Posted by: Patricia Salkin | August 12, 2022

Sixth Circuit Vacates and Remands Shooting Range Zoning Case

This post was authored by Amy Lavine, Esq.

The litigation at issue was commenced in 2018 by Oakland Tactical, which wanted to operate an outdoor shooting range on its property in Howell Township, Michigan, which was zoned Agricultural-Residential. Although “rifle ranges” were not specifically addressed in the zoning ordinance, other than being defined as an “[o]pen air business use,” the township had taken the position that they were allowed in some districts, but not in the Agricultural-Residential District. The district court granted the township’s motion for judgment on the pleadings in September 2020, finding that Oakland Tactical failed to plausibly plead that the Second Amendment required the township to permit shooting ranges in the Agricultural-Residential District, and that it had also failed to establish that the ordinance effectively banned all shooting ranges, since it “appear[ed] on its face to allow shooting ranges in [other] districts” and Oakland Tactical had not applied for rezoning or for a special-use permit to allow a shooting range on its property. Oakland Tactical then moved for reconsideration, and while its motion for reconsideration was still pending, the township adopted zoning amendments that deleted the reference to “rifle ranges” and added a new provision for “sport shooting ranges” that permitted shooting ranges in several districts but not in the Agricultural-Residential District. The district court subsequently denied Oakland Tactical’s motion for reconsideration, and this appeal followed.

The Sixth Circuit explained that it previously followed a two-step test to address challenges under the Second Amendment:

At step one, we required the government to put forward historical evidence to establish that the challenged law regulated activity outside the scope of the Second Amendment. If the historical evidence was inconclusive or suggested that the regulated activity was not categorically unprotected, we moved to step two, where we ascertained the appropriate level of scrutiny and then examined the government’s justification for restricting or regulating the exercise of the activity.

However, this test was inconsistent with the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). As the court observed, under Bruen the correct test to resolve Second Amendment challenges is as follows:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The court found that it was unable to apply this standard based on the record, and therefore it vacated the district court’s grant of judgment on the pleadings and remanded the case for further proceedings. On remand, the court instructed that the district court “should decide, in the first instance, whether Oakland Tactical’s proposed course of conduct is covered by the plain text of the Second Amendment.” If the district court answers this question in the affirmative, then “it should then determine whether historical evidence—to be produced by the Township in the first instance—demonstrates that the Ordinance’s shooting-range regulations are consistent with the nation’s historical tradition of firearm regulation.” The court did not address the zoning ordinance amendments, as the parties neglected to address what effect they might have on the litigation.

Oakland Tactical Supply, LLC v. Howell Township, 2022 WL 3137711 (6th Cir 8/5/22)


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