PA Appeals Court Holds Township Zoning Subject to Second Amendment

Image from public court record

On 28 May, 2021, the Commonwealth Court of Pennsylvania reversed a decision which 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 judgement by the Court of Common Pleas of Monroe County dated 26 May, 2020. The plantiff, Jonathan Barris, appealed the decision on the grounds the 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 which 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 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 judgement 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 their 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 withing 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.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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