle), comprehensively addressed the legal status of the Second Amеndment in this circuit. In June 2018, New Jersey
Following a three-day evidentiary hearing on the plaintiffs’ preliminary injunction request, a federal district court first determined that the ban of magazines holding more than ten rounds implicated Second Amendment protections. Id. at 111, 113. The district court then determined that, because the statute places a minimal burden on lawful gun owners, it should be examined using intermediate scrutiny. Id. at 114. The district court reviewed evidence that the smaller number of rounds in the magazine led to a delay in reloading the firearm, which provided an opportunity for potential victims to escape or a bystander to intercede in the event. Id.. The district court concluded that the magazine limitation was reasonably tailored to achieve New Jersey’s goal of reducing the number of casualties and fatalities in a mass shooting. Id.. Consequently, New Jersey met its burden under the intermediate scrutiny standard, and the district court denied the motion for a preliminary injunction. Id..
On appeal, the Third Circuit applied the two-step framework it established in Marzzarella (i.e., the same test utilized in the Ezell I and Ezell III cases). The circuit court agreed with the district court that the regulation of magazines imposed a burden on conduct falling within the scope of the Second Amendment’s guarantee. Id. at 116. The circuit court, in reaching this conclusion, considered whether the type of firearm at issue is commonly owned and is typically possessed by law-abiding citizens for lawful purposes. Id. at 116.
The Third Circuit then determined the appropriate level of scrutiny that must be applied, noting the applicable level of scrutiny is dictated by whether the challenged regulation burdens the core Second Amendment right. Id. at 117. If the core Second Amendment right is burdened, then strict scrutiny applies; otherwise, intermediate scrutiny applies. Id. The circuit court reasoned that the New Jersey statute did not severely burden the plaintiffs’ core Second Amendment right to self-defense in the home for five reasons: (1) the restriction did not categorically ban a class of firearms, only the number of rounds the magazines could hold; (2) the magazines did not relate to handguns, which was the “quintessential self-defense weapon” in home self-defense; (3) the prohibition did not take firearms out of the hands of law-abiding citizens and had no impact on the many other firearm options that individuals could use to defend themselves in their homes; (4) the statute did not render the firearm at issue incapable as operating as intended; and (5) the possession of a firearm in the home for self-defense is not a protected form of possession under all circumstances, otherwise, any type of firearm possessed in a home would be protected merely because it could be used for self-defense. Id. at 118. Accordingly, the circuit court applied an intermediate level of scrutiny. Id.
The Third Circuit then explained that “‘under intermediate scrutiny[,] the government must assert a significant, substantial, or important interest; there must be a
Generally, we are persuaded by the Third Circuit’s and Seventh Circuit’s interpretation of Second Amendment jurisprudence and adopt the two-step framework in determining whether a constitutional violation occurred in this case. Our first step in reviewing the constitutionality of the Ordinance is to determine whether the Ordinance imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. If there is a burden, we must then determine the appropriate level of scrutiny to apply and weigh the strength of the government’s justification for restricting or regulating the exercise of an individual’s Second Amendment rights. Ezell I, 651 F.3d at 703.
As to the first step of the analysis—whether a Second Amendment right is burdened—the Seventh Circuit, in Ezell I, determined that “the right to maintain proficiency in firearm use[ is] an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.” Ezell I, 651 F.3d at 708-09. Here, the Ordinance outright prevents individuals such as Barris from target practicing on their residential property unless they live in two specific zoning districts, regardless of the characteristics of their residential property. The scope of the Ordinance, therefore, imposes a burden on the right to maintain proficiency in firearm use, which triggers Second Amendment scrutiny.
As to the second step of the analysis—the level of scrutiny to be applied and the strength of the government’s justification—the burden on Barris concerns his ancillary right under the Second Amendment to maintain proficiency in his firearm use. Notably, the Ordinance does not concern a core individual right under the Second Amendment to keep and bear arms and allow law-abiding citizens to use arms in defense of hearth and home. Rather, the Ordinance burdens his ability to target practice on his property to maintain that proficiency. Thus, we will apply an intermediate scrutiny standard requiring the Township to assert a significant, substantial, or important interest for the Ordinance, and 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.” See New Jersey Rifle, 910 F.3d at 119 (quoting Drake, 724 F.3d at 439).
The Township argues that there are four reasons that the Ordinance is constitutional using an intermediate scrutiny standard. (Township’s Brief at 11-13.) First, the challenged Ordinance allows firearm ranges in both the O-1 and S-1 zoning districts, where, according to the Township, “[p]otentially, 82% of the area
The trial court, when it granted the Township’s second motion for summary judgment, concluded that public safety is a significant, substantial, and important interest, and correctly focused on whether the “challenged [O]rdinance is a reasonable fit such that the law does not burden more conduct than necessary.” (O.R., Item No. 70 at 11.) The trial court found that the lots in zoning districts O-1 and S-1 provided 8,671.55 acres of area for a shooting range. (Id.) The trial court found that “all the lots in excess of six acres would meet the 150-yard separation requirement for a gun range, and many of the five[-]acre lots would.” (Id.) The trial court found that the Ordinance’s restriction on target practicing related to the “important government interest of protecting [T]ownship residents from being injured by irresponsible use of firearms” and concluded that the Ordinance is not facially unconstitutional for violating the Second Amendment. (Id. at 12.) While we do not disagree that the reasons provided are important considerations, we disagree with the trial court’s conclusion that the Ordinance is facially constitutional. Our concern is that, on its face, the Ordinance burdens more conduct than is necessary to meet the important government interests in this case.
