Sixth Circuit Sends Gun Range Zoning Case Back for Consideration After Bruen

U.S.A. –-(AmmoLand.com)-– On November 2, 2018, Oakland tactical filed a lawsuit against Howell Township, Michigan, for using zoning to prevent the ability to construct commercial ranges in the Township, particularly a thousand-yard range on property which was a former quarry. Oakland Tactical has an option to purchase the property to construct such a range.

On July 11, 2019, an amended complaint was filed by Oakland Tactical. From the complaint by Oakland Tactical:

3.Howell Township has prohibited the siting, construction, and operation of shooting ranges in the town through its zoning regulations by failing to provide or allow any designated areas within the town wherein the siting, construction, or operation of a shooting range would be permissible.

4.Through its actions and inactions, Howell Township has infringed the rights of Oakland Tactical Supply, LLC (“Oakland”) to site, construct, and operate a shooting range within the borders of Howell Township, effectively banning all firearms ranges within the township, and the rights of the individual Plaintiffs to practice for lawful purposes with firearms.

Oakland Tactical relied, among others, on the Ezell case from Chicago, where the Seventh Circuit ruled Chicago could not ban commercial gun ranges in Chicago or use a complicated regulatory scheme to do so.

On September 10, 2020, in the United States District Court, Eastern District, Southern Division, Judge Bernard A. Friedman dismissed the lawsuit on the grounds the zoning ordinance did not infringe on the Plaintiffs’ Second Amendment rights.  From the order to dismiss:

Defendant seeks dismissal of the complaint on a number of grounds, but the Court is persuaded that the complaint should be dismissed for failure to state a claim because defendant violated none of plaintiffs’ Second Amendment rights by denying the requested zoning amendment at issue.

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None of the cases plaintiffs cite, and none of which the Court is aware, suggest tha ta municipality must permit a property owner (or a property lessee) to construct, and for interested gun owners to use, an outdoor, open-air, 1,000-foot shooting range, such as plaintiffs propose. Nor have plaintiffs cited a single case that suggests Howell Township must change its zoning ordinance to permit the construction and use of such a facility as a matter of right anywhere within the AR district, which in this case comprises fully two-thirds of the township’s land. The claimed right simply is not encompassed by the Second Amendment.

On March 10, 2021, the case was appealed to the Sixth Circuit.

The decision in Bruen was published on June 22, 2022.

The Sixth Circuit vacated the order to dismiss and remanded the Oakland Tactical case back to the District Court on August 5, 2022, for consideration under the standards required by Bruen.  From the Sixth Circuit order:

We are unable to apply this standard based on the record and arguments currently before us.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.3 See, e.g.,id.at 2134–35 (concluding that the Second Amendment plainly covers a right to bear arms in public for self-defense). If the district court concludes that Oakland Tactical’s proposed course of conduct is covered by the plain text of the Second Amendment, 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. See, e.g.,id.at 2138 (concluding that “the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense” or“limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense”).

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For the foregoing reasons, we VACATE the district court’s grant of judgment on the pleadings and its order denying reconsideration and REMAND for further proceedings consistent with this opinion.

The District Court must first determine if the zoning case infringes on the exercise of Second Amendment rights. If the Court decides it does not violate the Second Amendment, the case will likely be appealed to the Sixth Circuit again.

If the District Court finds zoning, in this case, infringes on Second Amendment rights, the defendants are required to deliver proof a historical precedent for such regulation has been widely accepted in American history, with precedents near to either the ratification of the Second Amendment in 1791 or ratification of the Fourteenth Amendment in 1868.

Zoning cases are nearly all “means-ends” cases, where local governments restrict land use as a means to an end.  Zoning is a relatively recent development, created during the Progressive era after 1900.

Bruen states that “means-ends” cases are precluded by the Second Amendment.

In Pennsylvania, a state appeals court ruled a zoning ban on discharging firearms on private property was an infringement on the Second Amendment, citing Ezell.

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.