Posted by: Patricia Salkin | August 17, 2021

Third Circuit Court of Appeals Concluded Ordinance Limiting Use by Gun Club Interfered with the Second Amendment and Did Not Pass Intermediate Scrutiny

This post was authored by Olena Botstheyn, Esq.

In 2017, William Drummond, appellant in this case, leased a 265-acre property in Robinson Township with the purpose of operating a shooting range and engaging in the retail sale of guns. The property had a history of being used as a gun club before 2007, which Drummond planned to reopen. At the time, the gun ranges were permitted in three types of districts: Industrial and Special Conservation districts could host “Shooting Ranges,” and Interchange Business Districts (IBD), where the proposed range was located could host “Sportsman’s Clubs.” The same safety standards and rules applied to both categories of ranges. However, when the town residents learned about Drummond’s plans, to avoid possible nuisance they requested for re-zoning “to limit activities at the property.” The Board then imposed new rules, which limited Clubs to “pistol range, skeet shoot, trap and skeet, and rim-fire rifle” practice and provided a new definition of a “Sportsman’s Club” as a nonprofit entity aimed at wildlife conservation. In 2018, Drummond commenced this lawsuit, claiming that the ordinance is facially unconstitutional and that “the rules restrict his customers’ efforts to acquire firearms and maintain proficiency in their use.” The district court dismissed the complaint, and Drummond appealed.

On appeal, the court first referred to the Heller case as a guide for Second Amendment jurisprudence, and determined that similarly to the First Amendment cases, court must make a historic inquiry to determine whether a law interferes with the Second Amendment and then conclude that the law would survive “some form of heightened scrutiny.” Therefore, the court had to question whether regulations proposed by the town constituted an exception to the right to bear arms that dated back in history. Since the court found that historically training with common weapons was never barred in areas where firearms practice was otherwise permitted and nor did it find historical evidence of prohibitions on the commercial operation of gun ranges, it concluded that the rules attract intermediate scrutiny. To pass intermediate scrutiny, a rule must serve a “significant, substantial, or important” government interest, and it may not burden more conduct than is reasonably necessary. The court agreed that the government has an important interest of advancing public health, safety and welfare here, however, it determined that the Town failed to show that the challenged zoning laws will necessarily advance this interest. In court’s opinion, the Town could achieve its goals by implementing occupancy limits or hours-of-operation restrictions, but instead it introduced the and rim-fire rifle and non-profit rules, which are not linked to the asserted interest. Accordingly, the court vacated the district court’s order and remanded for further proceedings.

Drummond v Robinson Township, 2021 WL 3627106 (3rd Cir CA 8/17/2021)

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