We note that municipalities, through their comprehensive plans and zoning ordinances, routinely prescribe the manner in which property may be used by designating the zoning districts in which certain broad categories of uses may occur. For instance, zoning ordinances generаlly allow for a variety of residential, commercial, industrial, and agricultural uses, and they specify the zoning districts in which each use may occur. Within these broad zoning categories, municipalities will often develop more specific subcategories of zoning districts that more narrowly limit the type of uses that are allowable therein. Simply because a municipality designates that property in a certain zoning district may be used for a particular use does not mean that individuals cannot engage in an activity encompassed by a use category on a personal level elsewhere in the municipality. For instance, simply because a municipality may designate a particular zoning district for commercial car washing activities does not mean that individuals may not engage in the personal activity of washing their own cars in the driveways of their residential properties.
Here, the Township, in its zoning plan, has specified that shooting ranges may be located in the O-1 and S-1 zoning districts. Thus, if a рerson or an entity seeks to operate a shooting range in the Township—whether
The Township, in enacting the Ordinance, opted to prohibit personal target shooting throughout much of the Township by restricting the exercise of the Second Amendment right to maintain firearm proficiency to just two zoning districts—the O-1 and S-1 zoning districts—thereby establishing an outright ban on this conduct in all other zoning districts. The Township has not justified why an outright ban was necessary for the remainder of the Township in order to protect the public. Instead, the Township appears to defend its decision to outright ban target shooting of any kind in any district other than the two identified above by noting that those districts consist of 8,671.55 acres. The ability under the Township’s Zoning Ordinance to develop properties in those districts as shooting ranges does not somehow allow the Township to overcome the deficiencies in the Ordinance. We do not believe that an individual’s right under the Second Amendment to maintain proficiency in firearm use via a personal shooting range on one’s property should be contingent on owning property or residing in zoning districts O-1 and S-1.
In summary, the conduct Ordinance here fails to pass constitutional muster. 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 рersonal shooting ranges at one’s residence, because it did not establish that the Ordinance “does not burden more conduct than is reasonably necessary.” See New Jersey Rifle, 910 F.3d at 119 (quoting Drake, 724 F.3d at 439).
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.” Perry v. State Civ. Serv. Comm’n, 38 A.3d 942, 955 (Pa. Cmwlth. 2011). 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 сitizens. 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.
Commonwealth v. Sterlace, 354 A.2d 27, 29 (Pa. Cmwlth. 1976) (holding ordinance purporting to restrict door-to-door distribution of all advertising, both commercial and noncommercial, was unconstitutional as being unduly burdensome restriction
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.” Sеe New Jersey Rifle, 910 F.3d at 119 (quoting Drake, 724 F.3d at 439). 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.16 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.17 In order to do so, however, the Township must balance the constitutional rights of individuals to maintain proficiency in fireаrm use through firearm-related activity on their properties with the Township’s important goals of keeping the general public safe.18
IV. CONCLUSION
For the reasons discussed above, we conclude that the trial court erred as a
P. KEVIN BROBSON, President Judge
ORDER
AND NOW, this 28th day of May, 2021, the order of the Court of Common Pleas of Monroe County, dated May 26, 2020, is REVERSED.
P. KEVIN BROBSON, President Judge
Jonathan Barris, Appellant v. Stroud Township
No. 671 C.D. 2020
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
May 28, 2021
HONORABLE P. KEVIN BROBSON, President Judge; HONORABLE MARY HANNAH LEAVITT, Judge (P); HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
SUBMITTED: February 8, 2021
DISSENTING OPINION BY SENIOR JUDGE LEADBETTER
FILED: May 28, 2021
I respectfully dissent. I do not believe that the Second Amendment gives one the right to have a shooting range in his backyard regardless of where he lives or the surroundings of his property. Even if the right to bear arms carries with it the right to become proficient in the use of firearms, all that should require is that some practice facilities be allowed within a reasonable distance of the gun owner, not that they be permitted in every zoning district in the community, particularly residential districts. In that respect, I disagrеe with the Majority that maintaining a personal shooting range is analogous to washing a car in the driveway. Furthermore, even if Appellant’s property were situated in a district that allowed shooting ranges, it would not meet the 5-acre lot size or 150-yard setback requirement for shooting ranges,1 both of which I find reasonable safety restrictions on the discharge of firearms. Accordingly, I believe that Ordinance No. 9-2011 survives the intermediate scrutiny appropriate here, and that it does not violate Appellant’s Second Amendment rights. I would affirm the trial court.
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
Notes
Giffin v. Chronister, 616 A.2d 1070, 1073 (Pa. Cmwlth. 1992). Accordingly, because we concluded that the Ordinance is facially unconstitutional and in violation of Barris’s Second Amendment rights, he did not need to exhaust his administrative remedies with the Township prior to appealing the zoning permit denial to the trial court and this Court.[T]he exhaustion of administrative remedies is not required where a statutory scheme’s constitutionality or validity is being challenged. [Nat’l] Solid Waste [Mgmt. Ass’n] v. Casey, . . . 580 A.2d 893[, 897] ([Pa. Cmwlth.] 1990). In order to qualify under the exception “the attack must be made to the constitutionality of the statute or regulation as a whole and not merely to how the statute or regulation has been applied in a particular сase.” Barr v. State Real [Est. Comm’n], . . . 532 A.2d 1236[, 1238] ([Pa. Cmwlth.] 1987), [(citing St. Clair v. [Pa. Bd. of Prob. &] Parole, . . . 493 A.2d 146, 153 ([Pa. Cmwlth.] 1985)))].