PA Appeals Court Holds Township Zoning Subject to Second Amendment

Why I Am Suing The Governor of Virginia, iStock-1055138108
PA Appeals Court Holds Township Zoning Subject to Second Amendment iStock-1055138108

U.S.A.-(AmmoLand.com)- On 28 May, 2021, the Commonwealth Court of Pennsylvania reversed a decision that held that Stroud Township had the power, through zoning ordinances, to prevent people from discharging firearms on their own property.

The Court reversed a summary judgment by the Court of Common Pleas of Monroe County dated 26 May 2020. The plaintiff, Jonathan Barris, appealed the decision on the grounds that Township Ordinance No. 9-2011 was unconstitutional under the Second Amendment.

Barris had first asked for a zoning permit on 27 December 2012.

The Ordinance has been enacted on 6 December 2011. Barris had operated a private range on his property prior to that date.

Pennsylvania law has a strong preemption statute that prevents laws, codes or regulations pertaining to firearms by local government units. The preemption law does not protect the discharge of firearms.

The trial court held the Pennsylvania range protection statute did not apply because it only protected owners of ranges from civil action or criminal prosecution related to noise or noise pollution:

All owners of rifle, pistol, silhouette, skeet, trap, blackpowder or other ranges in this Commonwealth shall be exempt and immune from any civil action or criminal prosecution in any matter relating to noise or noise pollution resulting from the normal and accepted shooting activity on ranges, provided that the owners of the ranges are in compliance with any applicable noise control laws or ordinances extant at the time construction of the range was initiated. If there were no noise control laws or ordinances extant at the time construction of the range was initiated, then the immunity granted by this act shall apply to said ranges.

Thus, while a reasonable person might believe private ranges and the private use of guns were well protected, the trial court found an exception for zoning ordinances.

Barris’ case made it all the way to the appeals court in 2018. The appeals court then sent the case back to the trial court to consider the constitutional analysis.

The trial court issued a second summary judgment against Barris, leading to the current appeal.

In the decision, the appeals court cited Ezell v. City of Chicago (Ezell III) in the Federal Seventh Circuit.  The Ezell cases held the ability to train with weapons was an important corollary to the core right of self-defense. From pacourts.us:

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.

The appeals court found there could be some regulation of the right to have a range on your own property, but such regulation had to be a “good fit” for the purposes declared in the regulation.

Simply banning all ranges was not a good fit. The case was a split decision, two to one.

The dissenting judge was Bonnie Brigance Ledbetter. She believed allowing a shooting range within a “reasonable distance” would satisfy Second Amendment requirements.

Consider what happened here. A property owner constructed his range on his own property. He was within the law. He believed he was protected by Pennsylvania statutes. Then the township changed the law, forbidding him to use his own range.

This seems an injustice on its face unless the township would reimburse him for the lost value. Zoning ordinances ordinarily “grandfather in” existing uses.

Meanwhile, Barris has had to fund a lawsuit and two appeals processes and still is not able to use his range, over a period of ten years.

Some good is likely to come of this case. It seems unlikely Jonathan Barris will be made whole.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Tionico
Tionico
3 months ago

Summry Judgement was NOT an appropriate remedy for the trial court. That outcome can ONLY be employed when there are “no material facts in disagreement”. There obviously WERE “material facts” in dispute. FUrther any summery judgement MUST allow the presentation and interpretaion of “material facts”(any fact that affects the outcome of a case) in a manner most favourable to the non-moving party (the one who did not move for summery judgement, in this case our backyard shooter) and to provide the non-moving party any benefit of doubt or question. The trial court that renderes sumery judgement should pay all his… Read more »

Russn8r
Russn8r
3 months ago
Reply to  Tionico

Should be true, except judges can do, and do, pretty much anything they want, for any bullshit reason, with no accountability whatsoever. e.g., claiming Texas had no standing to dispute The Big Steal.

swmft
swmft
3 months ago

there is a federal law preventing ex post facto (after the fact)laws which would seen to prevent a zoning law that attack previous use ,there HAS to be a grandfather clause , someone moves into your neighborhood and does not like your airport files a noise complaint gets a no privet airplanes rule passed in township too bad no new ones can be built you already have to comply with faa 500 foot altitude rule so k m a had same problem but with big toys court costs went to neighbor after everything they moved you would think the plane… Read more »

Last edited 3 months ago by swmft
toddpipkin
toddpipkin
3 months ago
Reply to  swmft

You may have a good point somewhere in that hot mess of a post, but, without proper punctuation, it is almost impossible to read. My time is too valuable to waste try to decipher something like that.

loveaduck
loveaduck
3 months ago
Reply to  toddpipkin

Agreed. I stopped reading quickly.

Russn8r
Russn8r
3 months ago
Reply to  swmft

Good point, seen it often here in Calizuela. Scumbag developers and cities put houses along the extended runway. Probably hoping to sue and hamstring the airport out of business and steal it for condos.

But it’s not a federal law. It’s the Constitution of the USA.

JimmyS
JimmyS
3 months ago
Reply to  Russn8r

The Constitution IS the federal law, you dolt.

Russn8r
Russn8r
3 months ago
Reply to  JimmyS

Thanks for that, Captain Obvious. You know what I meant. I know it’s hard for you, but try not to be a snippy little ass.

Last edited 3 months ago by Russn8r
lktraz
lktraz
3 months ago

30 years ago this wouldn’t have been a passing thought in Monroe County. That’s when a great many NY and NJ residents began to flee the insane tax situations in those areas. Monroe, Northampton, Pike and portions of Wayne and Lackawana (pretty much the Poconos) counties were the places these ex-patriots fled to and bought property. For them, it was cheaper to buy these properties and commute to NYC area than to remain living where they were. Unfortunately, they brought their liberal mindset with them and over time have diluted the conservative pool prevalent in this area. So now we… Read more »

willyd
willyd
3 months ago
Reply to  lktraz

Boy how true about the Libs moving into those areas, I’m originally from that area, when they moved in they blew the local economy right out of the water, they wanted sidewalks, full time fire and police force, city water/sewer, this area was a rural area and they wanted all of the city fringes!!!!!!!!! This caused the locals to move out as to keep their sanity!!!!!

swmft
swmft
3 months ago
Reply to  lktraz

we get them in florida in spades ,and they dont like the way we have things ,they move here and want you to follow their rules K M A Im here first dont like the range or planes move on I save the cannon for special people ;and dec7th each year, dad was at wheeler field . The play hiphop at volumes that make them deaf and complain about my noise go back to the city you trash

hippybiker
hippybiker
3 months ago
Reply to  lktraz

We have the same problem here in Florida. All the Liberal scum from the Northeast have infiltrated us and bring this crap here! It’s sickening.

The Crimson Pirate
The Crimson Pirate
3 months ago

I am not familiar with this particular case, but Pennsylvania has a “loser pays” statute. In Corliss vs Allentown (open carrier was detained by police) Mr. Corliss attorney was ultimately paid for by the city. So I would think that Mr. Barris and/or his attorney will get paid.

Protect defend serve
Protect defend serve
3 months ago

I think the township should reimburse Mr. Barris, for all associated costs and possible emotional distress it caused him and family. Another thing to consider in these “ noise” ordinances is people should be allowed hearing protecting and noise reducing suppressor use ( just like Europe) without NFA requirements and financial burdens imposed on owns, especially poorer people